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 A: 
 
 ELEMENTS 
 
 INTERNATIONAL LAW
 
 ELEMENTS 
 
 INTERNATIONAL LAW. 
 
 HENRY WHEATON, LL.D., 
 
 MINISTER OP THE UNITED STATES AT THE COURT OF PRUSSIA ; CORRESPONDING MEMBER OF THK 
 
 ACADEMY OF MORAL AND POLITICAL SCIENCES IN THE INSTITUTE OF FRANCE ; 
 
 HONORARY MEMBER OF THE ROYAL ACADEMY OF SCIENCES AT BERLIN, 
 
 ETC., ETC. 
 
 Oftuttmt, 
 
 EDITED WITH NOTES, AND AN APPENDIX OF STATUTES 
 
 AND TREATIES, BRINGING THE WORK DOWN 
 
 TO THE PRESENT TIME. 
 
 A. C. BOYD, ESQ., LL.B. (CAMB.), 
 
 SRISTKR-AT-LAW, OF THE INNER TEMPLE, AKD MIDLAND CIRCUIT, AUTHOR OF 
 "THE MERCHANT SHIPPING LAWS." 
 
 LONDON : 
 
 STEVENS & SONS, 119, CHANCERY LANE, 
 
 ITsfo |)ttbli8|]trg anb 
 1878.
 
 LONDON: 
 BRADBCRY, AONEW, & CO., PRINTKRP, WniTEFRIARS.
 
 EDITOR'S PREFACE. 
 
 WHEATON'S " Elements of International Law " 
 was first published in 1836, in two editions, one 
 appearing in Philadelphia, and the other in London. 
 The third edition came out in 1846, in Philadelphia. 
 In 1848, a French edition of the work was published 
 at Leipsic and Paris ; and in 1853 a second French 
 edition was brought out at the same places. In 
 1857, an edition in English (called the sixth) was 
 edited by Mr. "W. B. Lawrence, and published at 
 Boston. A second edition, by the same editor, 
 appeared in 1863. The next edition, published in 
 1864, was a translation of the work into Chinese, 
 and was executed by order of the Chinese Govern- 
 ment. The edition after that was edited by Mr. 
 R. H. Dana, and appeared in 1866 ; and since that 
 time, there being no other edition in the English 
 language, the work has been long out of print. 
 The present edition was undertaken at the sugges- 
 tion of the publishers, there being no apparent 
 probability of any new edition being brought out, 
 either in England or America. The great value 
 
 1081698
 
 vi EDITOR'S PREFACE. 
 
 of Mr. Wheaton's treatise, and the importance of 
 international law at the present moment, must 
 be its justification. 
 
 The original text of the author having, as Mr. 
 Dana says in his preface, " become, by the death of 
 Mr. Wheaton, unalterable," it is here reproduced as 
 left by him, and the numbering of the sections 
 adopted by Mr. Dana has been preserved for the 
 sake of convenience. The notes of the present 
 edition are entirely original, and are not taken from 
 those of any previous edition. It has of course 
 been necessary to refer to many of the same events 
 and judicial decisions discussed by the previous 
 editors, and without this the work would have been 
 utterly incomplete ; but, where their notes have 
 been used, reference is made to them as to any 
 other work. 
 
 The notes to this edition are interspersed through- 
 out the text, but, being printed in a different type, 
 the reader can have no difficulty in distinguishing 
 the original work from that for which the present 
 editor is responsible. All footnotes added to this 
 edition are enclosed in brackets. A new Appendix 
 has been added, containing the English and Ame- 
 rican statute law of Naturalization, Extradition, 
 and Foreign Enlistment ; the English Naval Prize 
 Act, the Treaty of Washington, and extracts from 
 the most important treaties relating to the Black
 
 EDITORS PREFACE. Vll 
 
 Sea, the Dardanelles, and Bosphorus, and Turkish 
 affairs, which are now so prominently before the 
 public. An entirely new and full Index has been 
 compiled, by which it is hoped that anything in the 
 work may be readily found. 
 
 It has been the aim of the present editor to bring 
 the work down to the present time, by recording in 
 the notes the most important diplomatic transac- 
 tions ; the leading decisions of English, American, 
 and Continental Courts ; and the opinions of the 
 most eminent publicists which have appeared since 
 the date of the last edition issued by the author' 
 himself. For this purpose the English parliamentary 
 papers and law reports, the American diplomatic 
 correspondence and the decisions of the Supreme 
 and other Courts of the United States, the writings 
 of the most eminent modern authors on the subject, 
 and other authoritative sources of international law 
 have been consulted, and referred to throughout. 
 
 The editor begs to acknowledge the debt of 
 gratitude which he owes to Mr. Hertslet for the 
 publication of his " Map of Europe by Treaty," the 
 use of which has immensely facilitated his labours. 
 
 In cases where the interests of England and 
 America have been in conflict, the editor has en- 
 deavoured, and hopes he has succeeded, in taking 
 an impartial view of the controversy ; and he also
 
 Vlll EDITOR S PREFACE. 
 
 ventures to hope that this edition may be as useful 
 to Americans as to Englishmen. 
 
 The editor has also endeavoured to keep the work 
 within the smallest limits consistent with anything 
 like completeness, and if the reader should be of 
 opinion that important topics have either been 
 omitted or been dealt with too shortly, it is hoped 
 that this may be partially excused by the acces- 
 sible form in which the work is presented. The editor 
 also pleads the difficulty of selecting the most im- 
 portant points from the immense mass of materials 
 furnished by recent times, as an excuse for any 
 omissions. For those who may wish to pursue any 
 particular topic further, the references in the foot- 
 notes have been made as full as possible. 
 
 In conclusion, it is hoped that the undoubted 
 value of Mr. Wheaton's work will compensate those 
 who read it for the shortcomings of the additions 
 to it. 
 
 A. C. BOYD. 
 
 3. HAIICOURT BVILDINGS, TEMPLE, 
 $th February, 1878.
 
 ADVERTISEMENT TO THE FIRST EDITION. 
 
 THE object of the Author in the following attempt to collect 
 the rules and principles which govern, or are supposed to 
 govern, the conduct of States, in their mutual intercourse in 
 peace and in war, and which have therefore received the name 
 of International Law, has heen to compile an elementary work 
 for the use of persons engaged in diplomatic and other forms 
 of public life, rather than for mere technical lawyers, although 
 he ventures to hope that it may not be found entirely useless 
 even to the latter. The great body of the rules and principles 
 which compose this law is commonly deduced from examples 
 of what has occurred or heen decided, in the practice and 
 intercourse of nations. These examples have been greatly 
 multiplied in number and interest during the long period 
 which has elapsed since the publication of Vattel's highly 
 appreciated work ; a portion of human history abounding in 
 fearful transgressions of that law of nations which is supposed 
 to be founded on the higher sanction of the natural law (more 
 properly called the law of God), and at the same time rich in 
 instructive discussions in cabinets, courts of justice, and 
 legislative assemblies, respecting the nature and extent of the 
 obligations between independent societies of men called States. 
 The principal aim of the Author has been to glean from these 
 sources the general principles which may fairly be considered 
 to have received the assent of most civilized and Christian 
 nations, if not as invariable rules of conduct, at least as rules
 
 X ADVERTISEMENT TO THE FIRST EDITION. 
 
 which they cannot disregard without general obloquy and the 
 hazard of provoking the hostility of other communities who 
 may be injured by their violation. Experience shows that 
 these motives, even in the worst times, do really afford a 
 considerable security for the observance of justice between 
 States, if they do not furnish that perfect sanction annexed 
 by the lawgiver to the observance of the municipal code of 
 any particular State. The knowledge of this science has, 
 consequently, been justly regarded as of the highest import- 
 ance to all who take an interest in political affairs. The 
 Author cherishes the hope that the following attempt to 
 illustrate it will be received with indulgence, if not with 
 favour, by those who know the difficulties of the undertaking. 
 
 BERLIN, January 1, 1836.
 
 CONTENTS. 
 
 PAGE 
 
 EDITOR'S PREFACE v 
 
 ADVERTISEMENT TO THE FIRST EDITION ix 
 
 TABLE OF CASES CITED xv 
 
 PART FIRST. 
 
 DEFINITION, SOURCES, AND SUBJECTS OF INTERNATIONAL 
 LAW. 
 
 CHAPTER I. 
 
 Definition and Sources of International Law .... 1 
 
 CHAPTER II. 
 
 Nations and Sovereign States 26 
 
 PART SECOND. 
 
 ABSOLUTE INTERNATIONAL RIGHTS OF STATES. 
 CHAPTER I. 
 
 Rights of Self-preservation and Independence 77 
 
 CHAPTER II. 
 
 Rights of Civil and Criminal Legislation 105
 
 CONTENTS. 
 
 CHAPTER HA. 
 
 PAGE 
 
 National Character and Domicile . 201 
 
 CHAPTER III. 
 
 Rights of Equality 213 
 
 CHAPTER IV. 
 
 Rights of Property .220 
 
 PART THIRD. 
 
 INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC 
 RELATIONS. 
 
 CHAPTER I. 
 
 Rights of Legation . 272 
 
 CHAPTER II. 
 
 Rights of Negotiation and Treaties 309 
 
 PART FOURTH. 
 
 INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE 
 RELATIONS. 
 
 CHAPTER I. 
 
 Commencement of War, and its immediate effects .... 349 
 
 CHAPTER II. 
 
 Rights of War as between Enemies 404
 
 CONTENTS. Xlll 
 
 CHAPTER III. 
 
 PAGE 
 
 Rights of War as to Neutrals 484 
 
 CHAPTER IV. 
 
 Treaty of Peace 623 
 
 APPENDICES. 
 
 A. English and American Naturalization Acts 633 
 
 B. ,, ,, Extradition Acts 645 
 
 C. ,, Foreign Enlistment Acts . . . .662 
 
 D. English Naval Prize Act 677 
 
 E. Treaty of Washington . . 688 
 
 F. Extracts from Treaties relating to Turkey 705 
 
 INDEX 715
 
 TABLE OF CASES CITED. 
 
 ABIGAIL, The, 428 
 Acteon, The, 437 
 Actif, The, 448 
 Adam, In re, 113 
 Adela, The, 500 
 Adeline, The, 444 
 Admiral, The, 599 
 Adventure, The, 450 
 Aerman (Von), Ex parte, 165, 661 
 Aina, The, 427 
 Aitchison v. Dixon, 202 
 Alabama, The, 521 
 Alby, The, 377 
 
 Alerta and Cargo, The, v. Bias, 514 
 Alexander, The, 374 
 Alexander v. Duke of Wellington, 431 
 Alexander's cotton (Mrs.), 354, 412 
 Amistad de Rues, 504, 514 
 Anderson's case, 161 
 Andromeda, The, 597, 604 
 Anna, The, 240, 498 
 Anna, Catherina, The, 589 
 Anna, Maria, The, 432 
 Aunandale, The, 402 
 Anne, The, 500 
 Anstruther v. Adair, 119 
 Antelope, The, 144, 183 
 Antonia Johanna, The, 396 
 Apollo, The, 576 
 Ariadne, The, 403 
 Ariel, The, 426, 427 
 Armstrong v. Lear, 186 
 Arrogante Barcelones, The, 504, 514 
 Aspinwall v. Queen's Proctor, 305 
 Astrea, The, 449 
 Atalanta, The (6 C. Rob.), 581 
 i. _ (3 Wheaton), 613 
 
 Atlas, The, 426 
 Attorney- General v. Bowens, 186 
 
 v. Campbell, 114, 
 
 115 
 Aurora, The, 403, 427 
 
 BAIGORY, 'The, 597, 604 
 Baltazzi v. Ryder, 605 
 Banda and Kirwee Booty, The, 453 
 Banfield v. Soloman, 188 
 
 Barbuit's case, 284 
 
 Battle, The, 427 
 
 Becquet v. McCarthy, 196 
 
 Bell v. Kennedy, 201, 203 
 
 Belle, The, 449 
 
 Bello Corrunes, The, 514 
 
 Bennett, In re, 162, 165 
 
 Bermuda, The, 584, 591 
 
 Berne, City of, v. Bk. of England, 35 
 
 Betsey, The, 382,595,597,598,603,605 
 
 Blendenliale, The, 452 
 
 Boedes Lust, The, 352 
 
 Bonati v. Welsh, 119 
 
 Bothnea, The, 432 
 
 Boussmaker, Ex parte, 366 
 
 Boyce v. Tabb, 181 
 
 Briggs v. The Light Boats, 135 
 
 British Prisoners, The, 661 
 
 Brodie v. Brodie, 199 
 
 v. Barry, 110 
 Brook v. Brook, 124 
 Brown v. U. S. 359, 365, 368 
 Brunei v. Brunei, 203 
 Brunswick, Duke of, v. King of 
 
 Hanover, 28, 136 
 Brutus, The, 579 
 Barley's case, 165, 169 
 Burton v. Pinkerton, 524 
 
 1 CAGLIARI, The, 169 
 Caldwell v. Vanvlissigen, 107 
 Caledonia, The, 403 
 Calvin's case, 43, 113 
 Calypso, The, 598 
 Cammel v. Sewell, 115 
 Campbell v. Gordon, 643, 645 
 Carl, The, 452 
 Carlotta, The, 437 
 Carolina, The, 580 
 Caroline, The, 300, 582 
 Carrington v. Merchant Ins. Co., 584 
 Castrique v. Imrie, 187 
 Catharina Elizabeth, The, 451, 611 
 Ceylon, The, 448 
 
 Charkieh, The, 28, 50, 134, 135, 136 
 Charlotte, The, 567, 576 
 Caroline, The, 451
 
 TABLE OF CASES CITED. 
 
 Chavasse, Exparte, 594 
 
 Cherokee Nation, The, v. State of 
 
 Georgia, 52 
 Chesapeake, The, 161 
 Cheshire, The 599 
 Chirac v. Chirac, 322, 643 
 Church v. Hubbard, 240 
 Circassian, The, 591, 596, 599, 604 
 Citade de Lisboa, The, 555 
 City of Berne v. Bank of England, 35 
 Clark v. Smith, 53 
 
 v. Cretico, 305 
 Clio, The, 474 
 Cohens v. Virginia, 284 
 Columbia, The, 596 
 Comet, The, 606 
 ' Commercen, The, 588 
 Comus, The, 135 
 Concepcion, La, 614 
 Confederate Note case, The, 354 
 Constancia, The, 427 
 Conway v. Beazley, 198 
 Cope v. Doherty, 25 
 Coppin v. Coppin, 110 
 Cornelius, The, 604 
 Cosmopolite, The, 474 
 Cotton, Mrs. Alexander's, 354, 412 
 Cotton plant, The, 430 
 Crockenden v. Fuller, 203 
 Curling v. Thornton, 114 
 
 DAIFJK, The, 466 
 
 Uainese v. Hale, 153 
 
 Damodhar Gordhan v. Deoram Kanzi, 
 
 413 
 
 Davis v. Packhard, 305 
 De Couche v. Savetier, 119 
 De Lane v. Moore, 119 
 Del Col v. Arnold, 432 
 Dent v. Smith, 153 
 Des Hais, In the goods of, 186 
 Desmare v. U. S., 203 
 Despatch, The, 451 
 De Wutz v. Hendricks, 495 
 Diana, The, 386, 604, 605 
 Diligentia, The, 449, 450 
 Divina Pastora, The, 32 
 Dolphin v. Robins, 198 
 Don v. Lippman, 121, 125 
 Donegani v. Donegani, 113 
 Dordrecht, The, 452 
 Dorsey v. Dorsey, 198 
 Dos Hermanos, The, 384 
 Dos Santos, case of, 661 
 Douglas v. Douglas, 204 
 Dred Scot v. Sandford, 183 
 Dree Gebroeders, The, 387 
 Duke of Brunswick, The, v. King of 
 
 Hanover, 28, 136 
 Dupont v. Pichon, 287 
 
 EAST INDIA Co. v. Campbell, 157 
 
 Ebenezer, The, 590 
 Edward, The, 584 
 Edward and Mary, The, 449 
 Eleanora Catherina, The, 437 
 Eliza Ann, The, 355 
 Elsebe, The, 431 
 Emily St. Pierre, The, 450 
 Erstern, The, 556 
 Esposito v. Bowden, 180, 380 
 Este v. Smith, 119 
 Estrella, The, 454, 514 
 Etruseo, The, 500 
 Evert, The, 576 
 .Exchange, The, 135, 514 
 Express, The, 378 
 
 FAMA, The, 412, 
 . Fanny, The, 504, 612 
 Farez (Francois), In re, 661 
 Felicity, The, 433 
 Fergusaon v. Fyffe, 121 
 Fisher, In re, 157 
 Fitzsimmons v. The Newport Ins. Co. , 
 
 601, 604 
 
 Flad Oyen, The, 7, 456 
 Flemtning v. Page, 412, 413 
 Fletcher v. Peck, 51 
 Florida, The, 522 
 Forbes v. Cockrane,,180, 183 
 
 v. Forbes, 202, 203 
 Forest King, The, 605 
 Forsigheid, The, 452 
 Foster v. Neilson, 320 
 Fox, The, 465 
 Francis, The, 426 
 Franciska, The (Northcote v. Douglas) 
 
 595, 600 
 
 Francois Farez, In re, 661 
 Franconia, The, 25, 237, 239 
 Frankland v. McGusty, 196 
 Franklin, The, 377, 449, 584 
 Frau Ilsabe, The, 595 
 Freke v. Lord Carberry, 110 
 Freundschaft, The, 396 
 Friendship, The, 587 
 Furtado v. Rogers, 366 
 
 GAOE, The, 450 
 
 Gaily, In the goods of, 117 
 
 Gauntlet, The, 524 
 
 Geipel v. Smith, 596, 604 
 
 Genoa and its Dependencies, 430 
 
 Georgia, The, 427 
 
 Georgia, State of, v. Stanton, 52 
 
 Georgiana, The, 428, 448 
 
 Gertruyda, The, 352 
 
 Gesellschaft Michael, The, 576 
 
 Gladstone v. Musurus Bey, 136, 284 
 
 Godard v. Gray, 196 
 
 Goss v. Withers, 430 
 
 Grace, The Slave, 183 
 
 Grand Para, The, 514 
 
 Grange, The, 503
 
 TABLE OF CASES CITED. 
 
 Gray Jacket, The, 375 
 Griswold v. Wuddington, 880 
 GuiJlaume Tell, The, 452 
 Guyer v. Daniel, 202 
 Gumbe's case, 412 
 
 HAABET, The, 576 
 
 Haklane v. Eckford, 204 
 
 Halley, The, 193 
 
 Hamilton v. Dallas, 204 
 
 Hampton, The, 427 
 
 Hampton v. McConnel, 196 
 
 Hanger v. Abbott, 377, 378 
 
 Hardner v. Woodruff, 354 
 
 Harrison v. Sterry, 121 
 
 Harmony, The, 383 
 
 Haver v. Yaker, 321 
 
 Haycraftv. U. S., 412 
 
 Heinrich, In re, 661 
 
 Helen, The, 449, 594 
 
 Helena, The, 51 
 
 Hill v. Good, 124 
 
 Hobbs v. Henning, 578 
 
 Hodgson v. l)e Beaucht'sne, 201, 204 
 
 Hoffnung, The, 602 . 
 
 Holdent 1 . Joy, 53 
 
 Holmes v. Jermison, 157, 158 
 Hoop, The, 372, 476 
 , Hope, The, 474 
 
 Horatio, The, 448 
 
 Hoyt v. Gelston, 35, 515 
 . Huascar, The, 172 
 A Hudson v. Guestier, 450 
 
 Hullet v. King of Spain, 136 
 
 Huntress, The, 437 
 
 Hurtige Hane, The, 17 
 
 Hyde v. Hyde, 125 
 
 IDA, The, 426, 427 
 Illeanon Pirates, The, 27 
 Imina, The, 584 
 ' Indian Chief, The, 384, 396 
 India, The Secretary of State for, v. 
 
 Sahaba, 27 
 Inglis v. Sailor's Snug Harbour, 204, 
 
 206 
 
 International, The, 524 
 Invincible, The, 514 
 Ionian Ships, The, 47 
 
 JAUNCEY v. Sealey, 1 86 
 Jecker v. Montgomery, 377, 452 
 Jeune Eugenie, La, 173 
 John aud Jane, The, 450 
 John Gilpin, The, 604 
 Johnson v. Mclntosh, 223 
 Jonge Klassina, The, 396 
 
 Margaretta, The, 567, 576 
 
 Petronella, The, 598 
 
 Tieter, The, 590 
 
 Tobias, The, 576 
 Joseph, The, 376 
 Josephine, The, 426, 599 
 
 Juffrow Catharine, The, 377, 388 
 
 JV1 aria Schroeder, The, 604, 606 
 Julia, The, 403 
 
 KAJNE, In re, 661 
 Kelly v. Harrison, 43 
 Kenuett v. Chambers, 38, 495 
 KOIT v. Kerr, 198 
 Kershaw v. Kelsey, 377 
 King v. Foxwell, 201, 204 
 King of Spain v. Oliver, 136 
 King of Two Sicilies v. Wilcox, 43 
 
 LACONIA, The, 153 
 Lacroix, In the goods of, 116 
 Lamar v. Browne, 430 
 Lariviere v. Morgan, 136 
 Latimer v. Poteet, 53 
 Leitensdorfer v. Webb, 412 
 LeSueurv. Le Sueur, 119, 202 
 Lennie Mutineers, The, 161 
 Lisette, The, 607 
 Lolly's case, 197, 198 
 Lord N1son, The, 449 
 Louis, The, 144, 178, 240 
 Louisa, The, 452 
 
 Agnes, The, 604 
 Luna, The, 595 
 Luther v. Borden, 415 
 
 M. MOXHAM, The, 193 
 
 Mackey v. Coxe, 53 
 
 Madonna del Burso, The, 17 
 
 Madonna della Gracia, The, 377 
 
 Magdalena, The, 513 
 
 Magdalena Steam Navigation Co. v. 
 
 Martin, 284 
 
 Magellan Pirates, The, 167 
 Maguire v. Maguire, 198 
 Maisonnaire v. Keating, 476 
 Major Barbour, The, 605 
 Maltass v. Maltass, 202 
 Manilla, The, 35 
 
 Maria, The, 25, 465, 562, 590, 610 
 Marianna, The, 426, 557 
 Marianna Flora, The, 144 
 Mary, The, 449 
 Mary and Susan, The, 395 
 Mary Ford, The, 450 
 Matchless, The, 590 
 McCardale's case, 415 
 McConnell v. Hampden, 416 
 McGoon v. Scales, 110 
 Mcllvaine v. Coxe's Lessee, 30 
 McKee v. U. S. 474 
 Melan v. The Duke of FitzJames, 193 
 Memor v. Happersett, 184 
 Mentor, The, 604, 629 
 Mercurius, The, 584, 598 
 Messina v. Petrocochino, 153, 196 
 Miller . The Resolution, 4;i2, 47d 
 Miller v. The U. S., 169, 412 
 Mills v. Duryee, 196
 
 TABLE OF CASES CITED, 
 
 Mississippi, State of, v. Johnson, 73 
 Mitchell v. Harmony, 411 
 
 v. U. S. 202, 203, 377 
 Milligan, Exparte, 413, 414, 415 
 Moodie v. The Alfred, 513 
 
 - v. The Phoebe Ann, 513 
 Monroe v. Douglas, 187 
 Monte Allegre, The, 517 
 Montgomery v. U. S., 377 
 Moore v. Darell, 114 
 Moultrie v. Hunt, 115 
 Muvray v. The Charming Betsy, 207 
 Mure v. Kaye, 157 
 
 NANCY, The, 585 
 Nassau, The, 427 
 Nayade, The, 355 
 Naylor v. Taylor, 594 
 Nelson, The Lord, 449 
 Neptune, The, 575 
 Neptunus, The, 379, 576, 599 
 Nereide, The, 25, 532, 612 
 Nereyda, The, 504, 514 
 Neutralitet, The, 584, 606 
 Newton, The, 13S 
 Northcotev. Douglas (The Franciska), 
 
 595, 600 
 
 Nostra Signora de Begona, The, 576 
 Novelli v. Eossi, 196 
 Nuestra Siguora de los Dolores, The, 
 
 366 
 
 Nuestra Signora de la Caridad,The, 32 
 Nueva Anna, The, 35 
 
 OCEAN, The, 387 
 Ochsenbein v. Papelier, 196 
 Octavie, The, 305 
 Odin, The, 427 
 Ogden v. Saunders, 121 
 Olivera v. Union Ins. Co., 605 
 Omnibus, The, 427 
 Oppeuheim v. Russell, 427 
 Orozembo, The, 580 
 Osbora v. U. S. Bank, 643 
 Ostsee, The, 465 
 Ouachita Cotton, The, 474 
 
 P. & 0. STRAM NAVIGATION Co. v. 
 
 Shand, 121 
 
 Packet de Bilboa, The, 426 
 Palme, The, 402 
 Pauaghia Rhornba, The, 605 
 Patria, The, 378 
 Peacock, The, 431 
 Peel, The Sir William, 500 
 Pcnsamento Felix, The, 449 
 Peterhoff, The, 577, 578, 591, 595, 
 
 606 
 
 Phelps v. Baker, 198 
 Phillips v. Allen, 121 
 Phillips v. Eyre, 193, 415 
 Phoenix, The, 398 
 Pinner v. Arnold, 180 
 
 Pitt v. Pitt, 198 
 
 Polka, The, 454 
 
 Portland, The, 396 
 
 Potsdam, The, 605 
 
 Price v. Dewhursts, 186 
 
 Prigg v. Pennsylvania, 184 
 
 Princessa, The, 589 
 
 Prins Frederick, The, 135 
 
 Priolean*. U. S., 136 
 
 Prize Causes, The, 37, 169, 354, 355 
 
 Progress The, 443 
 
 Protector, The, 378 
 
 Purissima Coucepcion, The, 500, 62$ 
 
 R. v. Anderson, 141, 143 
 
 v. Cliadwick, 124 
 
 v. Eyre, 415 
 
 v. Gould, 161 
 
 v. Keyn (The Franconia), 25, 237, 
 
 239 
 
 v. Lesley, 141 
 
 v. Seberg, 402 
 
 v. Sattler, 141 
 
 v. Tubbee, 161 
 
 v. Zulueta, 180 
 Ranger, The, 576, 584 
 Rapid, The, 374 
 Recovery, The, 25, 465 
 Reform, The, 474 
 Rendsborg, The, 589 
 Respub (U. S.) v. Deacon, 157 
 
 v. Green, 157 
 
 Republic of Peru v. Weguelin, 136 
 Ricord v. Bettenham, 476 
 Ringende Jacob, The, 584 
 Robinson v. Campbell, 109 
 Rosalie and Betty, The, 585 
 Rose v. Himely, 169, 187, 354 
 
 SALVADOB, The, 524 
 
 Sally, The, 138 
 
 Sally Magee, The, 427 
 
 San Roman, The, 378 
 
 Sansom, The, 437 
 
 Santa Brigada, The, 448, 452 
 . Santa Cruz, The, 359, 442 
 
 Santa Maria, The, 517 
 t Santissima Trinidad, The, 135, 143, 
 
 454, 504, 514, 526 
 'Santos v. Illidge, 180 
 
 Sapphire, The, 136 
 
 Sarah Christina, The, 584 
 
 Sault'. His Creditors, 119 
 
 Sawyer v. Marine Fire lus. Co., 187 
 Schooner Exchange, The, v. McFadden 
 and others, 135, 514 
 
 Schibsby^. Westenholz, 191 
 
 Sea Lion, The, 474 
 
 Sechs Geschwistern, The, 427 
 
 Secretary of State for India v, Sahaba, 
 
 Selkrigg v. Davis, 188 
 
 Sommes v. Hertford Ins. Co. r 378
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 Serhassan Pirates, The, 27 
 
 Sliarpe v. Crispin, 204 
 
 Shaw v. Attorney- General, 198 
 
 v. Gould, 199 
 - v. Shaw, 203 
 
 Simonin r. Mallac, 123, 124 
 Sir William Peel, The, 500 
 Slave Grace, The, 183 
 Slavers, The, 183 
 Smith v. Condry, 193 
 
 v. Shaw, 414 
 Snell v. Dwight, 377 
 Snipe, The, 465 
 
 Society for the Propagation of the 
 Gospel in Foreign Parts, The, v. 
 The Town of New Haven, 323 
 
 Sophia, The, 628 
 
 Sorensen v. Reg., 305 
 
 Sottomayor v. De Barros, 124 
 
 Spratt v. Spratt, 643 
 
 Springbok, The, 591 
 
 St. Luke's Hospital v. Barclay, 284, 
 305 
 
 St. Lawrence, The, 375 
 
 Staadt Embden, The, 576 
 
 Stanley v. Berues. 114 
 
 Stark v. Chesapeake Ins. Co., 643 
 
 State of Georgia, The, v. Stan ton, 52 
 
 State of Mississippi v. Johnson, 53 
 
 Statira, Le, 436 
 
 Steamer Nassau, The, 427 
 , Stephen Hart, The, 591 
 
 Stert, The, 606 
 
 S trader v. Graham, 183 
 
 Strother v. Lucas, 43 
 
 Sueur, Le v. Le Sueur, 119, 202 
 
 Success, The, 355, 401 
 
 Susa, The, 396 
 
 Sutton v. Sutton, 323 
 
 TALBOT v. Jansen, 513 
 
 Talbott r. Seeman, 437, 452 
 v. The Three Briggs, 452 
 
 Tatnall v. Hankey, 115 
 
 Taylor v. Best, 284, 287 
 Teutonia, The, 355, 378 
 
 Terrett v. Taylor, 43 
 
 Texas v. White, 26, 28, 32, 354 
 Thirty Hogsheads of Sugar, The, 401 
 
 Theresa Bonita, The, 352 
 
 Thompson ;. Powles, 35 
 
 Thomyris, The, 590 
 
 Thorington v. Smith, 31, 354 
 
 Tirnan, In re, 161, 169 
 
 Tobago, The, 426 
 
 Tovey v. Lindsay, 197 
 
 Triheten, The, 602 
 
 Triton, The, 432 
 
 Trotter v. Trotter, 115 
 
 Trueman Smith, In re, 161 
 
 Turner, Le, 427 
 Twee Gebroebers, The, 498 
 
 Twee Juffroweii, The, 576 
 
 Twende Brodre, The, 576 
 
 U. S. v. Arredondo, 320 
 
 v. Cook, 53 
 
 . Crosby, 109 
 
 v. Davis, 158, 661 
 
 v. Deacon, 157 
 
 v. Diekelman, 126 
 
 v. Green, 157 
 
 v. Grossmayer, 378 
 
 v. Guillem, 395 
 
 v. Guinet, 513 
 
 v. Hand, 284 
 
 - v Hayward, 412 
 
 v. Holliday, 53 
 
 v. Joseph, 53 
 
 - v. Kazinski, 516 
 
 v. Klintock, 168, 169 
 
 - Lyon et al. v. Huckabee, 354 
 
 - v. McRae, 43 
 
 v. Moreno, 412 
 
 v. Padelford, 412 
 
 - v. Palmer, 32, 35 
 
 - v. Percheman, 412 
 
 - v. Pirates, 168 
 
 - v. Quincey, 515 
 
 - v. Havara, 284 
 
 v. Key burn, 517 
 
 - v. Reynes, 321 
 
 - v. Rice, 412, 413 
 v. Rogers, 53 
 
 - v. Smith, 166 
 
 - v. Wagner, 35, 136 
 
 - v. Wilder, 135 
 
 - v. Wiley, 378 
 
 Udny v. Udny, 201, 202, 203 
 
 VANDYCK v. Whitmore, 474 
 1 Venus, The, 395, 396 
 
 Vigilaiitia, The, 396, 401 
 
 Virgiuie, La, 384 
 i Virginius, The, 171 
 
 Viveash v. Becker, 305 
 
 Von Aermna, Ex parte, 165, 661 
 
 Vrow Anna Catharina, The, 398, 401, 
 500, 589 
 
 Vrow Howina, The, 578 
 
 Vrow Judith, The, 605 
 
 WALLACE v. Attorney-General, 115 
 
 Ward v. Smith, 378 
 
 War Onskan, The, 437 
 
 Ware v. Hilton, 378 
 
 Wai-render v. Warrender, 119, 197 
 
 Washburn, In re, 157 
 
 Watts v. Schrimpton, 119 
 
 Welvaart Van Pillaw, The, 604 6(>7 
 
 White v. Hart, 354 
 
 Whicker v. Hume, 204 
 
 Wight, The, 449 
 
 William, The, 590 
 
 William Bagiley, The, 380 
 
 William H. Northrop, The, (i(>4
 
 XX 
 
 TABLE OF CASES CITED. 
 
 Williams v. Amroyd, 187 
 
 v. Brown, 183 
 "Willison v. Paterson, 378 
 Wilson, In re, 165 
 Wilson v. Marryatt, 118 
 Windsor, In re, 161, 165 
 Wolff v. Oxholm, 25, 368 
 Wolfe Tone's Case, 413 
 
 Woltonw. Gavin, 413 
 Worcester v. State of Georgia, 53 
 Wren, The, 607 
 Wright's Trusts, 119 
 
 YEATON v. Fry, 604 
 ZOLLVEBEIN, The, 25 

 
 ELEMENTS OF 
 INTERNATIONAL LAW. 
 
 PART FIRST. 
 
 DEFINITION, SOURCES, AND SUBJECTS OF 
 INTERNATIONAL LAW. 
 
 CHAPTER I. 
 
 DEFINITION AND SOURCES OF INTERNATIONAL LAW. 
 
 THERE is no legislative or judicial authority, recognised .* 
 by all nations, which determines the law that regulates the interna- 
 reciprocal relations of States. The origin of this law must be tional Law - 
 sought in the principles of justice, applicable to those rela- 
 tions. While in every civil society or State there is always a 
 legislative power which establishes, by express declaration, 
 the civil law of that State, and a judicial power which inter- 
 prets that law, and applies it to individual cases, in the great 
 society of nations there is no legislative power, and conse- 
 quently there are no express laws, except those which result 
 from the conventions which States may make with one another. 
 As nations acknowledge no superior, as they have not or- 
 ganised any common paramount authority, for the purpose of 
 establishing by an express declaration their international law, 
 and as they have not constituted any sort of Amphictyonic 
 magistracy to interpret and apply that law, it is impossible 
 that there should be a code of international law illustrated by 
 judicial interpretations.
 
 2 DEFINITION AND SOURCES 
 
 ' The inquiry must then be, what are the principles of 
 justice which ought to regulate the mutual relations of 
 nations, that is to say, from what authority is international 
 law derived ? 
 
 When the question is thus stated, every publicist will 
 decide it according to his own views, and hence the funda- 
 mental differences which we remark in their writings. 
 2. The leading object of Grotius, and of his immediate disci- 
 
 La^de 1 - pies and successors, in the science of which he was the 
 fined. founder, seems to have been, First, to lay down those rules 
 of justice which would be binding on men living in a social 
 state, independently of any positive laws of human institution ; 
 or, as is commonly expressed, living together in a state of 
 nature ; and, 
 
 Secondly, To apply those rules under the name of Natural 
 Law, to the mutual relations of separate communities living 
 in a similar state with respect to each other. 
 
 With a view to the first of these objects, Grotius sets out 
 in his work, on the rights of war and peace, (de jure belli ac 
 pads,} with refuting the doctrine of those ancient sophists 
 who wholly denied the reality of moral distinctions, and that 
 of some modern theologians, who asserted that these dis- 
 tinctions are created entirely by the arbitrary and revealed 
 will of God, in the same manner as certain political writers 
 (such as Hobbes) afterwards referred them to the positive 
 institution of the civil magistrate. For this purpose, 
 Grotius labours to show that there is a law audible in the 
 voice of conscience, enjoining some actions, and forbidding 
 others, according to their respective suitableness or repugnance 
 to the reasonable and sociable nature of man. " Natural law," 
 says he, " is the dictate of right reason pronouncing that there 
 is in some actions a moral obligation, and in other actions a 
 moral deformity, arising from their respective suitableness or 
 repugnance to the rational and social nature, and that, conse- 
 quently, such actions are either forbidden or enjoined by God, the 
 Author of nature. Actions which are the subject of this exertion 
 of reason, are in themselves lawful or unlawful, and are, there- 
 fore, as such necessarily commanded or prohibited by God " (a). 
 
 (a) "Jus nalurale est dictatum recta rationis, indicans actui alicni, ex ejus 
 convenientia aut disconvenientia cum ipsa natura rationali, inesse moralem
 
 OF INTERNATIONAL LAW. 3 
 
 The term Natural Law is hero evidently used for those 3. 
 rules of justice which ought to govern the conduct of men, as LawYdeiiti- 
 moral and accountable beings, living in a social state, inde- cal with 
 pendently of positive human institutions, (or, as is commonly G O ,I, or 
 expressed, living in a state of nature,) and which may more ^ lvme 
 properly be called the law of God, or the divine law, being 
 the rule of conduct prescribed by Him to his rational crea- 
 tures, and revealed by the light of reason, or the Sacred 
 Scriptures. 
 
 As independent communities acknowledge no common supe- Natural 
 rior, they may be considered as living in a state of nature with pi^Ao "the 
 respect to each other : and the obvious inference drawn by intercourse 
 the disciples and successors of Grotius was, that the disputes 
 arising among these independent communities must be deter- 
 mined by what they call the Law of Nature. This gave rise 
 to a new and separate branch of the science, called the Law of 
 Nations, Jus Gentium (i). 
 
 Grotius distinguished the law of nations from the natural 4. 
 law by the different nature of its origin and obligation, which tionslliJ*" 
 he attributed to the general consent of nations. In the intro- tinguisbed 
 duction to his great work, he says, " I have used in favour turai Law, 
 of this law, the testimony of philosophers, historians, poets, by Wrotlus - 
 and even of orators ; not that they are indiscriminately to 
 be relied on as impartial authority ; since they often bend to 
 the prejudices of their respective sects, the nature of their 
 argument, or the interest of their cause ; but because where 
 many minds of different ages and countries concur in the 
 same sentiment, it must be referred to some general cause. 
 In the subject now in question, this cause must be either a 
 just deduction from the principles of natural justice, or uni- 
 versal consent. The first discovers to us the natural law, the 
 second the law of nations. In order to distinguish these two 
 branches of the same science, we must consider, not merely 
 the terms which authors have used to define them, (for they 
 often confound the terms natural law and law of nations,) 
 
 turpitudinem, aut neeessitatem moralem, ac consequenter ab auctore naturae, 
 Deo, talein actum aut vetari aut prsecipi. 
 
 "Actus de quibus tale extat dictatum, debiti sunt aut illicit! per se. atque 
 ideo a Deo necessario prtecepti aut vetiti intellignntur." Grotius, de Jur. Bel. 
 ac Pac. lib. i. cap. 1, x. 1, 2. 
 
 (b) [With respect to the jus gentium as understood by the Romans, see 
 Maine's Ancient Law, ch. iii.] 
 
 B 2
 
 DEFINITION AND SOURCES 
 
 but the nature of the subject in question. For if a certain 
 maxim which cannot be fairly inferred from admitted princi- 
 ples is, nevertheless, found to be everywhere observed, there 
 is reason to conclude that it derives its origin from positive 
 institution." He had previously said, " As the laws of each 
 particular State are designed to promote its advantage, the 
 consent of all, or at least the greater number of States, may 
 have produced certain laws between them. And, in fact, it 
 appears that such laws have been established, tending to 
 promote the utility, not of any particular State, but of the 
 great body of these communities. This is what is termed 
 the Law of Nations, when it is distinguished from Natural 
 Law " (c). 
 
 All the reasonings of Grotius rest on the distinction, which 
 he makes between the natural and the positive or voluntary 
 Law of Nations. He derives the first element of the Law of 
 Nations from a supposed condition of society, where men live 
 together in what has been called a state of nature. That 
 natural society lias no other superior but God, no other code 
 than the divine law engraved in the heart of man, and an- 
 nounced by the voice of conscience. Nations living together 
 in such a state of mutual independence must necessarily be 
 governed by this same law. Grotius, in demonstrating the 
 accuracy of his somewhat obscure definition of Natural Law, 
 has given proof of a vast erudition, as well as put us in pos- 
 session of all the sources of his knowledge. He then bases 
 the positive or voluntary Law of Nations on the consent of 
 all nations, or of the greater part of them, to observe certain 
 rules of conduct in their reciprocal relations. He has en- 
 
 (c) "Usus sum etiam ad juris hujus probationem testimoniis philosopho- 
 rum, historicorum, poetarum, postremo et oratorum ; non quod illis indiscrete 
 credeudum sit ; solent enim sectae, argumento, causae servire : sed quod ubi 
 multi diversis temporibus ac locis idem pro certo affirmaiit, id ad causam uni- 
 versalem referri debeat ; qua? in nostris qusestionibus alia esse non potest qtiam 
 aut recta illatio ex naturae principiis procedens, aut communis aliquis consen- 
 sus. Ilia jus naturae indicat, hie jus gentium: quorum discriiuen non quidetn ex 
 ipsis testimoniis, (passim enim scriptores voce juris naiurce, et gentium pennis- 
 cent,) sed ex materiae qualitate intelligendum est. Quod enim ex certis prin- 
 cipiis certa argumentatione deduci non potest, et tamen ubique observutmn 
 apparet, sequitur ut ex voluntate libera ortum habeat. " ***** "Sed 
 sicut cujusque civitatis jura utilitatem suae civitatis respiciunt, ita inter civi- 
 tates aut oniues aut plerasque ex consensu jura quaedam nasci potuerunt ; et 
 nata apparent, quae utilitatem respicerent non ccetuum singulorum sed magnas 
 illius universitatis. Et hoc jus est quod gentium dicitnr, quoties id nomen a 
 jure naturali distinguimus. ' Grotius, de Jur. Bel. ac Pac. Prolegoin. 40, 17.
 
 OF INTERNATIONAL LAW. 
 
 deavoured to demonstrate the existence of these rules by 
 invoking the same authorities, as in the case of his definition 
 of Natural Law. We thus see on what fictions or hypotheses 
 Grotius has founded the whole Law of Nations. But it is 
 evident that his supposed state of nature has never existed- 
 As to the general consent of nations of which he speaks, it 
 can at most be considered a tacit consent, like the jus non 
 scriptum quod consensus facit of the Roman jurisconsults. 
 This consent can only be established by the disposition, more 
 or less uniform, of nations to observe among themselves the 
 rules of international justice, recognised by the publicists. 
 Grotius would, undoubtedly, have done better had he sought 
 the origin of the Natural Law of Nations in the principle of 
 utility, vaguely indicated by Leibnitz (d), but clearly ex- 
 pressed and adopted by Cumberland (e), and admitted by 
 almost all subsequent writers, as the test of international 
 morality (/). But in the time that Grotius wrote, this prin- 
 ciple which has so greatly contributed to dispel the mist with 
 which the foundations of the science of International Law 
 were obscured, was but very little understood. The principles 
 and details of international morality, as distinguished from 
 international law, are to be obtained not by applying to 
 nations the rules which ought to govern the conduct of in- 
 dividuals, but by ascertaining what are the rules of inter- 
 national conduct which, on the whole, best promote the 
 general happiness of mankind. The means of this inquiry 
 are observation and meditation ; the one furnishing us with 
 facts, the other enabling us to discover the connection of 
 these facts as causes and effects, and to predict the results 
 which will follow, whenever similar causes are again put into 
 operation (#). 
 
 Neither Hobbes nor Puffendorf entertains the same opinion 
 as Grotius upon the origin and obligatory force of the positive Jj 
 
 (d) Et jus quidem merum sive strictum nascitur ex principle servandae pacis ; 
 sequitas sivf. caritas ad ruajus aliquid contendit, ut dum quisqne alteri prodest 
 quantum potest, felicitatem suam atigeat in aliena; et ut verbo dicam, jus 
 strictum miseriam vitat, jus superius ad felicitatem tendit, sed qualis in hanc 
 mortalitatem cadit. Leibnitz, de Usu Actorum Publicorum, 13. 
 
 (c) Lex natural est propositio naturaliter cognita, actiones indicans effectri- 
 ces communis boni. Cumberland, dc Legibus Nature, cap. v. 1. 
 
 (/) Bentham's Principles of International Law. Works, Part VIII. p. 537. 
 Edit. Bowring. 
 
 (</) Senior, Edinburgh Review, No. 156, p. 310, 311.
 
 6 DEFINITION AND SOURCES 
 
 Law of tfa- Law of Nations. The former, in his work, De Give, says, 
 
 sertedTo " The natural law may be divided into the natural law of men, 
 
 ca] id b 6nti " an< * *k e natura * * aw of States, commonly called the Law of 
 
 Hobbesand Nations. The precepts of both are the same ; but since 
 
 Puffendorf. gt a t eSj when they are once instituted, assume the personal 
 
 qualities of individual men, that law, which when speaking 
 
 of individual men we call the Law of Nature, is called the 
 
 Law of Nations when applied to whole States, nations, or 
 
 people" (/i). To this opinion Puffendorf implicitly subscribes, 
 
 declaring that " there is no other voluntary or positive law of 
 
 nations properly invested with a true and legal force, and 
 
 binding as the command of a superior power" (i). 
 
 After thus denying that there is any positive or voluntary 
 law of nations founded on the consent of nations, and dis- 
 tinguished from the natural law of nations, Puffendorf pro- 
 ceeds to qualify this opinion by admitting that the usages and 
 comity of civilized nations have introduced certain rules for 
 mitigating the exercise of hostilities between them ; that 
 these rules are founded upon a general tacit consent; and 
 that their obligation ceases by the express declaration of any 
 party engaged in a just war, that it will no longer be bound 
 by them. There can be no doubt that any belligerent nation 
 which chooses to withdraw itself from the obligation of the 
 Law of Nations, in respect to the manner of carrying on war 
 against another State, may do so at the risk of incurring the 
 penalty of vindictive retaliation on the part of other nations, 
 and of putting itself in general hostility with the civilized 
 world. As a celebrated English civilian and magistrate (Lord 
 Stowell) has well observed, " a great part of the law of nations 
 stands upon the usage and practice of nations. It is intro- 
 duced, 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 further, and say that mere 
 general speculations would bear you out in a further progress ; 
 
 (h) Prsecepta utriusque eadem sunt ; scd quia civitates semel institute in- 
 ducuut proprietates hominum personales, lex quam, loqueiites de hominum 
 singulonim officio, naturalem dicimus, applicata totis civitatibus, nationibus 
 sive gentibus, vocatur jus gentium. Hobbes, De Cive, cap. xiv. 4. 
 
 (i) Oui sententiae et nos plane subscribimus. Nee praeterea aliud jus gen- 
 tium, voluntarium seu positivum dari arbitramus, quod quidem legis proprise 
 dictae vim liabeat, quse gentes tamquarn a superiore proiecta striiigat. Puf- 
 feiidorf, De Jure Natures et Gentium, lib. ii. cap. 3, 23.
 
 OF INTERNATIONAL LAW. 
 
 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 
 evidenced in their practice, does make a distinction, and 
 allows some, and prohibits other modes of destruction ; and a 
 belligerent is bound to confine himself to those modes which 
 the common practice of mankind has employed, and to re- 
 linquish those which the same practice has not brought within 
 the ordinary exercise of war, however sanctioned by its prin- 
 ciples and purposes " (k). 
 
 The same remark may be made as to what Puffendorf says 
 respecting the privileges of ambassadors, which Grotius sup- 
 poses to depend upon the voluntary law of nations; whilst 
 Puffendorf says they depend, either upon natural law, which 
 gives to public ministers a sacred and inviolable character, or 
 upon tacit consent, as evidenced in the usage of nations, con- 
 ferring upon them certain privileges which may be withheld 
 at the pleasure of the State where they reside. The dis- 
 tinction here made between those privileges of ambassadors, 
 which depend upon natural law, and those which depend upon 
 custom and usage, is wholly groundless ; since both one and 
 the other may be disregarded by any State which chooses to 
 1 ncur the risk of retaliation or hostility, these being the 
 only sanctions by which the duties of international law can be 
 enforced. 
 
 Still it is not the less true that the law of nations, founded 
 upon usage, considers an ambassador, duly received in another 
 State, as exempt from the local jurisdiction by the consent of 
 that State, which consent cannot be withdrawn without in- 
 curring the risk of retaliation, or of provoking hostilities on 
 the part of the sovereign by whom he is delegated. The same 
 thing may be affirmed of all the usages which constitute the 
 Law of Nations. They may be disregarded by those who 
 choose to declare themselves absolved from the obligation of 
 that law, and to incur the risk of retaliation from the party 
 specially injured by its violation, or of the general hostility of 
 mankind (I). 
 
 (k) The Plod Otjen, 1 C. Rob. 140. 
 
 (0 Wheatoii's History of the Law of Natious, p. 96.
 
 8 DEFINITION AND SOURCES 
 
 6. BynkersJioek (who wrote after Puffendorf, and before Wolf 
 
 tionsde Na " an( ^ Vattel,) derives the law of nations from reason and usage 
 rived from (ex ratioue et usu,) and founds usage on the evidence of 
 usage. treaties and ordinances (pacta et edicta,) with the comparison 
 of examples frequently recurring. In treating of the rights of 
 neutral navigation in time of war, he says, " Reason com- 
 mands me to he equally friendly to two of my friends who are 
 enemies to each other ; and hence it follows that I am not to 
 prefer either in war. Usage is shown by the constant, and, as 
 it were, perpetual custom which sovereigns have observed of 
 making treaties and ordinances upon this subject, for they 
 have often made such regulations by treaties to be carried into 
 effect in case of war, and by laws enacted after the commence- 
 ment of hostilities. I have said by, as it were, a perpetual 
 custom ; because one, or perhaps two treaties, which vary from 
 the general usage, do not alter the law of nations " (TO). 
 
 In treating of the question as to the competent judicature 
 in cases affecting ambassadors, he says, " The ancient juris- 
 consults assert, that the law of nations is that which is 
 observed in accordance with the light of reason, between 
 nations, if not among all, at least certainly among the greater 
 part, and those the most civilized. According to my opinion, 
 we may safely follow this definition, which establishes two dis- 
 tinct bases of this law ; namely, reason and custom. But in 
 whatever manner we may define the law of nations, and how- 
 ever we may argue upon it, we must come at last to this con- 
 clusion, that what reason dictates to nations, and what nations 
 observe between each other, as a consequence of the collation 
 of cases frequently recurring, is the only law of those who are 
 not governed by any other (unicum jus sit eorum, qui alio 
 jure non reguntur). If all men are men, that is to say, if 
 they make use of their reason, it must counsel and command 
 them certain things which they ought to observe as if by 
 mutual consent, and which being afterwards established by 
 
 (m) "Jus Gentium commune in lianc rem non aliunde licet discere, quam 
 ex ratione et usu. Ratio jubet ut duobus, invicem hostibus, sed mihi amicis, 
 seque aniicus sim ; et inde efficitur, ne in causa belli alterum alteri prseferam. 
 Usus intelligitur ex perpetua quodammodo paciscendi edicendique consuetu- 
 dine ; pactis euim Principes bsepe id egerunt in casu belli, saepe etiani edictis 
 contra quoscunque, Hagrante jam bello. Dixi, ex perpetud quodammodo con- 
 suetudine, quia unum forte alterum ve pactum, quod a consuetudiue reced.it, 
 Jus Gentium non niutat." Bynkershoek, Qusest. Jur. Pub. lib. j. cap. 10.
 
 OF INTERNATIONAL LAW. 
 
 usage, impose upon nations a reciprocal obligation ; without 
 which law, we can neither conceive of war, nor peace, nor 
 alliances, nor embassies, nor commerce " (n). Again, he 
 says, treating the same question : " The Roman and pontifical 
 law can hardly furnish a light to guide our steps ; the entire 
 question must be determined by reason and the usage of 
 nations. I have alleged whatever reason can adduce for or 
 against the question ; but we must now see what usage has 
 approved, for that must prevail, since the law of nations is 
 thence derived " (o). In a subsequent passage of the same 
 treatise, he says, "It is nevertheless most true, that the 
 States General of Holland alleged, in 1651, that, according to 
 the law of nations, an ambassador cannot be arrested, though 
 guilty of a criminal offence ; and equity requires that we 
 should observe that rule, unless we have previously renounced 
 it. The law of nations is only a presumption founded upon 
 usage, and every such presumption ceases the moment the 
 will of the party who is affected by it is expressed to the con- 
 trary. Huberus asserts that ambassadors cannot acquire or 
 preserve their rights by prescription ; but he confines this to 
 the case of subjects who seek an asylum in the house of a 
 foreign minister, against the will of their own sovereign. I 
 hold the rule to be general as to every privilege of ambas- 
 sadors, and that there is no one they can pretend to enjoy 
 against the express declaration of the sovereign, because an 
 express dissent excludes the supposition of a tacit consent, 
 and there is no law of nations except between those who volun- 
 tarily submit to it by tacit convention " (p). 
 
 The public jurists of the school of Puffendorf had considered g 
 the science of international law as a branch of the science of Wolf, 
 ethics. They had considered it as the natural law of indivi- 
 duals applied to regulate the conduct of independent societies 
 of men, called States. To Wolf belongs, according to Vattel, 
 the credit of separating the law of nations from that part of 
 natural jurisprudence which treats of the duties of individuals. 
 
 In the preface of his great work, he says, " That since such 
 is the condition of mankind that the strict law -of nature can- 
 
 (71) De Foro Legatorum, cap. iii. 10. 
 (o) Ibid., cap. vii. 8. 
 (p) Ibid., cap. xix. (5.
 
 DEFINITION AND SOURCES 
 
 not always be applied to the~government of a particular com- 
 munity, but it becomes[]necessary to resort to laws of positive 
 institution^more or less varying from the natural law, so in 
 the great society of nations it becomes necessary to establish 
 a law of positive institution more or less varying from the 
 natural law of nations. As the common welfare of nations 
 requires this mutation, they are not less bound to submit to 
 the law which flows from it than they are bound to submit to 
 the natural law itself, and the new law thus introduced, so far 
 as it does not conflict with the natural law, ought to be con- 
 sidered as the common law of all nations. This law we have 
 deemed proper to term, with Grotius, though in a somewhat 
 stricter sense, the voluntary Law of Nations " (q). 
 
 Wolf afterwards says, that "the voluntary law of nations 
 derives its force from the presumed consent of nations, the 
 conventional from their express consent ; and the consue- 
 tudinary from their tacit consent " (r). 
 
 This presumed consent of nations (consentium gentium prce- 
 sumptum} to the voluntary law of nations he derives from the 
 fiction of a great commonwealth of nations (civitate gentium 
 maxima} instituted by nature herself, and of which all the 
 nations of the world are members. As each separate society 
 of men is governed by its peculiar laws freely adopted by 
 itself, so is the general society of nations governed by its 
 appropriate laws freely adopted by the several members, on 
 their entering the same. These laws he deduces from a 
 modification of the natural law, so as to adapt it to the pecu- 
 liar nature of that social union, which, according to him, 
 makes it the duty of all nations to submit to the rules by 
 which that union is governed, in the same manner as indivi- 
 duals are bound to submit to the laws of the particular 
 community of which they are members. But he takes no 
 pains to prove the existence of any such social union or 
 universal republic of nations, or to show when and how all 
 the human race became members of this union or citizens of 
 this republic. 
 
 Differences Wolf differs from Grotius, as to the origin of the voluntary 
 
 of opinion law of nations in two particulars : 
 
 (q) Wolfius, Jus Gentium, Pref. 3. 
 (r) Wolfius, Proleg. 25.
 
 OF INTERNATIONAL LAW. 11 
 
 1. Grotius considers it as a law of positive institution, between 
 and rests its obligation upon the general consent of na- ^mfwolf 
 tions, as evidenced in their practice. Wolf, on the other on the 
 hand, considers it as a law which nature has imposed upon thlfvohm- 
 all mankind as a necessary consequence of their social tary Law 
 union ; and to which no one nation is at liberty to refuse its 
 assent. 
 
 2. Grotius confounds the voluntary law of nations with the 
 customary law of nations. Wolf maintains that it differs in 
 this respect, that the voluntary law of nations is of universal 
 obligation, whilst the customary law of nations merely pre- 
 vails between particular nations, among whom it has been 
 established from long usage and tacit consent. 
 
 It is from the work of Wolf that Vattel has drawn the 9 - 
 materials of his treatise on the law of nations. He, however, Vattel. 
 differs from that publicist in the manner of establishing the 
 foundations of the voluntary law of nations. W^olf deduces 
 the obligations of this law, as we have already seen, from the 
 fiction of a great republic instituted by nature herself, and of 
 which all the nations of the world are members. According 
 to him the voluntary law of nations is, as it were, the civil 
 law of that great republic. This idea does not satisfy 
 Vattel. "I do not find," says he, "the fiction of such 
 a republic either very just or sufficiently solid to deduce 
 from it the rules of a universal law of nations, necessarily 
 admitted among sovereign States. I do not recognise any 
 other natural society between nations than that which nature 
 has established between all men. It is the essence of all 
 civil society, (civitatis,) that each member thereof should 
 have given up a part of his rights to the body of the society, 
 and that there should exist a supreme authority capable of 
 commanding all the members, of giving to them laws, and 
 of punishing those who refuse to obey. Nothing like this 
 can be conceived or supposed to exist between nations. Each 
 sovereign State pretends to be, and in fact is, independent of 
 all others. Even according to Mr. Wolf, they must all be 
 considered as so many free individuals, who live together in a 
 state of nature and acknowledge no other law than that of 
 nature itself, and its Divine Author " (s). 
 
 (s) Vattel, Droit des Geiis, Preface.
 
 12 DEFINITION AND SOURCES 
 
 According to Vattel, the Law of Nations, in its origin, is 
 nothing but the law of nature applied to nations. 
 
 Having laid down this axiom, he qualifies it in the same 
 manner, and almost in the identical terms of Wolf, by stating 
 that the nature of the subject to which it is applied, being 
 different, the law which regulates the conduct of individuals 
 must necessarily be modified in its application to the collec- 
 tive societies of men called nations or States. A State is a 
 very different subject from a human individual, from whence 
 it results that the obligations and rights, in the two cases, 
 are very different. The same general rule, applied to two 
 subjects, cannot produce the same decisions when the sub- 
 jects themselves differ. There are, consequently, many cases 
 in which the natural law does not furnish the same rule of 
 decision between State and State as would be applicable 
 between individual and individual. It is the art of accommo- 
 dating this application to the different nature of the subjects 
 in a just manner, according to right reason, which constitutes 
 the law of nations a particular science. 
 
 This application of the natural law, to regulate the conduct 
 of nations in their intercourse with each other, constitutes 
 what both Wolf and Vattel term the necessary law of nations. 
 It is necessary, because nations are absolutely bound to 
 observe it. The precepts of the natural law are equally 
 binding upon States as upon individuals, since States are 
 composed of men, and since the natural law binds all men, 
 in whatever relation they may stand to each other. This is 
 the law which Grotius and his .followers* call the!] internal 
 law of nations, as it is obligatory upon nations in point of con- 
 science. Others term it the natural law of nations. This 
 law is immutable, as it consists in the application to 
 States of the natural law, which is itself immutable, because 
 founded on the nature of things, and especially on the nature 
 of man. 
 
 This law being immutable, and the law which it imposes 
 necessary and indispensable, nations can neither make any 
 changes in it by their conventions, dispense with it in their 
 own conduct, nor reciprocally release each other from the 
 observance of it (t). 
 
 (t) Droit des Gens, Preliminaries, vi. vii. viii. ix.
 
 OF INTERNATIONAL LAW. 13 
 
 Vattel has himself anticipated one objection to his doctrine 
 that States cannot change the necessary law of nations by 
 their conventions with each other. This objection is, that it 
 would be inconsistent with the liberty and independence of a 
 nation to allow to others the right of determining whether its 
 conduct was or was not conformable to the necessary law of 
 nations. He obviates the objection by a distinction which 
 pronounces treaties made in contravention of the necessary 
 law of nations, to be invalid, according to the internal 
 law, or that of conscience, at the same time that they may 
 be valid by the external law; States being often obliged to 
 acquiesce in such deviations from the former law in cases 
 where they do not affect their perfect rights (u). 
 
 From this distinction of Vattel, flows what Wolf had de- 
 nominated the voluntary law of nations, (jus gentium volun- 
 tarium,} to which term his disciple assents, although he 
 differs from Wolf as to the manner of establishing its obliga- 
 tion. He, however, agrees with Wolf in considering the 
 voluntary law of nations as a positive law, derived from the 
 presumed or tacit consent of nations to consider each other as 
 perfectly free, independent, and equal, each being the judge 
 of its own actions, and responsible to no superior but the 
 Supreme Ruler of the universe. 
 
 Besides this voluntary law of nations, these writers 
 enumerate two other species of international law. These 
 are: 
 
 1. The conventional law of nations, resulting from com- 
 pacts between particular States. As a treaty binds only the 
 contracting parties, it is evident that the conventional law of 
 nations is not a universal, but a particular law. 
 
 2. The customary law of nations, resulting from usage 
 between particular nations. This law is not universal, but 
 binding upon those States only which have given their tacit 
 consent to it. 
 
 Vattel concludes that these three species of international 
 law, the voluntary, the conventional, and the customary, com- 
 pose together the positive law of nations. They proceed 
 from the will of nations ; or (in the words of Wolf) " the 
 
 (M) Droit des Gens, PnSlimiimires, ix.
 
 14- DEFINITION AND SOURCES 
 
 voluntary, from their presumed consent; the conventional, 
 from their express consent ; and the customary, from their 
 tacit consent" (x). 
 
 It is almost superfluous to point out the confusion in this 
 enumeration of the different species of international law, 
 which might easily have been avoided by reserving the 
 expression, " voluntary law of nations," to designate the 
 genus, including all the rules introduced by positive consent, 
 for the regulation of international conduct, and divided into 
 the two species of conventional law and customary law, the 
 former being introduced by treaty, and the latter by usage ; 
 the former by express consent, and the latter by tacit consent 
 between nations (y}. 
 
 10. According to Heffter, one of the most recent and dis- 
 
 Heffter. tinguished public jurists of Germany, "the law of nations, 
 jus gentium, in its most ancient and most extensive accepta- 
 tion, as established by the Roman jurisprudence, is a law 
 (liecht) founded upon the general usage and tacit consent of 
 nations. This law is applied, not merely to regulate the 
 mutual relations of States, but also of individuals, so far as 
 concerns their respective rights and duties, having everywhere 
 the same character and the same effect, and the origin and 
 peculiar form of which are not derived from the positive in- 
 stitutions of any particular State." According to this writer, 
 the jus gentium consists of two distinct branches : 
 
 1. Human rights in general, and those private relations 
 which Sovereign States recognise in respect to individuals not 
 subject to their authority. 
 
 2. The direct relations existing between those States 
 themselves. 
 
 In the modern world, this latter branch has exclusively 
 received the denomination of law of nations, Volkerrecht, 
 Droit des Gens, Jus Gentium. It may more properly be 
 called external public law, to distinguish it from the internal 
 public law of a particular State. The first part of the ancient 
 jus gentium has become confounded with the municipal law of 
 each particular nation, without at the same time losing its 
 original and essential character. This part of the science 
 
 (a;) Droit des Gens, Preliminaires, xxvii. ; Wolf, Proleg. xxv. 
 (y) Vattel, Droit des Gens, edit, de Piiiheiro Ferreira, torn. iii. p. 22.
 
 OF INTERNATIONAL LAW. 15 
 
 concerns, exclusively, certain rights of men in general, and 
 those private relations which are considered as being under 
 the protection of nations. It has been usually treated of 
 under the denomination of private international law." 
 
 This division of the subject into public and private international law 10 a. 
 is now very generally accepted. According to Sir Robert Phillimore, Distinction 
 rights arising under the former class are called absolute, or rights stricti ^^^ a]1 ,i 
 juris, " and their breach constitutes a casus belli, and justifies in the last private in- 
 resort a recourse to war," whereas private international law, or inter- temational 
 national comity, as it is sometimes called, confers no absolute rights. Its ^ aw ' 
 rules are founded upon convenience, and intended to facilitate the inter- 
 course between the subjects of different States. " For a want of comity 
 towards the individual subjects of a foreign State, reciprocity of treat- 
 ment by the State whose subject has been injured, is, after remonstrance 
 has been exhausted, the only legitimate remedy " (2). 
 
 Heffter does not admit the term international law (d-roit in- 
 ternational) lately introduced and generally adopted by the 
 most recent writers.' According to him this term does not 
 sufficiently express the idea of the jus gentium of the Roman 
 jurisconsults. He considers the law of nations as a law 
 common to all mankind, and which no people can refuse to 
 acknowledge, and the protection of which may be claimed by 
 all meji and by all States. He places the foundation of this 
 law on the incontestable principle that wherever there is 
 a society, there must be a law obligatory on all its members ; 
 and he thence deduces the consequence that there must 
 likewise be for the great society of nations an analogous law. 
 
 " Law in general (Reckt im Allegemeinen) is the external 
 freedom of the moral person. This law may be sanctioned and 
 guaranteed by a superior authority, or it may derive its force 
 from self-protection. The jus gentium is of the latter descrip- 
 tion. A nation associating itself with the general society of 
 nations, thereby recognizes a law common to all nations by 
 which its international realtions are to be regulated. It can- 
 not violate this law, without exposing itself to the danger of 
 incurring the enmity of other nations, and without exposing 
 to hazard its own existence. The motive which induces each 
 particular nation to observe this law depends upon its persua- 
 sion that other nations will observe towards it the same law. 
 
 (z) [Phillimore, vol. i. xvi.]
 
 16 DEFINITION AND SOURCES 
 
 The jus gentium is founded upon reciprocity of will. It has 
 neither lawgiver nor supreme judge, since independent States 
 acknowledge no superior human authority. Its organ and 
 regulator is public opinion : its supreme tribunal is history, 
 which forms at once the rampart of justice and the Nemesis 
 by whom injustice is avenged. Its sanction, or the obligation 
 of all men to respect it, results from the moral order of the 
 universe, which will not suffer nations and individuals to be 
 isolated from each other, but constantly tends to unite the 
 whole family of mankind in one great harmonious society ()." 
 11. Is there a uniform law of nations ? There certainly is not 
 
 ^?ver!ii n0 the same one for all the nations and States of the world. The 
 law of public law, with slight exceptions, has always been, and still 
 is, limited to the civilized and Christian people of Europe or 
 to those of European origin. This distinction between the 
 European law of nations and that of the other races of man- 
 kind has long been remarked by the publicists. Grotius states 
 that the jus gentium acquires its obligatory force from the 
 positive consent of all nations, or at least of several. "I say 
 of several, for except the natural law, which is also called the 
 jus gentium, there is no other law which is common to all 
 nations. It often happens, too, that what is the law of nations 
 in one part of the world is not so in another, as we shall show 
 in the proper place (b)." So also Bynkershoek, in the passage 
 before cited, says that " the law of nations is that which is 
 observed, in accordance with the light of reason, between 
 nations, if not among all, at least certainly among the greater 
 
 (a) Heffter, Das Europaische Volkerrecht, 2. 
 
 The learned Jesuit Saurez has anticipated this view of the moral obligation 
 of the jus gentium. "Ratio hujus juris est, quia humanum genus, quamvis 
 in varies populos et regna divisum, semper habeat aliquam unitatem, non so- 
 lum npecificam, sed etiam quasi politicam et moralem, quam indicat naturale 
 pneceptum mutui amoris et misericordiae, quod ad omnes extenditur, etiam 
 extraneos et cujuscunque nationis. Quapropter, licet unaquaque civitas per- 
 fecta, res-publica, aut regnum. sit in se communitas perfecta et suis membris 
 constans, nihilominus quselibet illarum etiam membrum aliquo modo hujus 
 universi prout genus humanum spectat. Nunquam enim illse communitates 
 adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine, 
 et societate, ac communicatioiie, interdum ad melius esse majoremque utilita- 
 tem, interdum vero et ob moralem necessitatem. Hac ergo ratioue indigent 
 aliquo jure, quo dirigantur et recte ordiuentur in hoc geuere communicationis 
 et societatis. Et quamvis magna ex parte hoc fiat per rationem naturalem, 
 non tamen sufficienter et immediate quoad omnia : ideoque potuerunt usu 
 earundem gentium introduci. " Saurez, de Legibus et Deo Legislatore, lib. ii. 
 cap. xix. n. g. 
 
 (b) De Jur. Bel. ac Pac. lib. i. cap. 1, xiv. 4.
 
 OF INTERNATIONAL LAW. 17 
 
 part, and those the most civilized (c)." Leibnitz speaks of the 
 voluntary law as established by the tacit consent of nations. 
 "Not," says he, "that it is necessarily the law of all nations 
 and of all times, since the Europeans and the Indians fre- 
 quently differ from each other concerning the ideas which they 
 have formed of international law, and even among us it may 
 be changed by the lapse of time, of which there are numerous 
 examples. The basis of international law is natural law, 
 which has been modified according to times and local circum- 
 stances (d)." Montesquieu, in his Esprit des Lois, says, that 
 "every nation has a law of nations even the Iroquois, who 
 eat their prisoners, have one. They send and receive ambas- 
 sadors ; they know the laws of war and peace ; the evil is, that 
 their law of nations is not founded upon true principles " (e). 
 
 There is then, according to these writers, no universal law 
 of nations, such as Cicero describes in his treatise De Repub- 
 lica, binding upon ,the whole human race which all man- 
 kind in all ages and countries, ancient and modern, savage 
 and civilized, Christian and Pagan, have recognized in theory 
 or in practice, have professed to obey, or have in fact 
 obeyed (/). 
 
 An eminent French writer on the science of which we pro- 12, 
 pose to treat, has questioned the propriety of using the term ^ an 
 droit des gens (law of nations) as applicable to those rules of 
 conduct which obtain between independent societies of men. 
 He asserts " that there can be no droit (right) where there is 
 no loi (law) ; and there is no law where there is no superior : 
 without law, obligations, properly so called, cannot exist ; 
 there is only a moral obligation resulting from natural reason ; 
 such is the case between nation and nation. The word gens, 
 imitated from the Latin, does not signify in the French lan- 
 guage either people or nations " (</). 
 
 The same writer has made it the subject of serious reproach 
 to the English language that it applies the term law to that 
 
 (c) Bynkershoek, De Foro Legatorum, Vid. supra. 
 
 (d) Leibnitz, Cod. Jur. Gent, diplom. Pref. 
 
 (e) Esprit des Lois, liv. i. ch. 3. 
 
 F (f) [T/w Madonna del Bur so, 4 C. Rob. 172 ; The Hurtige Hane,S C Rob 
 326]. 
 
 (gr) Rayneval, Institutions du droit de la nature et des gens, liv. I. note 10 
 p. viii.
 
 18 DEFINITION AND SOURCES 
 
 system of rules which governs, or ought to govern, the con- 
 duct of nations in their mutual intercourse. His argument 
 is, that law is a rule of conduct, deriving its obligation from 
 sovereign authority, and binding only on those persons who" 
 are subject to that authority; that nations, being inde- 
 pendent of each other, acknowledge no common sovereign 
 from whom they can receive the law ; that all the relative 
 duties between nations result from right and wrong, from con- 
 vention and usage, to neither of which can the term law be 
 properly applied ; that this system of rules had been called 
 by the Roman lawyers the jus gentium, and in all the lan- 
 guages of modern Europe, except the English language, the 
 right of nations, or the laws of war and peace (h). 
 
 That very distinguished legal reformer, Jeremy Bentham, 
 had previously expressed the same doubt how far the rules of 
 conduct which obtain between nations can with strict pro- 
 priety be called laws (i). And one of his disciples has justly 
 observed, that " laws, properly so called, are commands pro- 
 ceeding from a determinate rational being, or a determinate 
 body of rational beings, to which is annexed an eventual evil 
 as the sanction. Such is the law of nature, more properly 
 called the law of God, or the divine law ; and such are poli- 
 tical human laws, prescribed by political superiors to persons 
 in a state of subjection to their authority. But laws imposed 
 by general opinion are styled laivs by an analogical extension 
 of the term. Such are the laws of honour imposed by 
 opinions current in the fashionable world, and enforced by 
 appropriate sanction. Such, also, are the laws which regulate 
 the conduct of independent political societies in their mutual 
 relations, and which are called the law of nations, or inter- 
 national law. This law obtaining between nations is not 
 positive law ; for every positive law is prescribed by a given 
 superior or sovereign to a person or persons in a state of sub- 
 jection to its author. The rule concerning the conduct of 
 sovereign States, considered as related to each other, is termed 
 law by its analogy to positive law, being imposed upon nations or 
 
 (h) Droit des gens, Fr. Diritto delle genti, Ital. Direito das Gentes, 
 fortug. Vblkerrecht, Germ. Volkenregt, Dutch. Folkeret, Dan. Folkratt^ 
 Swed. Derecho des gentes, Span. 
 
 (i) Bentham, Morals and Legislation, vol. ii. p. 256. Ed. 1823.
 
 OF INTERNATIONAL LAW. 19 
 
 sovereigns, not by the positive command of a superior authority, 
 but by opinions generally current among nations. The duties 
 which it imposes are enforced by moral sanctions : by fear on 
 the part of nations, or by fear on the part of sovereigns, of 
 provoking general hostility, and incurring its probable evils, 
 in case they should violate maxims generally received and 
 respected (k). 
 
 This law has commonly been called the jus gentium in the 
 Latin, droit des gens in the French, and law of nations in the 
 English language. It was more accurately termed the jus 
 inter gentes, the law between or among nations, for the first 
 time, by Dr. Zouch, an English civilian and writer on the 
 science, distinguished in the celebrated controversy between 
 the civil and common lawyers during the reign of Charles II., 
 as to the extent of the Admiralty jurisdiction. He introduced 
 this term as more appropriate to express the real scope and 
 object of this law (I).- An equivalent term in the French lan- 
 guage was subsequently proposed by Chancellor D'Aguessean, 
 as better adapted to express the idea properly annexed to that 
 system of jurisprudence commonly called le droit des gens, but 
 which, according to him, ought properly to be termed le droit 
 entre les gens (m). The term international law has been since 
 proposed by Mr. Bentham as well adapted to express in our 
 language, "in a more significant manner that branch of 
 jurisprudence, which commonly goes under the name of law 
 of nations, a denomination so uncharacteristic, that were it 
 not for the force of custom, it would rather seem to refer to 
 internal or municipal jurisprudence " (ri). The terms inter- 
 national law and droit international have now taken root in 
 the English and French languages, and are constantly used 
 in all discussions connected with the science, and we cannot 
 agree with Heffter in proscribing them. 
 
 According to Savigny, " there may exist between different . 13 - 
 nations the same community of ideas which contributes to form Sav!gny. 
 the positive unwritten law (das positive Recht) of a particular 
 nation. This community of ideas, founded upon a common 
 
 (k) Austin, Province of Jurisprudence determined, pp. 147, 207. 
 (I) Zoucli, Juris et judicii t'ecialis, sive Juris inter gentes. Lond. 1650. 
 (m) (Euvres de D'Aguesseau, tome ii. p. 337. Ed. 1773. 
 (n) Beutham, Morals and Legislation, vol. ii. p. 256. 
 
 c 2
 
 20 DEFINITION AND SOURCES 
 
 origin and religious faith, constitutes international law as we 
 see it existing among the Christian States of Europe, a law 
 which was not unknown to the people of antiquity, and which 
 we find among the Romans under the name of jus feciale. 
 International law may therefore be considered as a positive 
 law, but as an imperfect positive law, (eine unvollendete 
 Reclitslildung,} both on account of the indeterminateness of 
 its precepts, and because it lacks that solid basis on which 
 rests the positive law of every particular nation, the political 
 power of the State and a judicial authority competent to 
 enforce the law. The progress of civilization, founded on 
 Christianity, has gradually conducted us to observe a law 
 analogous to this in our intercourse with all the nations of the 
 globe, whatever may be their religious faith, and without 
 reciprocity on their part " (o). 
 
 It may be remarked, in confirmation of this view, that the 
 more recent intercourse between the Christian nations of 
 Europe and America and the Mohammedan and Pagan nations 
 of Asia and Africa indicates a disposition, on the part of the 
 latter, to renounce their peculiar international usages and 
 adopt those of Christendom. The rights of legation have 
 been recognized by, and reciprocally extended to, Turkey, 
 Persia, Egypt, and the States of Barbary. The independ- 
 ence and integrity of the Ottoman Empire have been long 
 regarded as forming essential elements in the European 
 balance of power, and, as such, have recently become the 
 objects of conventional stipulations between the Christian 
 States of Europe and that Empire, which may be con- 
 sidered as bringing it within the pale of the public law of 
 the former (p). 
 
 The same remark may be applied to the recent diplomatic 
 transactions between the Chinese Empire and the Christian 
 nations of Europe and America, in which the former has been 
 compelled to abandon its inveterate anti-commercial and anti- 
 social principles, and to acknowledge the independence and 
 equality of other nations in the mutual intercourse of war and 
 peace. 
 
 (o) Savieny. System des heutigen Rb'mischen Rechts, 1 B'd, 1 Bucli. 
 Kap. ii. 11. 
 
 (p) Wheaton's Hist. Law of Nations, p. 583.
 
 OF INTERNATIONAL LAW. 21 
 
 International law, as understood among civilized nations, 14. 
 may be denned as consisting of those rules of conduct which of^^terna- 
 reason deduces, as consonant to justice, from the nature of tioual law - 
 the society existing among independent nations ; with such 
 definitions and modifications as may be established by general 
 consent (q). 
 
 The various sources of international law in these different 15 - 
 
 , , ,, ,, Sources of 
 
 branches are the following : intema- 
 
 1. Text writers of authority, showing what is the approved tlonal law - 
 usage of nations, or the general opinion respecting their 
 mutual conduct, with the definitions and modifications intro- 
 duced by general consent. 
 
 Without wishing to exaggerate the importance of these 
 writers, or to substitute, in any case, their authority for the 
 principles of reason, it may be affirmed that they are generally 
 impartial in their judgment. They are witnesses of the sen- 
 timents and usageS'Of civilized nations, and the weight of 
 their testimony increases every time that their authority is 
 invoked by statesmen, and every year that passes without the 
 rules laid down in their works being impugned by the avowal 
 of contrary principles. 
 
 2. Treaties of peace, alliance, and commerce declaring, 
 modifying, or defining the pre-existing international law. 
 
 What has been called the positive or practical law of na- 
 tions may also be inferred from treaties ; for though one or 
 two treaties, varying from the general usage and custom of 
 nations, cannot alter the international law, yet an almost per- 
 petual succession of treaties, establishing a particular rule, 
 will go very far towards proving what that law is on a disputed 
 point. Some of the most important modifications and im- 
 provements in the modern law of nations have thus originated 
 in treaties (?) . 
 
 " Treaties," says Mr. Madison, " may be considered under 
 several relations to the law of nations, according to the several 
 questions to be decided by them. 
 
 " They may be considered as simply repeating or affirming 
 the general law ; they may be considered as making exccp- 
 
 (q) Madison, Examination of the British Doctrine which subjects to Capture 
 a Neutral Trade not open in Time of Peace, p. 41. London Ed. 1806. 
 (r) Bynkershoek, Quest. Jur. Tub. lib. i. cap. 10.
 
 22 DEFINITION AND SOURCES 
 
 tions to the general law, which are to be a particular law 
 between the parties themselves ; they may be considered ex- 
 planatory of the law of nations on points where its meaning is 
 otherwise obscure or unsettled, in which they are, first, a law 
 between the parties themselves, and next, a sanction to the 
 general law, according to the reasonableness of the explana- 
 tion, and the number and character of the parties to it ; 
 lastly, treaties may be considered a voluntary or positive law 
 of nations " (s). 
 
 3. Ordinances of particular States prescribing rules for the 
 conduct of their commissioned cruisers and prize tribunals. 
 
 The marine ordinances of a State may be regarded, not only 
 as historical evidences of its practice with regard to the rights 
 of maritime war, but also as showing the views of its jurists 
 with respect to the rules generally recognized as conformable 
 to the universal law of nations. The usage of nations, which 
 constitutes the law of nations, has not yet established an im- 
 partial tribunal for determining the validity of maritime 
 captures. Each belligerent State refers the jurisdiction over 
 such cases to the courts of admiralty established under its own 
 authority within its own territory, with a final resort to a 
 supreme appellate tribunal, under the direct control of the 
 executive government. The rule by which the prize courts 
 thus constituted are bound to proceed in adjudicating such 
 cases, is not the municipal law of their own country, but the 
 general law of nations, and the particular treaties by which 
 their own country is bound to other States. They may be 
 left to gather the general law of nations from its ordinary 
 sources in the authority of institutional writers ; or they may 
 be furnished with a positive rule by their own sovereign, 
 in the form of ordinances, framed according to what their 
 compilers understood to be the just principles of interna- 
 tional law. 
 
 The theory of these ordinances is well explained by an emi- 
 nent English civilian of our own times. " When," says Sir 
 William Grant, " Louis XIV. published his famous ordinance 
 of 1681, nobody thought that he was undertaking to legislate 
 for Europe, merely because he collected together and reduced 
 
 (s) Madison, Examination of the British Doctrine, &c. p. 39.
 
 OF INTERNATIONAL LAW. 23 
 
 into the shape of an ordinance the principles of marine law as 
 then understood and received in France. I say as understood 
 in France, for although the law of nations ought to be the same 
 in every country, yet as the tribunals which administer the law 
 are wholly independent of each other, it is impossible that 
 some differences shall not take place in the manner of inter- 
 preting and administering it in the different countries which 
 acknowledge its authority. Whatever may have been since 
 attempted, it was not, at the period now referred to, supposed 
 that one State could make or alter the law of nations, but it 
 was judged convenient to establish certain principles of de- 
 cision, partly for the purpose of giving a uniform rule to their 
 own courts, and partly for the purpose of apprising neutrals 
 what that rule was. The French courts have well and pro- 
 perly understood the effect of the ordinances of Louis XIV. 
 They have not taken them as positive rules binding upon 
 neutrals ; but they refer to them as establishing legitimate 
 presumptions, from which they are warranted to draw the 
 conclusion, which it is necessary for them to arrive at, 
 before they are entitled to pronounce a sentence of condem- 
 nation " (t). 
 
 4. The adjudications of international tribunals, such as 
 boards of arbitration and courts of prize. 
 
 As between these two sources of international law, greater 
 weight is justly attributable to the judgments of mixed tri- 
 bunals, appointed by the joint consent of the two nations 
 between whom they are to decide, than to those of admiralty 
 courts established by and dependent on the instructions of 
 one nation only. 
 
 5. Another depository of international law is to be found in 
 the written opinions of official jurists, given confidentially to 
 their own governments. Only a small portion of the contro- 
 versies which arise between States become public. Before 
 one State requires redress from another, for injuries sustained 
 
 (t'} Marshall on Insurance, vol. i. 425. The commentary of Valin upon the 
 marine ordinance of Louis XIV., published in 1760, contains a most valuable 
 body of maritime law, from which the English writers and judges, especially 
 Li>rd Mansfield, have borrowed very freely, and which is often cited by Sir W. 
 Scott (Lord Stowell) in his judgments in the High Court of Admiralty. Valin 
 also published, in 1763, a separate Traitt des Prises, which contains a com- 
 plete collection of the French prize ordinances down to that period.
 
 24 DEFINITION AND SOURCES 
 
 by itself, or its subjects, it generally acts as an individual 
 would do in a similar situation. It consults its legal ad- 
 visers, and is guided by their opinion as to the law of the 
 case. Where that opinion has been adverse to the sovereign 
 client, and has been acted on, and the State which submitted 
 to be bound by it was more powerful than its opponent in the 
 dispute, we may confidently assume that the law of nations, 
 such as it was then supposed to be, has been correctly laid 
 down. The archives of the department of foreign affairs of 
 every country contain a collection of such documents, the 
 publication of which would form a valuable addition to the 
 existing materials of international law (w). 
 
 6. The history of the wars, negotiations, treaties of peace, 
 and other transactions relating to the public intercourse of 
 nations, may conclude this enumeration of the sources of 
 international law. 
 
 15a. Jurists accustomed to the Common Law of England and America, where 
 
 The judicial decisions form a binding precedent, and are authoritative exposi- 
 
 of tTt y tions of the law, are, as a rule, inclined towards resting international law 
 writers. on practice and precedent, and prefer to rely upon the decision of a court or 
 the act of a government, rather than upon theory or the dicta of text- 
 writers, however unanimous or eminent the writers maybe. On the 
 other hand, in France and other countries where the whole law is con- 
 tained in a code, and where the decisions of the courts only settle the 
 matter in dispute between the parties, and form no binding precedent, 
 jurists place very great reliance on the theoretical speculations of 
 text-writers, and frequently consider the rules they lay down as the 
 highest authority. It is not too much to say that the influence of specu- 
 lative writers in England is comparatively small. In the days of Grotius, 
 
 (u) Senior, Edinburgh Kev. No. 156, art. 1, p. 311. 
 
 The written opinions delivered bv Sir Leoline Jenkins, Judge of the High 
 Court of Admiralty in the reign of Charles 11., in answer to questions sub- 
 mitted to him by the King or by the Privy Council, relating to prize causes, 
 were published as an Appendix to Wynne's Life of that eminent civilian. 
 (2 vols. fol. London, 1724.) They form a rich collection of precedents in 
 the maritime law of nations, the value of which is enhanced by the circum- 
 stance that the greater part of these opinions were given when England was 
 neutral, and was consequently interested in maintaining the right of neutral 
 commerce and navigation. The decisions they contain are dictated by a spirit 
 of impartiality and equity, which does the more honour to their author as 
 they were addressed to a monarch who gave but little encouragement to those 
 virtues, and as Jenkins himself was too much of a courtier to practise them, 
 except in his judicial capacity. Madison, Examination of the British Doctrine, 
 &c., p. 113. Lond. edit. 1806. [The opinions of American Attorneys- 
 General are published. Mr. Forsyth has also published a collection of some 
 of, the opinions of English law officers given at various times, under the title 
 of Cases and Opinions on Constitutional Law. Some of these relate to 
 international law.]
 
 OF INTERNATIONAL LAW. 25 
 
 when his own works, and a few other treatises, were almost the only 
 source from which anything on the subject could be derived, text-writers 
 had the greatest reverence paid to their opinions. But now that pre- 
 cedents are to be found upon so many points, a text- writer who ignores 
 them, and appeals to theory or to other text-writers instead of to facts, 
 must not expect to receive any great attention in this country. " Writers 
 on international law," says Lord Chief-Justice Cockburn, " however 
 valuable their labours may be in elucidating and ascertaining the prin- 
 ciples and rules of law, cannot make the law. To be binding, the law 
 must have received the assent of the nations who are to be bound by it. 
 This assent may be express, as by treaty or the acknowledged con- 
 currence of governments, or maybe implied from established usage" (x). 
 
 Several treaties have been entered into of late years for the sole 15b. 
 purpose of laying down rules of international law which shall bind the ^ iues f 
 contracting parties. Such, for instance, are the Declarations of Paris, ^^g 
 1856, and of St. Petersburg, 1868, and the Geneva Convention, 1864. 
 In others, as in the Treaty of Washington, 1871, rules of law have been 
 inserted among the other provisions. 
 
 The principles laid down in marine ordinances must not always be I5c. 
 assumed to have an universal application. " They furnish, however," Marine 
 says Sir E. Phillimore', " decisive evidence against any State which ordmances 
 afterwards departs from the principles which it has thus deliberately sar jiy U m- 
 iiivoked ; and in every case thus clearly recognize the fact that a system versal. 
 of law exists, which ought to regulate and control the international re- 
 lations of every State " (y). 
 
 These ordinances are, however, ex parte instruments, and ought not 
 to be enforced if at variance with the established usage of nations, for no 
 State has the right of laying down rules which shall bind other States 
 that have not consented to them (2). 
 
 Courts of Admiralty are courts of the law of nations (a). It is the I5d. 
 duty of the judge presiding in such courts " not to deliver occasional Courts of 
 and shifting opinions to serve present purposes of particular national in- Admiralty, 
 tere.st, 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 belligerent" (It). The records of 
 the English and American Courts of Admiralty are peculiarly valuable, 
 from their containing the judgments of such eminent men as Lord 
 Stowell and Dr. Lifshington, Kent and Story. 
 
 (x) [R. v. Keyn ( The Franconia), 2 Ex. D. 202]. 
 (y) [Phillimore, vol. i. 57]. 
 
 (z) \_Wo\ff v. Oxholm, 6 M. & S. 92 ; The Nereide, 9 Cranch, 388 ; The 
 Zvllverein, 2 Jur. N. S. 429 ; S. C. Swa. 96 ; Cope v. Dohcrty, 4 K. &J. 390]. 
 
 (a) [Reply to Prussian Memorial, 1753. Harg. Coll. Jur. vol. ii. p. 130 ; 
 The Recovery, 6 C. Rob. 348]. 
 
 (b) [Per Lord Stowell, in The Maria, 1 C. Rob. 350 ; Calvo. Droit Int. 
 vol. i. p. Ill; Halleck, p. 58].
 
 CHAPTER II. 
 
 NATIONS AND SOVEREIGN STATES. 
 
 Subjects' of ^ HE P ecu li ar subjects of international law are Nations, and 
 intema- those political societies of men called States. 
 
 Cicero, and, after him, the modern public jurists, define a 
 Definition State to be, a body politic, or society of men, united together 
 of a State. or fa Q p ur p 0se O f promoting their mutual safety and advan- 
 tage by their combined strength (a). 
 
 This definition cannot be admitted as entirely accurate 
 and complete, unless it be understood with the following 
 limitations : 
 
 1. It must be considered as excluding corporations, public 
 or private, created by the State itself, under whose authority 
 they exist, whatever may be the purposes for which the indi- 
 viduals composing such bodies politic, may be associated. 
 
 Thus the great association of British merchants incor- 
 porated, first, by the crown, and afterwards by Parliament, 
 for the purpose of carrying on trade to the East Indies, could 
 not be considered as a State, even whilst it exercised the 
 sovereign powers of war and peace in that quarter of the globe 
 without the direct control of the crown, and still less can it 
 be so considered since it has been subjected to that control. 
 Those powers are exercised by the East India Company in 
 subordination to the supreme power of the British empire, the 
 external sovereignty of which is represented by the company 
 towards the native princes and people, whilst the British 
 
 (cti " Respublica est ccetus raultitudinis, juris consensu et utilitatis com- 
 munione societas." Cic. de Rep. 1. i. 25. 
 
 " Potestas civilis est, qui civitati prseest. Est autem civitas coetus perfectus 
 liberorum hominum, juris fruendi et communis utilitatis causa sociatus." 
 Grotius, de Jur. Bel. ac. Pac. lib. i. cap i. xiv. No. 2. Vattel, Prelim. 1, 
 et liv. 1, ch. 1, 1. Burlamaqui, Droit naturel, torn ii. part 1, ch. 4. 
 [Hetfter, liv. 1, 16, p. 35. Texas v. W kite, 7 Wallace, 720.)
 
 NATIONS AND SOVEREIGN STATES. 27 
 
 government itself represents the company towards other foreign 
 sovereigns and States (b). 
 
 2. Nor can the denomination of a State be properly applied 
 to voluntary associations of robbers or pirates, the outlaws 
 of other societies, although they may be united together for 
 the purpose of promoting their own mutual safety and advan- 
 tage (c). 
 
 3. A State is also distinguishable from an unsettled horde 
 of wandering savages not yet formed into a civil society. 
 The legal idea of a State necessarily implies that of the habi- 
 tual obedience of its members to those persons in whom the 
 superiority is vested, and of a fixed abode, and definite terri- 
 tory belonging to the people by whom it is occupied. 
 
 4. A State is also distinguishable from a Nation, since the 
 former may be composed of different races of men, all subject 
 to the same supreme authority. Thus the Austrian, Prus- 
 sian, and Ottoman empires, are each composed of a variety of 
 nations and people. So, also, the same nation or people may 
 be subject to several States, as is the case with the Poles, 
 subject to the dominion of Austria, Prussia, and Kussia, 
 respectively. 
 
 The Jews and the Gipsies are undoubtedly nations, but they cannot I7a. 
 be said to form States. The idea of a nation implies community of race, Nations 
 which is generally shown by community of language, manners, and an( * ^ tates> 
 customs (d). A State, on the other hand, implies the union of a number 
 of individuals in a fixed territory, and under one central authority. 
 Austria is a State, but as Prince Gortchakoff sarcastically remarked 
 about it, " it is a government, and not a nation." There is now pre- 
 valent in Europe a desire that States should be established on the basis 
 of nationality, so that all members of the same race may be united under 
 the same government. The existence in their present form, of the Em- 
 pire of Germany, and the Kingdom of Italy, is due in some measure to 
 this sentiment (e). 
 
 In the constitution of the United States, the term State most fre- 17b. 
 
 Meaning oi 
 
 (6) [See The Secretary of State for India v. Sahaba, 13 Moo. P. C. 22]. 
 
 (c) [ * * * " nee ccetus piratarum aut latronum civitas est, etiam si forte 
 aequaiitatem quandam inter se servent, sine qua nullus ccetus posset con- 
 sistere." Grotius, de Jur. Bel. ac. Pac. lib. iii. cap. iii ii. No. 1. [Thus 
 the Malay and Sooloo pirates of Borneo and the Eastern Archipelago are no 
 doubt united for their own mutual safety and advantage, but they do not form 
 States. The ticrhassan Pirates, 2 W. Rob. 354 ; The Illcanon Pirates, 6 Moo. 
 P. C. 471. Nor did the Buccaneers of the 17th century]. 
 
 (d) [Calvo, Droit Int. vol. i. 29]. 
 
 (e) [M. de Schleinitz to Comte de St. Simon ; Annuaire des Deux Moudes, 
 18oO, p. 786].
 
 28 NATIONS AND SOVEREIGN STATES. 
 
 State in the quently expresses the combined idea of people, territory, and government. 
 American A State, in the ordinary sense of the constitution, is a political commu- 
 tion StltU " n ^ ^ ^ ree citizens > occupying a territory of denned boundaries, and 
 organized under a government sanctioned and limited by a written con- 
 stitution, and established by the consent of the governed. It is the 
 union of such States, under a common constitution, which forms the 
 distinct and greater political unit, which that constitution designates as 
 the United States, and makes of the people and States which compose it 
 one people and one country (/). 
 
 18. Sovereign princes may become the subjects of international 
 
 priaSrtL l aw > in respect to their personal rights, or rights of property, 
 
 subjects of growing out of their personal relations with States foreign to 
 
 interaation- 
 
 aJ law. those over whom they rule, or with the sovereigns or citizens 
 
 of those foreign States. These relations give rise to that 
 branch of the science which treats of the rights of sovereigns 
 in this respect (</). 
 
 19. Private individuals, or public and private corporations may 
 
 uaLTor cor- in like manner, incidentally, become the subjects of this law 
 porations, ^ u re g ar( j ^ rights growing out of their international relations 
 of interna- with foreign sovereigns and States, or their subjects and 
 tional law. c ^j zens> These relations give rise to that branch of the 
 science which treats of what has been termed private inter- 
 national law, and especially of the conflict between the muni- 
 cipaMaws of different States. 
 
 The terms j3 ut the peculiar objects of international law, are those 
 
 and state direct relations which exist between nations and States. 
 
 nwf Sy Wherever, indeed, the absolute or unlimited monarchical 
 
 ly, or the form of government prevails in any State, the person of the 
 
 metaphor? prince is necessarily identified with the State itself: VEtat 
 
 cailyforthe c'estmoi. Hence the public jurists frequently use the terms 
 
 sovereign and State as synonymous. So also the term sovereign 
 
 is sometimes used in a metaphorical sense merely to denote a 
 
 State, whatever may be the form of its government, whether 
 
 monarchical or republican, or mixed. 
 
 20. Sovereignty is the supreme power by which any State is 
 
 defined Snty governed. This supreme power may be exercised either inter- 
 nally or externally. 
 Internal Internal sovereignty is that which is inherent in the people 
 
 sovereign- 
 ty. 
 
 (/) [Per Chief- Justice Chase, in Texas v. White, 7 Wallace, 721]. 
 (a) [See Duke of Brunswick v. King of Hanover, 2 H. of L. Cas. 1 ; The 
 Charkich, L. R, 4 A. & E. 87].
 
 NATIONS AND SOVEREIGN STATES. 29 
 
 of any State, or vested in its ruler, by its municipal constitu- 
 tion or fundamental laws. This is the ohject of what has 
 been called internal public law, droit public interne, but which 
 may more properly be termed constitutional law. 
 
 External sovereignty consists in the independence of one External 
 political society, in respect to all other political societies. It ^ er 
 is by the exercise of this branch of sovereignty that the inter- 
 national relations of one political society are maintained, in 
 peace and in war, with all other political societies. The law 
 by which it is regulated has, therefore, been called external 
 public law, droit public externe, but may more properly be 
 termed international law. 
 
 The recognition of any State by other States, and its admis- 
 sion into the general society of nations, may depend, or may 
 be made to depend, at the will of those other States, upon its 
 internal constitution or form of government, or the choice it 
 may make of its rulers. But whatever be its internal consti- 
 tution, or form of government, or whoever may be its rulers, 
 or even if it be distracted with anarchy, through a violent con- 
 test for the government between different parties among the 
 people, the State" still subsists in contemplation of law, until 
 its sovereignty is completely extinguished by the final disso- 
 lution of the social tie, or by some other cause which puts an 
 end to the being of the State. 
 
 Sovereignty is acquired by a State, either at the origin of 21. 
 the civil society of which it is composed, or when it separates f ^"" 
 itself from the community of which it previously formed a acquired, 
 part, and on which it was dependent (h). 
 
 This principle applies as well to internal as to external 
 sovereignty. But an important distinction is to be noticed, in 
 this respect, between these two species of sovereignty. The 
 internal sovereignty of a State does not, in any degree, depend 
 upon its recognition by other States. A new State, springing 
 into existence, does not require the recognition of other States 
 to confirm its internal sovereignty. The existence of the 
 State de facto is sufficient, in this respect, to establish its 
 sovereignty de jure. It is a State because it exists. 
 
 Thus the internal sovereignty of the United States of 
 
 (h) Kliiber, Droit ties Oens mo.lerne de 1' Europe, 23.
 
 30 NATIONS AND SOVEREIGN STATES. 
 
 America was complete from the time they declared themselves 
 " free, sovereign, and independent States," on the 4th of July, 
 1776. It was upon this principle that the Supreme Court 
 determined, in 1808, that the several States composing the 
 Union, so far as regards their municipal regulations, became 
 entitled, from the time when they declared themselves inde- 
 pendent, to all the rights and powers of sovereign States, and 
 that they did not derive them from concessions made by the 
 British King. The treaty of peace of 1782, contained a re- 
 cognition of their independence, not a grant of it. From 
 hence it resulted, that the laws of the several State govern- 
 ments were, from the date of the declaration of independence, 
 the laws of sovereign States, and as such were obligatory 
 upon the people of such State from the time they were 
 enacted. It was added, however, that the court did not mean 
 to intimate the opinion, that even the law of any State of the 
 Union, whose constitution of government had been recog- 
 nised prior to the 4th of July, 1776, and which law had been 
 enacted prior to that period, would not have been equally 
 obligatory (i). 
 
 21a. " A de jure government is one which, in the opinion of the person 
 
 L>< jure and ug j n g t h e phrase, ought to possess the powers of sovereignty, though at 
 
 govern 1 - the time it may be deprived of them. A de facto government is one 
 
 merits. which is really in possession of them, although the possession may be 
 
 wrongful or precarious" (&). 
 
 There are several degrees of what is called de facto government. 
 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 authorities from their customary 
 seats and functions, and establishes itself in their place, and so becomes 
 the actual government 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 on behalf of the country, or other- 
 wise, will in general be respected by the government de jure when 
 restored. The government of England under the Commonwealth is an 
 example of such a de facto government. 
 
 There is another species of de facto government, and it is one which 
 may be perhaps aptly called a government of paramount force. Its 
 distinguishing characteristics are : (1) That its existence is maintained 
 
 (i) M'llvaine v. Cow's Lessee, 4 Crancli, 212. 
 
 (V) [Montague Bernard, Neutrality of Great Britain during American Civil 
 War, p. 108J.
 
 NATIONS AND SOVEREIGN STATES. 31 
 
 by active military power, within the territories, and against the rightful 
 authority of an established and lawful government ; 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 wrong-doers, for those acts, though not 
 warranted by the laws of the rightful government. The government 
 of the Confederate States was one of this class. The rights and obliga- 
 tions of a belligerent were conceded to it in its military character, very 
 soon 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 enemy's territory, and the inhabitants of that territory were 
 held in most respects for enemies (I). But the Confederate States were 
 never recognized as an independent power. 
 
 The external sovereignty of any State, on the other hand, 
 may require recognition by other States in order to render it 
 perfect and complete. So long, indeed, as the new State con- 
 fines its action to its own citizens, and to the limits of its own 
 territory, it may well dispense with such recognition. But if 
 it desires to enter into that great society of nations, all the 
 members of which recognize rights to which they are mutually 
 entitled, and duties which they may be called upon reciprocally 
 to fulfil, such recognition becomes essentially necessary to the 
 complete participation of the new State in all the advantages 
 of this society. Every other State is at liberty to grant, or 
 refuse, this recognition, subject to the consequences of its own 
 conduct in this respect : and until such recognition becomes 
 universal on the part of the other States, the new State 
 becomes entitled to the exercise of its external sovereignty as 
 to those States only by whom that sovereignty has been recog- 
 nized (??i). 
 
 The identity of a State consists in its having the same 22. 
 origin or commencement of existence ; and its difference from ^Stotlf 
 all other States consists in its having a different origin or 
 commencement of existence. A State, as to the individual 
 members of which it is composed, is a fluctuating body ; but 
 in respect to the society, it is one and the same body, of which 
 the existence is perpetually kept up by a constant succession 
 of new members. This existence continues until it is inter- 
 rupted by some change affecting the being of the State (n). 
 
 (1) [Thorington v. Smith, 8 Wallace, 8llj. 
 
 (m) [See post, 27 d.] 
 
 (n) Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. 9, 3. Rutherforth's Inst.
 
 32 
 
 NATIONS AND SOVEREIGN STATES. 
 
 How af- 
 fected by 
 internal re- 
 volution. 
 
 23. 
 
 Conduct of 
 foreign 
 States to- 
 wards 
 another 
 nation in- 
 volved in 
 civil war. 
 
 Parties to 
 civil war 
 entitled to 
 rights of 
 war against 
 each other. 
 
 If this change be an internal revolution, merely altering 
 the municipal constitution and form of government, the State 
 remains the same ; it neither loses any of its rights, nor is 
 discharged from any of its obligations (o). 
 
 The habitual obedience of the members of any political 
 society to a superior authority must have once existed in order 
 to constitute a sovereign State. But the temporary suspension 
 of that obedience and of that authority, in consequence of a 
 civil war, does not necessarily extinguish the being of the 
 State, although it may affect for a time its ordinary relations 
 with other States. 
 
 Until the revolution is consummated, whilst the civil war 
 involving a contest for the government continues, other States 
 may remain indifferent spectators of the controversy, still con- 
 tinuing to treat the ancient government as sovereign, and the 
 government de facto as a society entitled to the rights of war 
 against its enemy ; or may espouse the cause of the party 
 which they believe to have justice on its side. In the first 
 case, the foreign State fulfils all its obligations under the law 
 of nations ; and neither party has any right to complain, pro- 
 vided it maintains an impartial neutrality. In the latter, it 
 becomes, of course, the enemy of the party against whom it 
 declares itself, and the ally of the other ; and as the positive 
 law of nations makes no distinction, in this respect, between 
 a just and an unjust war, the intervening State becomes 
 entitled to all the rights of war against the opposite party (7)). 
 
 If the foreign State professes neutrality, it is bound to 
 allow impartially to both belligerent parties the free exercise 
 of those rights which war gives to public enemies against each 
 other ; such as the right of blockade, and of capturing con- 
 traband and enemy's property (g). But the exercise of those 
 rights, on the part of the revolting colony or province against 
 the metropolitan country, may be modified by the obligation 
 
 b. ii. c. 10, 12, 13. Heffter, Das Europaische Volkerrecht, 24. [Texas v. 
 White, 7 Wallace, 729]. 
 
 (o) Grotius, lib. ii. cap. 9, 8. Rutherforth, b. ii. c. 10, 14. Puffendorf, 
 de Jur. Nat. et Gent. lib. viii. cap. 12, 13. 
 
 () Vattel Droit des Gens, liv. ii. ch. 4, 56. Martens, Precis du Droit 
 des Gens, liv. iii. ch. 2, 7982. [Letters of Historicus, p. 29 ; Halleck, 
 
 (q) 'United States v. Pahner, 3 Wheaton, 610 ; The Divina Pastorn, 4 Id. 
 63 ; The Nuestra Signora de la Caridad, Id. 502.
 
 NATIONS AND SOVEREIGN STATES. 33 
 
 of treaties previously existing between that country and foreign 
 States (r). 
 
 If, on the other hand, the change be effected by external 24. 
 violence, as by conquest confirmed by treaties of peace, its I( jjentity 
 effects upon the being of the State are to be determined by how af- 
 the stipulations of those treaties. The conquered and ceded ^eTnai 7 
 country may be a portion only, or the whole of the vanquished violence. 
 State. If the former, the original State still continues; if 
 the latter, it ceases to exist. In either case, the conquered 
 territory may be incorporated into the conquering State as a 
 province, or it may be united to it as a co-ordinate State with 
 equal sovereign rights. 
 
 Such a change in the being of a State may also be produced 25. 
 by the conjoint effect of internal revolution and foreign con- ^^^,,4 
 quest, subsequently confirmed, or modified and adjusted by of internal 
 international compacts. Thus the House of Orange was ex- t? rn ai X vi - 
 pelled from the Seven United Provinces of the Netherlands, leuce con - 
 in 1797, in consequence of the French Revolution and the treaty, 
 progress of the arms of France, and a democratic republic 
 substituted in the place of the ancient Dutch constitution. 
 At the same time the Belgic provinces, which had long been 
 united to the Austrian monarchy as a co-ordinate State, were 
 conquered by France, and annexed to the French republic by 
 the treaties of Campo Formio and Luneville. On the restora- 
 tion of the Prince of Orange, in 1813, he assumed the title 
 of Sovereign Prince, and afterwards King of the Netherlands ; 
 and by the treaties of Vienna, the former Seven United Pro- 
 vinces were united with the Austrian Low Countries into one 
 State, under his sovereignty (s). 
 
 Here is an example of two States incorporated into one, so 
 as to form a new State, the independent existence of each of 
 the former States entirely ceasing in respect to the other ; 
 whilst the rights and obligations of both still continue in 
 respect to other foreign States, except so far as they may be 
 affected by the compacts creating the new State. 
 
 In consequence of the revolution which took place in 
 Belgium, in 1830, this country was again severed from Hol- 
 land, and its independence as a separate kingdom acknow- 
 
 (r) See post, Part IV. ch. 3, 414. Rights of War as to Neutrals. 
 (s) Wheaton's Hist. Law of Nations, p. 492.
 
 34) NATIONS AND SOVEREIGN STATES. 
 
 ledged and guaranteed by the five great powers of Europe, 
 Austria, France, Great Britain, Prussia, and Russia. Prince 
 Leopold of Saxe-Cobourg having been subsequently elected 
 king of the Belgians by the national Congress, the terms and 
 conditions of the separation were stipulated by the treaty con- 
 cluded on the 15th of November, 1831, between those 
 powers and Belgium, which was declared by the conference of 
 London to constitute the invariable basis of the separation, 
 independence, neutrality, and state of territorial possession of 
 Belgium, subject to such modifications as might be the result 
 of direct negotiation between that kingdom and the Nether- 
 lands (f). 
 
 26. If the revolution in a State be effected by a province or 
 
 c n inC a e s - 0r colony shaking off its sovereignty, so long as the inde- 
 sertmgits pendence of the new State is not acknowledged by other 
 en eel hot" P owers > ^ ma J seem doubtful, in an international point of 
 considered view, whether its sovereignty can be considered as complete, 
 foreign however it may be regarded by its own government and 
 States. citizens. It has already been stated, that whilst the con- 
 test for the sovereignty continues, and the civil war rages, 
 other nations may either remain passive, allowing to both 
 contending parties all the rights which war gives to public 
 enemies ; or may acknowledge the independence of the new 
 State, forming with it treaties of amity and commerce ; or 
 may join in alliance with one party against the other. In the 
 first case, neither party has any right to complain so long as 
 other nations maintain an impartial neutrality, and abide the 
 event of the contest. The two last cases involve questions 
 which seem to belong rather to the science of politics than of 
 international law ; but the practice of nations, if it does not 
 furnish an invariable rule for the solution of these questions, 
 will, at least, shed some light upon them. The memorable 
 examples of the Swiss Cantons and of the Seven United Pro- 
 vinces of the Netherlands, which so long levied war, concluded 
 peace, contracted alliances, and performed every other act of 
 sovereignty, before their independence was finally acknow- 
 ledged, that of the first by the German empire, and that of 
 the latter by Spain, go far to show the general sense of 
 mankind on this subject. 
 
 (t) Wheaton's Hist. Law of Nations, pp. 538 555. [Motley's Life of John 
 Barneveld, chap, i.]
 
 NATIONS AND SOVEREIGN STATES. 35 
 
 The acknowledgment of the independence of the United 
 States of America by France, coupled with the assistance 
 secretly rendered by the French court to the revolted colonies, 
 was considered by Great Britain as an unjustifiable aggres- 
 sion, and, under the circumstances, it probably was so (w). 
 But had the French court conducted itself with good faith, 
 and maintained an impartial neutrality between the two belli- 
 gerent parties, it may be doubted whether the treaty of com- 
 merce, or even the eventual alliance between France and the 
 United States, could have furnished any just ground for a 
 declaration of war against the former by the British Govern- 
 ment. The more recent example of the acknowledgment of 
 the independence of the Spanish American provinces by the 
 United States, Great Britain, and other powers, whilst the 
 parent country still continued to withhold her assent, also 
 concurs to illustrate the general understanding of nations, 
 that where a revolted province or colony has declared and 
 shown its ability to maintain its independence, the recognition 
 of its sovereignty by other foreign States is a question of 
 policy and prudence only. 
 
 This question must be determined by the sovereign legisla- 27. 
 tive or executive power of these other States, and not by any S 6008 ?^ 
 subordinate authority, or by the private judgment of their indepeml- 
 individual subjects. Until the independence of the new ^ r y 
 State has been acknowledged, either by the foreign State foreign 
 where its sovereignty is drawn in question, or by the govern- 
 ment of the country of which it was before a province, courts 
 of justice and private individuals are bound to consider the 
 ancient state of things as remaining unaltered (x). 
 
 On the outbreak of a rebellion or insurrection in any country, it is 27a. 
 prima facie the duty of foreign States to take no part in the matter, and ^ ec g"i' 
 to allow events to follow their own course. But the facts of the case Kcrency 
 frequently render it necessary for other nations to take cognizance of and inde- 
 the existence of the insurrection. When countries are intimately con- pemknce. 
 nected with each other, through situation or commerce, a revolt of any 
 
 (u) Wheaton's Hist. Law of Nations, Ft. iii. 12, pp. 220-294. Ch. de 
 Martens, Nouvelles Causes c61ebres du Droit des Gens, tome i. pp. 370 498. 
 [It was the cause of war being declared by England. Historicus, p. 32.] 
 
 (x) City of Berne v. Bank of England, 9 Vesey, 347 ; The Manilla, 
 Edwards, Ad. Rep. 1, App. iv. Note D ; Boyt v. Gelston, 3 Wheaton, 324 ; 
 U. S. v. Palmer, ib. 634. [T/ie Nueva Anna, 6 Wheaton, 193 : Thompson v 
 Powles, 2 Simons, 194 ; U. S. v. Wagner, L. R. 2 Ch. 582.J 
 
 D 2
 
 36 NATIONS AND SOVEREIGN STATES. 
 
 magnitude in one, materially affects the rights andjjinterest of the others, 
 and entails upon them the necessity of pursuing some definite course of 
 conduct towards the disturbed State. This may be done either by 
 recognising the insurgents as belligerents, or by acknowledging them to 
 be independent. There is, however, a very material distinction between 
 the state of facts which will call for the former, and that which will 
 justify the latter mode of recognition. 
 27b. When a rebellion has assumed such proportions that it may, without 
 
 e lge abuse of language, be called a war, and when it is carried on by some 
 species of organised government or authority, in full possession of the 
 territory where it claims to exercise authority, neutral States may then 
 recognise such revolted government as a belligerent. This is simply 
 the assertion of a fact, and ought in no case to give offence to the parent 
 State. It is no violation of neutrality. It informs the subjects of the 
 neutral officially that war exists, and that they must observe towards 
 the combatants the duties that international law imposes. " The ques- 
 tion," said Lord Russell, "for neutral nations to consider is, what is the 
 character of the war, and whether it should be regarded as a war carried 
 on between parties severally in a position to wage war, and to claim 
 the rights and to perform the obligations attaching to belligerents?" (y) 
 By a recognition of belligerency the neutral accepts and recognises 
 within its jurisdiction the flag of the revolted government, the commis- 
 sions it issues, and the decisions of prize courts sitting within its 
 territory, not as being emanations and symbols of sovereignty, but as 
 proceeding from an organised body of persons who, so far as waging 
 war goes, are able to act as a sovereign State (a). When the struggle is 
 carried on by sea as well as by land, the interests of neutral commerce 
 render a recognition of belligerency absolutely necessary. Without it 
 the struggle is not, in the^eye of international law, a war, and if not 
 a war, there is no obligation on the part of neutrals to respect any 
 blockade, or to allow their merchant- vessels to be stopped and searched 
 on the high seas by the cruisers of either party. Inevitable collisions 
 would ensue, which would not improbably drag neutral nations into the 
 conflict. Moreover, the higher considerations of humanity require a 
 de facto war to be acknowledged as such. If the conflict continues 
 entirely unrecognised as a war, every insurgent is liable to be executed 
 as a rebel or traitor on land, and as a pirate on the sea. A recognition 
 of belligerency is not simply a benefit conferred upon insurgents ; it 
 gives the parent State belligerent rights, which it would not otherwise 
 possess, and relieves it from all responsibility for acts done in the 
 revolted territory, or by the insurgent authorities (a). 
 27c. The United States have loudly and continually asserted that the 
 
 Recogni- recognition of the belligerency of the Confederates by Great Britain, 
 
 tion of the 
 
 Confede- i y ) n, OT d. Kussell to Lord Lyons, 6th May, 1861. Parl. Papers N. America, 
 
 rate States. 1873 (No . 2), p. 79]. 
 
 (z) [Montague Bernard, Neutrality of Great Britain during American Civil 
 War, p. 115. See also Bluntschli in Revue de Droit International, 1870, 
 pp. 455, 4561. 
 
 (a) fWheaton, by Dana, n. 15. Parl. Papers N. America, 1873 (No. 2), 
 p 75 Parl. Papers N. America, 1876 (No. 3). p. 19. Whiting, War 
 Powers under the U. S. Constitution (43rd ed.), p. 333].
 
 NATIONS AND SOVEREIGN STATES. 37 
 
 was an unfriendly act ; but the right to accord it is not, and cannot be, 
 denied. "A nation," said the President, in his annual message to 
 Congress in 1869, " is its own judge when to accord the rights of 
 belligerency, either to a people struggling to free themselves from a 
 government they believe to be oppressive, or to independent nations at 
 war with each other " (&). The course pursued by the British Govern- 
 ment is not only justified by having been followed by all the chief 
 maritime States, but was, under the circumstances, the only proper 
 course. Hostilities commenced in April, 1861 ; on the 13th of April 
 Fort Sumter had fallen, and on the 19th President Lincoln declared the 
 ports of the seven provinces to be blockaded. No official copy of the 
 proclamation of the blockade was received in England till the 10th of 
 May, and Her Majesty's Proclamation of Neutrality, recognising the Con- 
 federates as belligerents, was not issued until the 14th of that monUi (c). 
 When the intimate relation between the two countries is considered, 
 it seems hardly possible to deny the propriety of this recognition. The 
 rebellion " sprang forth suddenly from the parent brain, a Minerva in 
 the full panoply of war," and the Supreme Court of the United States 
 decided it was a war from the commencement of hostilities (d). The 
 very fact of declaring a blockade was a virtual admission of the existence 
 of a war; and after this, what objection could there be to foreign nations 
 recognising it ? 
 
 A very different state of facts must exist before neutrals are justified 27d. 
 in recognising an insurgent province as independent. " When a sove- Recogni- 
 reign State, from exhaustion, or any other cause, has virtually and !^ n ^ nd 
 substantially abandoned the struggle for supremacy, it has no right to e^ce^" 
 complain if a foreign State treat the independence of its former subjects 
 as de facto established. When, on the other hand, the contest is not 
 absolutely or permanently decided, a recognition of the inchoate inde- 
 pendence of the insurgents by a foreign State, is a hostile act towards 
 the sovereign State, which the latter is entitled to resent as a breach of 
 neutrality and friendship " (e). It is to the facts of the case that foreign 
 nations must look. The question with them ought to be, Is there a 
 bond fide contest going on ? If it has virtually ceased, the recognition 
 of the insurgents is then at their discretion. It was upon this principle 
 that England and the other powers acted, in recognising the indepen- 
 dence of the South American Republics. 
 
 The action of some of the European powers towards Greece in 1827, ^7- 
 and Belgium in 1830, was not a simple recognition of independence, ^e^f 011 " 
 and does not come within the preceding rule. In both cases the powers Greece and 
 intervened to settle the disputes, and without this assistance the insur- Belgium, 
 gents would not have succeeded. In the case of Greece, the intervention 
 
 (ft) [Annual Message to Congress, 1869. See Parl. Papers N. America 
 1872 (No. 2), p. 17]. 
 
 (c) [See Sir A. Cockburn's Reasons for Dissenting from Geneva Award, 
 Parl. Papers, 1873 (No. 2), pp. 73, 81. Report of Neutrality Laws Com- 
 mission, 1869, p. 74. It is dated 13th May]. 
 
 (d) [The Prize Causes, 2 Black. 669]. 
 
 (e) [Letters of Historicus (Sir W. Harcourt), p. 9. See Phillimore. vol. ii. 
 xiii. Despatch of Canning, State Papers, vol. xii. pp. 913 4. Speeches 
 of Lord Lansdowne and Lord Liverpool, Hansard, vol. x. p. 970].
 
 38 NATIONS AND SOVEREIGN STATES. 
 
 was based on the ground of humanity, and for the suppression of piracy 
 and anarchy. In that of Belgium, the Powers, by their own act at the 
 treaty of Vienna, had united that country to Holland ; but finding the 
 union incompatible, they intervened to dissolve it. 
 
 27f. Tkg recognition of the independence of Texas by the United States, 
 
 irurTar 11 although it preceded that of other nations, did not take place until 
 1837, and all substantial struggle with Mexico was over early in 1836 (/). 
 But in the case of the Hungarian revolt of 1849, the conduct of the 
 United States, in investing an agent in Europe with power to declare 
 the willingness of his government promptly to recognise the independence 
 of Hungary in the event of her ability to maintain it, was unjustifiable 
 towards Austria. The sympathy which the American people undoubtedly 
 felt for the Hungarians should not have been thus expressed officially, 
 more especially as the geographical situation of both countries prevented 
 the United States being in any way concerned in the matter (gr). 
 Mr. Dana says that, " as a point of international law, the transaction 
 has little significance ;" and he adds that "the episode belongs rather 
 to history, as indicating the policy and feeling of the United States" (h~). 
 This might be so if the American Union were an insignificant State ; 
 but it can scarcely be denied that if insurgents learn that the govern- 
 ment of such a great power as the United States gives them its full 
 sympathy, and is prepared to recognise their independence at the earliest 
 possible moment, this may give the rebellion a very different com- 
 plexion, and is almost sure to strengthen the hands of the rebels, and 
 make it more difficult for the parent State to maintain its sovereignty. 
 
 28. rpke international effects produced by a change in the 
 
 Interim- r 
 
 tionai ef- person of the sovereign, or m the form of government of any 
 
 c f h C ange f in a State ma J be considered :- 
 
 the person I. As to its treaties of alliance and commerce. 
 
 of the sove- TT T , , . , , 
 
 reign, or in H. Its publlCjlebtS. 
 
 the internal jjj j^ s public domain, and private rights of property. 
 
 constitu- . . . , , 
 
 tion of the IV. As to wrongs or injuries done to the government or 
 
 state - citizens of another State. 
 
 2 . 9< I. Treaties are divided by text writers into personal and 
 
 real. The former relate exclusively to the persons of the 
 contracting parties, such as family alliances and treaties 
 guaranteeing the throne to a particular sovereign and his 
 family. They expire, of course, on the death of the king or 
 the extinction of his family. The latter relate solely to the 
 subject-matters of the convention, independently of the per- 
 
 (/) [Rennet v. Chambers, 14 Howard, 38. Annuaire des Deux Mondes, 
 1837, p. 745. Webster's Works, vol. vi. p. 414]. 
 
 (g) [Letters of Historicus, p. 5. President Taylor's Annual Message to 
 Congress, 1849]. 
 
 (fi) [Wheaton, by Dana, n. 18, p. 47].
 
 NATIONS AND SOVEREIGN STATES. 39 
 
 sons of the contracting parties. They continue to bind the 
 State, whatever intervening changes may take place in its 
 internal constitution, or in the persons of its rulers. The 
 State continues the same, notwithstanding such change, and 
 consequently the treaty relating to national objects remains in 
 force so long as the nation exists as an independent State. 
 The only exception to this general rule, as to real treaties, is 
 where the convention relates to the form of government itself, 
 and is intended to prevent any such change in the internal 
 constitution of the State (i). 
 
 The correctness of this distinction between personal jind 
 real treaties, laid down by Vattel, has been questioned by 
 more modern public jurists as not being logically deduced 
 from acknowledged principles. Still it must be admitted 
 that certain changes in the internal constitution of one 
 of the contracting States, or in the person of its sovereign, 
 may have the effect of annulling pre-existing treaties between 
 their respective governments. The obligation of treaties, by 
 whatever denomination they may be called, is founded, not 
 merely upon the contract itself, but upon those mutual rela- 
 tions between the two States, which may have induced them 
 to enter into certain engagements. Whether the treaty be 
 termed real or personal, it will continue so long as these 
 relations exist. The moment they cease to exist, by means 
 of a change in the social organization of one of the contracting 
 parties, of such a nature and of such importance as would 
 have prevented the other party from entering into the contract 
 had he foreseen this change, the treaty ceases to be obligatory 
 upon him. 
 
 On the separation of Belgium and Holland, the United States deemed 29 a. 
 themselves justified in withdrawing from an agreement to accept the Binding 
 King of the Netherlands as umpire on the north-east boundary question, t^j^ 
 When Texas joined the United States, France and England intimated 
 that she did not thereby cease to be bound by her treaties with them (k). 
 
 II. As to public debts whether due to or from the revo- 30. 
 lutionized State a mere change in the form of government Public 
 or in the person of the ruler, does not affect their obligation. 
 
 (i) Vattel, Droit des Gens, liv. ii. ch. 12, 183197. 
 (k) [Wheaton, by Dana, note 17, p. 48; Lord Aberdeen to Mr. Eliot, 3rd 
 Dec. 1845].
 
 40 
 
 NATIONS AND SOVEKEIGN STATES. 
 
 ceded by 
 treaty. 
 
 The essential form of the State, that which constitutes it an 
 independent community, remains the same ; its accidental 
 form only is changed. The debts being contracted in the 
 name of the State, by its authorised agents, for iits public 
 use, the nation continues liable for them, notwithstanding the 
 change in its internal constitution (I). The new government 
 succeeds to the fiscal rights, and is bound to fulfil the fiscal 
 obligations of the former government. 
 
 It becomes entitled to the public domain and other property 
 of the State, and is bound to pay its debts previously con- 
 tracted (ra). 
 
 30 1. Most treaties relating to the transfer of territory contain a clause pro- 
 
 debte of * f vidin for the P a y ment of the debts of the territory ceded. Thus, when 
 territory Holland and Belgium were united in 1814, it was provided that the new 
 Kingdom of the Netherlands should be responsible for the debts of both 
 countries (n). When Schleswig, Holstein, and Lauenburg were ceded 
 by Denmark, in 1864, to Austria and Prussia, it was agreed between the 
 parties that the debts of the Danish monarchy should be divided between 
 Denmark and the ceded provinces, in proportion to the population of the 
 two parts (o). On the acquisition by Italy of the Papal States, in 1864, 
 and of Venice in 1866, she, in each case, took upon herself the debts of 
 those provinces (p). There are also instances of territory being ceded, 
 and the State by which it is given up contracting to remain liable for its 
 debts, but these are not of common occurrence. When Saxe-Cobourg 
 ceded Lichtenburg to Prussia in 1834, a clause was inserted in the treaty 
 that Prussia should acquire the territory free of debts (q). The Treaty 
 of Delineation, 1844, between Austria, Sardinia, and some of the other 
 Italian States, contains a similar provision as regards territory ceded by 
 any of the contracting parties (r). 
 
 III. As to the public domain and private rights of pro- 
 perty. If the revolution be successful, and the internal change 
 in the constitution of the State is finally confirmed by the 
 event of the contest, the public domain passes to the new 
 government ; but this mutation is not necessarily attended 
 with any alteration whatever in private rights of property. 
 
 It may, however, be attended by such a change : it is com- 
 
 (l) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 9, viii. 13. Puffendorf, de 
 Jur. Nat. et Gent. lib. viii. cap. 12, 1, 2, 3. 
 
 (m) Heffter, Das Europaische Volkerrecht, 24. Bona won intelliguntur 
 nisi deducto sere alieno, 
 
 (n) [Art. VI. of the Treaty. See Hertslet, Map of Europe, vol. i. p. 38]. 
 
 (o) [Annual Reg. 1864, p. 236]. 
 
 (p) [Hertslet, Map of Europe, pp. 1628, 1721]. 
 
 (q) [Hertslet, Map of Europe, vol. ii. p. 948]. 
 
 (r) [Ibid., p. 1052]. 
 
 31. 
 
 Public do- 
 main and 
 private 
 rights of 
 property.
 
 NATIONS AND SOVEREIGN STATES. 41 
 
 petent for the national authority to work a transmutation, total 
 or partial, of the property belonging to the vanquished party ; 
 and if actually confiscated, the fact must be taken for right. 
 But to work such a transfer of proprietary rights, some posi- 
 tive and unequivocal act of confiscation is essential. 
 
 If, on the other hand, the revolution in the government of 
 the State is followed by a restoration of the ancient order of 
 things, both public and private property, not actually confis- 
 cated, revert to the original proprietor on the restoration of 
 the legitimate government, as in the case of conquest they 
 revert to the former owners, on the evacuation of the territory 
 occupied by the public enemy. The national domain, not 
 actually alienated by any intermediate act of the State, returns 
 to the sovereign along with the sovereignty. Private property, 
 temporarily sequestered, returns to the former owner, as in 
 the case of such property recaptured from an enemy in war on 
 the principle of the jus postliminii. 
 
 But if the national domain has been alienated, or the pri- 
 vate property confiscated by some intervening act of the State, 
 the question as to the validity of such transfer becomes more 
 difficult of solution. 
 
 Even the lawful sovereign of a country may, or may not, by 
 the particular municipal constitution of the State, have the 
 power of alienating the public domain. The general presump- 
 tion, in mere internal transactions with his own subjects, is, 
 that he is not so authorized (s). But in the case of interna- 
 tional transactions, where foreigners and foreign governments 
 are concerned, the authority is presumed to exist, and may be 
 inferred from the general treaty-making power, unless there 
 be some express limitation in the fundamental laws of the 
 State. So, also, where foreign governments and their sub- 
 jects treat with the actual head of the State, or the govern- 
 ment de facto, recognized by the acquiescence of the nation, 
 for the acquisition of any portion of the public domain or of 
 private confiscated property, the acts of such government must, 
 on principle, be considered valid by the lawful sovereign on 
 his restoration, although they were the acts of him who is 
 considered by the restored sovereign as an usurper (t). On 
 
 (s) Puffendorf, de Jur. Nat. et Gent. lib. viii. cap. 12, 13. Vattel 
 Droit des Gens, liv. i. chap. 21, , 260261. 
 
 (t) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 14, 16.
 
 42 NATIONS AND SOVEREIGN STATES. 
 
 the other hand, it seems that such alienations of public or 
 private property to the subjects of the State, may be annulled 
 or confirmed, as to their internal effects, at the will of the 
 restored legitimate sovereign, guided by such motives of policy 
 as may influence his counsels, reserving the legal rights of 
 bonce fidei purchasers under such alienation to be indemnified 
 for ameliorations (u). 
 
 Where the price or equivalent of the property sold or ex- 
 changed has accrued to the actual use and profit of the State, 
 the transfer may be confirmed, and the original proprietors 
 indemnified out of the public treasury, as was done in respect 
 to the lands of the emigrant French nobility, confiscated and 
 sold during the revolution. So, also, the sales of the national 
 domains situate in the German and Belgian provinces, united 
 to France during the revolution, and again detached from the 
 French territory by the treaties of Paris and Vienna in 1814 
 and 1815, or in the countries composing the Rhenish confede- 
 ration in the kingdom of Italy, and the Papal States, were, in 
 general, confirmed by these treaties, by the Germanic Diet, 
 or by the acts of the respective restored sovereigns. But a 
 long and intricate litigation ensued before the Germanic Diet, 
 in respect to the alienation of the domains in the countries 
 composing the kingdom of Westphalia. The Elector of Hesse 
 Cassel and the Duke of Brunswick refused to confirm these 
 alienations in respect to their territory, whilst Prussia, which 
 power had acknowledged vthe King of Westphalia, also acknow- 
 ledged the validity of his acts in the countries annexed to the 
 Prussian dominions by the treaties of Vienna (x). 
 
 3 la. "I apprehend it," said Vice-Chancellor James, "to be clear public 
 
 Opinion of universal law, that any government which de facto succeeds to any other 
 
 James, V. C. g OVe rnment, whether by revolution or restoration, conquest or reconquest, 
 
 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. This right of succession is a right not paramount, 
 
 but derived through the suppressed authority, and can only be enforced 
 
 in the same way, and to the same extent, and subject to the same cor- 
 
 (u) Kliiber, Droit des Gens, sec. ii. ch. 1, 258. 
 
 (x) Conversations Lexikon, art. Domainen-verkauf. Heffter, Das Euro- 
 
 faische Volkerrecht, 188. Kluber, offentliches Rechtdes deutschen Bundes, 
 169. Rotteck uud Welcker, Staats-Lexikon, art. Domainen-kaufer.
 
 NATIONS AND SOVEREIGN STATES. 43 
 
 relative obligations and rights, as if that authority had not been sup- 
 pressed, and was itself seeking to enforce it " (?/). 
 
 IV. As to wrongs or injuries done to the government or 32. 
 citizens of another State ; it seems, that, on strict principle, ^1T- 
 the nation continues responsible to other States for the juries, 
 damages incurred for such wrongs or injuries, notwithstand- 
 ing an intermediate change in the form of its government, or 
 in the persons of its rulers. This principle was applied in all 
 its rigour by the victorious allied powers in their treaties of 
 peace with France in 1814 and 1815. More recent examples 
 of its practical application have occurred in the negotiations 
 between the United States and France, Holland, and Naples, 
 relating to the spoliations committed on American commerce 
 under the government of Napoleon and the vassal. States 
 connected with the French empire. The responsibility of the 
 restored government of France for those acts of the preceding 
 ruler was hardly denied by it, even during the reigns of the 
 Bourbon kings of the elder branch, Louis XVHI. and 
 Charles X. ; and was expressly admitted by the present 
 government (Louis Philippe's) in the treaty of indemnities 
 concluded with the United States, in 1831. The application 
 of the same principle to the measures of confiscation adopted 
 by Murat in the kingdom of Naples was contested by the 
 restored government of that country ; but the discussions 
 which ensued were at last terminated, in the same manner, 
 by a treaty of indemnities concluded between the American 
 and Neapolitan governments. 
 
 A Sovereign State is generally defined to be any nation or 33. 
 people, whatever may be the form of its internal constitution, states de- 
 which governs itself independently of foreign powers (z). filied - 
 
 This definition, unless taken with great qualifications, 
 cannot be admitted as entirely accurate. Some States are 
 completely sovereign and independent, acknowledging no 
 superior but the Supreme Ruler and Governor of the universe. 
 The sovereignty of other States is limited and qualified in 
 various degrees. 
 
 (y) [U. S. v. McRae, L. R. 8 Eq. 75 ; Terrett v. Taylor, 9 Cranch, 50 ; Kelly 
 \. Harrison, 2 Johnson's cases, 29 ; Calvin's case, 7 Coke Rep. 27 ; Strothcr v. 
 Lucas, 12 Peters, 410; King of the Two Sicilies v. Wilcox, 1 Simons, N. S. 
 302]. 
 . (2) Vattel, Droit des Gens, liv. i. chap. 1, 4.
 
 44 NATIONS AND SOVEREIGN STATES. 
 
 33 a. " By a Sovereign State, we mean," says Prof. Montague Bernard (a), 
 
 "a community or number of persons permanently organised under a 
 sovereign government of their own ; and by a sovereign government 
 we mean a government, however constituted, which exercises the power 
 of making and enforcing law within a community, and is not itself sub- 
 ject to any superior government. These two factors, one positive the 
 other negative the exercise of power, and the absence of superior con- 
 trol compose the notion of sovereignty, and are essential to it." 
 
 Equality of All Sovereign States are equal in the eye of international 
 States. lgn l aw > whatever may be their relative power. The sovereignty 
 of a particular State is not impaired by its occasional obedi- 
 ence to the commands of other States, or even the habitual 
 influence exercised by them over its councils. It is only 
 when this obedience, or this influence, assumes the form of 
 express compact, that the sovereignty of the State, inferior in 
 power, is legally affected by its connection with the other. 
 Treaties of equal alliance, freely contracted between inde- 
 pendent States, do not impair their sovereignty. Treaties of 
 unequal alliance, guarantee, mediation, and protection, may 
 have the effect of limiting and qualifying the sovereignty 
 according to the stipulations of the treaties. 
 
 34. States which are thus dependent on other States, in respect 
 
 so^reign to the exercise of certain rights, essential to the per- 
 States. f ec external sovereignty, have been termed semi- sovereign 
 
 States (6). 
 
 City of Thus the city of Cracow, in Poland, with its territory, was 
 
 Cracow. declared by the Congress of Vienna to be a perpetually free, 
 independent, and neutral State, under the protection of 
 Russia, Austria, and Prussia (c). 
 
 By the final act of the Congress of Vienna, Art. 9, the three 
 great powers, Austria, Eussia, and Prussia, mutually en- 
 gaged to respect, and cause to be respected, at all times, the 
 neutrality of the free city of Cracow and its territory ; and 
 they further declared that no armed force should ever be 
 introduced into it under any pretext whatever. 
 
 It was at the same time reciprocally understood and ex- 
 pressly stipulated that no asylum or protection should be 
 granted in the free city or upon the territory of Cracow to 
 
 (a) [Neutrality of Great Britain during American Civil War, p. 107]. 
 
 (b) Kluber, Droit des Gens moderne de 1'Europe, 24. Heffter. D*s Euro- 
 paische Volkerrecht, 19. 
 
 (c) Acte du Congres de Vienne du 9 Juin, 1815, Art. 6, 9, 10.
 
 NATIONS AND SOVEREIGN STATES. 45 
 
 fugitives from justice, or deserters from the dominions of 
 either of the said high powers, and that upon a demand of 
 extradition being made by the competent authorities, such 
 individuals should be arrested and delivered up without delay 
 under sufficient escort to the guard charged to receive them 
 at the frontier (d). 
 
 By the convention concluded at Paris on the 5th of No- 35 - 
 vember, 1815, between Austria, Great Britain, Prussia, and states of 
 Russia, it is declared (Art. 1,) that the islands of Corfu, 
 Cephalonia, Zante, St. Maura, Ithaca, Cerigo and Paxo, with 
 their dependencies, shall form a single, free, and independent 
 State, under the denomination of the United States of the 
 Ionian Islands. The second article provides that this State 
 shall be placed under the immediate and exclusive protection 
 of His Majesty the King of the United Kingdom of Great 
 Britain and Ireland, his heirs and successors. By the third 
 article it is provided that the United States of the Ionian 
 Islands shall regulate, with the approbation of the protecting 
 power, their interior organization : and to give all parts of 
 this organization the consistency and necessary action, His 
 Britannic Majesty will devote particular attention to the legis- 
 lation and general administration of those States. He will 
 appoint a Lord High Commissioner who shall be invested 
 with the necessary authority for this purpose. The fourth 
 article declares, that, in order to carry into eifect without 
 delay these stipulations, the Lord High Commissioner shall 
 regulate the forms of convoking a legislative assembly, of 
 which he shall direct the operations, in order to frame a new 
 constitutional charter for the State, to be ratified by His 
 Britannic Majesty. The fifth article stipulates, that, in order 
 to secure to the inhabitants of the United States of the Ionian 
 Islands the advantages resulting from the high protection 
 under which they are placed, as well as for the exercise of the 
 rights incident to this protection, His Britannic Majesty shall 
 have the right of occupying and garrisoning the fortresses and 
 
 i", (d) Martens, Nouveau Recueil, tome ii. p. 386. Kliiber, Acten des Wiener 
 Confesses, Band V. 138. By a Convention, signed at Vienna, Nov. 6, 18 16, 
 between Russia, Austria, and Prussia, the city of Cracow was annexed to the 
 Empire of Austria. The governments of Great Britain, France, and Sweden 
 protested against this proceeding as a violation of the Federal act of 1816. 
 [See Hertslet, Map of Europe, voL ii. pp. 1065, 1073.]
 
 46 NATIONS AND SOVEREIGN STATES. 
 
 places of the said States. Their military forces shall be 
 under the orders of the commander of the troops of His 
 Britannic Majesty. The sixth article provides that a special 
 convention with the government of the United States of the 
 Ionian Islands shall regulate, according to their revenues, 
 the object relating to the maintenance of the fortresses and 
 the payment of the British garrisons, and their numbers in 
 the time of peace. The same convention shall also ascertain 
 the relations which are to subsist between this armed force 
 and the Ionian government. The seventh article declares 
 that the merchant flag of the Ionian islands shall bear, 
 together with the colours and arms it bore previous to 1807, 
 those which His Britannic Majesty may grant as a sign of the 
 protection under which the United Ionian States are placed ; 
 and to give more weight to this protection, all the Ionian 
 ports are declared, as to honorary and military rights, to be 
 under the British jurisdiction, commercial agents only, or 
 consuls charged only with the care of commercial relations, 
 shall be accredited to the United States of the Ionian Islands ; 
 and they shall be subject to the same regulations to which 
 consuls and commercial agents are subject in other indepen- 
 dent States (e). 
 
 On comparing this act with the stipulations of the treaty of 
 Vienna relating to the republic of Cracow, a material distinc- 
 tion will be perceived between the nature of the respective 
 sovereignty granted to each of these two States. The " free, 
 independent, and strictly neutral city of Cracow " was com- 
 pletely sovereign, though under the protection of Austria, 
 Prussia, and Russia ; whilst the Ionian Islands, although they 
 formed " a single free and independent State," under the 
 protection of Great Britain, were closely connected with the 
 protecting power both by the treaty itself and by the constitu- 
 tion framed in pursuance of its stipulations, in such a manner 
 as materially to abridge both its internal and external sove- 
 reignty. In practice, the United States of the Ionian Islands 
 were not only constantly obedient to the commands of the 
 protecting power, but they were governed as a British colony 
 by a Lord High Commissioner named by the British crown, 
 who exercised the entire executive, and participated in the 
 (e) Martens, Nouveau Recueil, tome ii. p. 663.
 
 NATIONS AND SOVEREIGN STATES. 47 
 
 legislative power with the Senate and legislative Assembly, 
 under the constitution of the State (/). 
 
 During the Crimean war two Ionian vessels were captured bv British -. 
 ,. , m i ,1 i ' i i j Status of 
 
 ships on a voyage to 1 aganrog, and their condemnation was demanded on i on j an 
 
 the ground that lonians were in the same position as British subjects as citizens, 
 regards trade with the enemy. The Court held that the status of the 
 Ionian Islands, and their relation to Great Britain were regulated exclu- 
 sively by the Treaty of Paris, 1815. That Great Britain had the power 
 to make peace or war for them, but that the intention to place them in a 
 state of war must be clearly expressed, as they did not become so ex 
 necessitate from Great Britain being at war. The ships were therefore 
 released, as the lonians, being deemed neither British subjects nor allies, 
 were entitled to trade with Russia during the war, England never having 
 expressly declared the Islands to be at war with Russia (g). 
 
 In 1864 England, with the consent of the other Powers who had agreed 35 b. 
 to the Treaty of 1815, renounced her protectorate over the Ionian Islands, j^^""^ 
 and they were from that time united to the Kingdom of Greece, and i aiu i s to 
 ceased to exist as a semi-sovereign State. The British troops were with- Greece, 
 drawn on the 2nd of June, 1864 (K). 
 
 Besides the free city of Cracow and the United States of 36. 
 the Ionian Islands, several other semi- sovereign or dependent sovereign 11 
 States are recognized by the existing public law of Europe. States. 
 These are : 
 
 1. The principalities of Moldavia, Wallachia, and Servia, 
 under the suzerainete of the Ottoman Porte and, the protec- 
 torate of Russia, as defined by the successive treaties between 
 these two powers, confirmed by the treaty of Adrianople, 
 1829 (t). 
 
 The Russian protectorate over these provinces ceased in 1854, and the 36a - 
 
 privileges accorded to them by the Sultan were thenceforward placed ~ essi . on * 
 
 under the collective guarantee of the five great Powers (j). By a conven- protector- 
 
 tion entered into in 1858, between Turkey and the Powers, Moldavia ate. 
 
 and Wallachia were placed under the Suzerainty of the Sultan, but were Union of 
 
 to carry on their own administration freely, and exempt from any inter- Moldavia 
 ference of the Sublime Porte, within the limits stipulated by the agree- 
 ment of the guaranteeing Powers with the Suzerain Court. An annual 
 tribute was to be paid to Turkey by each province. The executive power 
 
 (/) Martens, Precis du Droit des Gens, liv. i. ch. 2, 20. Note a, 3me 
 edition. 
 
 (g) [The Ionian ships, 1 Spinks, 193. See also Forsyth, Cases and Opinions, 
 p. 472]. 
 
 (h) [Hertslet, Map of Europe, vol. iii. p. 1610]. 
 
 (t) Whcaton's Hist, of the Law of Nations, pp. 556560. 
 
 (j) [Hertslet, Map of Europe by Treaty, vol. ii. p. 1225J.
 
 48 NATIONS AND SOVEREIGN STATES. 
 
 was to be vested in a Hospodar, and in the event of any of the immuni- 
 ties of the principalities being violated, the Hospodar was first to repre- 
 sent this to the Suzerain Power, and if not attended to, he might then 
 communicate with the guaranteeing Powers. The Hospodar was to be 
 represented at Constantinople by agents (Capou-Kiaga) accepted by the 
 Porte (&). In 1861, Moldavia and Wallachia were united into one pro- 
 vince by a firman of the Sultan, and have since been known under the 
 name of Roumania, though this designation has not been officially 
 recognised by the Powers (I). In 1877 Roumania permitted the Russian 
 troops to pass through her territory, while marching against Turkey, and 
 ultimately her own forces joined the Russian army. 
 
 Servia. The relation of Servia to Turkey was made very similar to that of 
 
 Roumania by the Peace of Paris, 1856, except that Turkey retained the 
 right of placing garrisons in some of the Servian fortresses (m). This 
 right was renounced in 1867 (n). The treaty of peace between Servia 
 and the Porte, in 1877, left the former in much the same position as 
 before. It is impossible to foresee what the future of these principalities 
 may be. The present Turko-Russian war may result in changing the 
 whole course of events in the East, and upsetting the fabric which the 
 diplomacy of Europe has been so long occupied in constructing. 
 
 Monaco. 2. The Principality of Monaco, which had been under the 
 
 protectorate of France from 1641 until the French Revolution, 
 was replaced under the same protection by the Treaty of 
 Paris, 1814, (Art. 3,) for which was substituted that of Sar- 
 dinia by the Treaty of Paris, 1815, (Art. 1,) (o). 
 
 36 b. In 1861 the Prince of Monaco sold a portion of his territory to France, 
 
 and the principality now consists of little more than the town of Monaco 
 itself. It still continues as a semi-Sovereign State (p). 
 
 Poiizza. 3. The Republic of Polizza in Dalmatia, under the protec- 
 
 torate of Austria (q) . 
 
 The former 4. The former Germanic Empire was composed of a great 
 
 German number of States, which, although enjoying what was called 
 
 territorial superiority, (Landeshoheit,) could not be considered 
 
 as completely sovereign, on account of their subjection to the 
 
 legislative and judicial power of the emperor and the empire. 
 
 (k) [Convention of 19th Aug. 1858. Hertslet, Map of Europe by Treaty, 
 vol. ii. p. 1329]. 
 (I) [See Ibid., vol. ii. p. 1498]. 
 (m) [See Ibid., vol. ii. p. 1262]. 
 () [Ibid., vol. iii. p. 1800]. 
 
 (o) Martens, Nouveau Recueil, torn, ii pp. 5, 687. 
 ( p) [Hertslet, Map of Europe by Treaty, vol. ii. p. 1462]. 
 Martens, Precis du Droit des Gens, liv. i. ch. 2, 20. 
 
 (q) Martens, Precis du Droit des Gens, liv. i. ch. 2, 20. [There is no 
 >n#er any question as to Polizza. It is now 
 20, n. 2; Wheaton, by Lawrence, n. 26.] 
 
 longer any question as to Polizza. It is now absorbed into Austria. Heft'ter, 
 i; Whe
 
 NATIONS AND SOVEREIGN STATES. 49 
 
 These have all heen absorbed in the sovereignty of the States 
 composing the present Germanic Confederation, with the ex- 
 ception of the Lordship of Kniphausen, on the North Sea, 
 which still retains its former feudal relation to the Grand 
 Duchy of Oldenburg, and may, therefore, be considered as a 
 scrni- sovereign State (r). 
 
 5. Egypt had been held by the Ottoman Porte, during the Egypt, 
 dominion of the Mamelukes, rather as a vassal State than as 
 a subject province. The attempts of Mehemet Ali, after the 
 destruction of the Mamelukes, to convert his title as a prince- 
 vassal into absolute independence of the Sultan, and even to 
 extend his sway over other adjoining provinces of the empire, 
 produced the convention concluded at London the 15th July, 
 1840, between four of the great European powers, Austria, 
 Great Britain, Prussia, and Russia, to which the Ottoman 
 Porte acceded. In consequence of the measures subse- 
 quently taken by the 'contracting parties for the execution of 
 this treaty, the hereditary Pashalick of Egypt was finally 
 vested by the Porte in Mehemet Ali, and his lineal de- 
 scendants, on the payment of an annual tribute to the Sultan, 
 as his suzerain. All the treaties and all the laws of the 
 Ottoman Empire were to be applicable to Egypt, in the same 
 manner as to other parts of the empire. But the Sultan 
 consented that, on condition of the regular payment of this 
 tribute, the Pasha should collect, in the name and as the 
 delegate of the Sultan, the taxes and imposts legally esta- 
 blished, it being, moreover, understood that the Pasha should 
 defray all the expenses of the civil and military administra- 
 tion ; and that the military and naval force maintained by him 
 should always be considered as maintained for the service of 
 the State (s). 
 
 The international position of Egypt was recently discussed by Sir R. 36 c. 
 Phillimore in the Admiralty Court. After examining all the firmans of Present 
 the Porte, and the other authorities on the subject, his lordship said that 
 " the result of the historical inquiry as to the status of His Highness the 
 Khedive, is as follows : That in the firmans, whose authority upon this 
 point appears to be paramount, Egypt is invariably spoken of as one of 
 the provinces of the Ottoman Empire ; that the Egyptian army is regu- 
 lated as part of the military force of the Ottoman Empire ; that the taxes 
 
 (r) Heffter, Das Eui-opaische Volkerrecht, 19. 
 (s) Wheaton, Hist. Law of Nations, pp. 572583.
 
 50 
 
 NATIONS AND SOVEEEIGN STATES. 
 
 36d. 
 Republics 
 of San 
 Marino and 
 Andorre. 
 
 37. 
 
 Tributary 
 and vassal 
 
 States. 
 
 Relations 
 between 
 the Otto- 
 man Porte 
 and the 
 Barbary 
 States. 
 
 are imposed and levied in the name of the Porte ; that the treaties of the 
 Porte are binding upon Egypt, and that she has no separate jus legationis ; 
 that the flag for both the army and the navy is the flag of the Porte. All 
 these facts, according to the unanimous opinion of accredited writers, are 
 inconsistent and incompatible with those conditions of sovereignty which 
 are necessary to entitle a country to be ranked as one among the great 
 community of States" (). The Khedive has, since the judgment in this 
 case was delivered, obtained from the Sultan a new firman, granting him 
 some powers of sovereignty he did not before possess, and whose absence 
 was commented on by Sir E. Phillimore (u). A contingent of Egyptian 
 troops was sent to serve with the Turkish army in the present war with 
 Russia (1877). 
 
 Another semi-Sovereign State is the Republic of San Marino, which 
 was formerly under the protection of the Holy See, but which is now 
 under that of Italy (a;). Andorre, which is sometimes included among 
 semi- Sovereign States, is a small independent republic situate on the 
 Pyreneean frontier, between France and Spain (y). 
 
 Tributary States, and States having a feudal relation to 
 each other, are still considered as sovereign, so far as their 
 sovereignty is not affected by this relation. Thus, it is evi- 
 dent that the tribute, formerly paid by the principal maritime 
 powers of Europe to the Barbary States, did not at all affect 
 the sovereignty and independence of the former. So also the 
 King of Naples had been a nominal vassal of the Papal See, 
 ever since the eleventh century ; but this feudal dependence, 
 abolished in 1818, was never considered as impairing the 
 sovereignty of the kingdom of Naples (z) . 
 
 The political relations between the Ottoman Porte and the 
 Barbary States are of a very anomalous character. Their 
 occasional obedience to the commands of the Sultan, accom- 
 panied with the irregular payment of tribute, does not prevent 
 them from being considered by the Christian powers of Europe 
 and America as independent States, with whom the inter- 
 national relations of war and peace are maintained, on the 
 same footing as with other Mohammedan sovereignties. 
 During the Middle Ages, and especially in the time of the 
 Crusades, they were considered as pirates : 
 
 " Bugia ed Algieri, infanii nidi di corsari," 
 
 (t) [The CharMeh, L. R. 4 A. & E. 84]. 
 
 (u} [Phillimore, vol. iii., Introduction. Journal des Debats, 7th July, 1873]. 
 (*) [Convention of 22nd March, 1862. See Hertslet, Map of Europe, vol. ii. 
 p. 1508], 
 
 (y) [Ibid., vol. ii. p. 1510. State Papers, vol. xxx. p. 1217]. 
 (z, Ward's Hist, of the Law of Nations, vol. ii. p. 69.
 
 NATIONS AND SOVEREIGN STATES. 51 
 
 as Tasso calls them. But they have long since acquired the 
 character of lawful powers, possessing all those attributes 
 which distinguish a lawful State from a mere association of 
 robbers (a). " The Algerines, Tripoli tans, Tunisians, and 
 those of Salee," says Bynkershoek, " are not pirates, but 
 regular organized societies, who have a fixed territory and an 
 established government, with whom we are alternately at 
 peace and at war, as with other nations, and who, therefore, 
 are entitled to the same rights as other independent States. 
 The European sovereigns often enter into treaties with tjiem, 
 and the States- General have done it in several instances. 
 Cicero defines a regular enemy to be : Qui liabet rempublicam, 
 curiam, cerarium, consensum et concordiam civium, rationem 
 aliquant, si res ita tidisset, pads et fcederis. (Philip. 4, c. 
 14.) All these things are to be found among the barbarians 
 of Africa ; for they pay the same regard to treaties of peace 
 and alliance that other nations do, who generally attend more 
 to their convenience than to their engagements. And if they 
 should not observe the faith of treaties with the most scrupulous 
 respect, it cannot be well required of them ; for it would be 
 required in vain of other sovereigns. Nay, if they should 
 even act with more injustice than other nations do, they 
 should not, on that account, as Huberus very properly 
 observes, (De Jure Civitat. 1. iii. c. 5, 4, n. ult.) lose the 
 rights and privileges of sovereign States (b) . 
 
 The political relation of the Indian nations on this continent 38. 
 towards the United States, is that of semi- sovereign States, American 
 under the exclusive protectorate of another power. Some of Indians, 
 these savage tribes have wholly extinguished their national 
 fire, and submitted themselves to the laws of the States 
 within whose territorial limits they reside ; others have ac- 
 knowledged, by treaty, that they hold their national existence 
 at the will of the State ; others retain a limited sovereignty, 
 and the absolute proprietorship of the soil. The latter is the 
 case with the tribes to the west of Georgia (c). 
 
 Thus, the Supreme Court of the United States determined, 
 in 1831, that, though the Cherokee nation of Indians, dwelling 
 
 (a) Sir L. Jenkins's Works, vol. ii. p. 791. The Helena, 4 C. Rob. 5. 
 
 (b) Bynkershoek, Qiuest. Jur. Pub. lib. i. cap. xvii. 
 
 (c) Fletcher v. Peck, 6 Crauch, 146. 
 
 E 2
 
 52 NATIONS AND SOVEREIGN STATES. 
 
 within the jurisdictional limits of Georgia, was not a " foreign 
 State " in the sense in which that term is used in the Con- 
 stitution, nor entitled, as such, to proceed in that Court 
 against the State of Georgia, yet the Cherokees constituted a 
 State, or a distinct political society, capable of managing its 
 own affairs, and governing itself, and that they had uniformly 
 been treated as such since the first settlement of the country. 
 The numerous treaties made with them by the United States 
 recognize them as a people capable of maintaining the rela- 
 tions of peace and war, and responsible in their political 
 capacity. Their relation to the United States was nevertheless 
 peculiar. They were a domestic dependent nation ; their 
 relation to us resembled that of a ward to his guardian ; and 
 they had an unquestionable right to the lands they occupied, 
 until that right should be extinguished by a voluntary cession 
 to our government (d). 
 
 The same decision was repeated by the Supreme Court, in 
 another case, in 1832. In this case, the Court declared that 
 the British crown had never attempted, previous to the Revo- 
 lution, to interfere with the national affairs of the Indians, 
 farther than to keep out the agents of foreign powers, who 
 might seduce them into foreign alliances. The British 
 government purchased the alliance and dependence of the 
 Indian nations by subsidies, and purchased their lands, when 
 they were willing to sell, at the price they were willing to 
 take, but it never coerced a surrender of them. The British 
 crown considered them as nations, competent to maintain the 
 relations of peace and war, and of governing themselves under 
 its protection. The United States, who succeeded to the 
 rights of the British crown, in respect to the Indians, did 
 the same, and no more ; and the protection stipulated to be 
 afforded to the Indians, and claimed by them, was understood 
 by all parties as only binding the Indians to the United 
 States, as dependent allies. A weak power does not sur- 
 render its independence and right to self-government, by 
 associating with a stronger and taking its protection. This 
 was the settled doctrine of the Law of Nations, and the 
 Supreme Court therefore concluded and adjudged, that the 
 
 (d) The Cherokee Nation v. TJie State of Georgia, 5 Peters, 1. [See also 
 The State of Georgia v. Stanton, 6 Wallace, 71.]
 
 NATIONS AND SOVEREIGN STATES. 53 
 
 Cherokee nation was a distinct community, occupying its own 
 territory, with boundaries accurately described, within which 
 the laws of Georgia could not rightfully have any force, and 
 into which the citizens of that State had no right to enter 
 but with the assent of the Cherokees themselves, or in con- 
 formity with treaties, and with the acts of Congress (e). 
 
 More recent cases have established that the Indians residing within 88 a. 
 the limits of the United States are subject to their authority ; and where P'' esent 
 the country occupied by them is not within the limits of one of the the Indians 
 States, Congress may, by law, punish any offence committed there, 
 whether the offender be an Indian or a white man (/). An Act of Con- 
 gress of the year 1872 declares that " no Indian nation or tribe within 
 the territory of the United States shall be acknowledged or recognized as 
 an independent nation, tribe, or power, with whom the United States 
 may contract by treaty ; but no obligation of any treaty lawfully made 
 and ratified with any such Indian nation or tribe prior to March 3rd, 
 1871, shall be hereby invalidated or impaired" (g). The Indians are, 
 however, protected in the territories retained by them. Thus every 
 person who makes a settlement on any lands secured or granted by 
 treaty with the United States to any Indian tribe, is liable to a penalty 
 of 1000 dollars (h). No one but an Indian may trade in their territory 
 without a license (f) ; and even hunting there is prohibited (&). 
 
 States may be either single, or may be united together 39 
 under a common sovereign prince, or by a federal compact. Single or 
 
 1. If this union under a common sovereign is not an in- g^tes 
 corporate union, that is to say, if it is only personal in the 40. 
 reigning sovereign ; or even if it is real, yet if the different Pe onal 
 component parts are united with a perfect equality of rights, under the 
 the sovereignty of each State remains unimpaired (I). erdV ^ 
 
 Thus, the kingdom of Hanover was formerly held by the 
 king of the United Kingdom of Great Britain and Ireland, 
 separately from his insular dominions. Hanover and the 
 
 (e) Kent's Comment, on American Law, vol. iii. p. 383 (12th ed). 
 
 (/) [V. S. v. Rogers, 4 Howard, 572; Mackcy v. Coxe, 18 Howard, 104; 
 Holden v. Joy, 17 Wallace, 211; U. S. v. Holliday, 3 Wallace, 407; Abbott's 
 National Digest, vol. iii. Tit. Indians]. 
 
 (g) [U. S. Kevised Statutes. Title, xxviii. Indians, cli. ii. sec. 2079]. 
 
 (h) [Ibid., ch. iii. sec. 2118; Worcester v. State of Georgia, 6 Peters, 515; 
 Clark v. Smith, 13 Peters, 195; Latimer v. Potect, 14 Peters, 4; U. S. v. 
 Joseph, 4 Otto, 614]. 
 
 (i) [Ibid., ch. iv. sec. 2133]. 
 
 (k) [Ibid., sec. 2137. See also the recent cases of Holdsn v. Joy, 17 Wal- 
 lace, 211; U. S. v. Cook, 19 Wallace, 591]. 
 
 (I) Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. 9, 8, 9. Kluber, Droit 
 des Gens moderne de 1'Europe, Part I. cap. 1, 27. Heffter, Das Europaische 
 Volkerrecht, 20.
 
 NATIONS AND SOVEREIGN STATES. 
 
 41. 
 
 al uni 
 
 Real 
 under the 
 same 
 sovereign. 
 
 41a. 
 Constitu- 
 tion of the 
 Austro- 
 Hungarian 
 monarchy. 
 
 United Kingdom were subject to the same prince, without any 
 dependence on each other, both kingdoms retaining their 
 respective national rights of sovereignty. It is thus that the 
 King of Prussia is also sovereign prince of Neufchatel, one of 
 the Swiss Cantons ; which does not, on that account, cease to 
 maintain its relations with the Confederation, nor is it united 
 with the Prussian monarchy (m). 
 
 So, also, the kingdoms of Sweden and Norway are united 
 under one crowned head, each kingdom retaining its separate 
 constitution, laws, and civil administration, the external 
 sovereignty of each being represented by the king. 
 
 The union of the different States composing the Austrian 
 monarchy is a real union. The hereditary dominions of the 
 House of Austria, the kingdoms of Hungary and Bohemia, 
 the Lombardo-Venetian kingdom, and other States, are all 
 indissolubly united under the same sceptre, but with distinct 
 fundamental laws, and other political institutions. 
 
 It appears to be an intelligible distinction between such a 
 union as that of the Austrian States, and all other unions 
 which are merely personal under the same crowned head, that, 
 in the case of a real union, though the separate sovereignty of 
 each State may still subsist internally, in respect to its 
 co-ordinate States, and in respect to the imperial crown ; yet 
 the sovereignty of each is merged in the general sovereignty 
 of the empire, as to their international relations with foreign 
 powers. The political unity of the States which compose the 
 Austrian Empire forms what the German publicists call a 
 community of States (Gesammtstaat) ; a community which 
 reposes on historical antecedents. It is connected with the 
 natural progress of things, in the same way as the empire was 
 formed, by an agglomeration of various nationalities, which 
 defended, as long as possible, their ancient constitutions, and 
 only yielded, finally, to the overwhelming influence of superior 
 force. 
 
 Since the year 1867, the Austro-Hungarian monarchy, as it is now 
 called, forms a bipartite State, consisting of a German, or " Cisleithan " 
 monarchy, and a Magyar, or " Transleithan " kingdom, the former 
 officially designated as Austria, and the latter as Hungary. Each of the 
 
 (m) [This sovereignty was renounced by the King of Prussia in 1857, and 
 Neufchatel bas since formed part of the Swiss Confederation, on the same 
 footing as the other cantons. See Hertslet, Map of Europe, vol. ii. p. 1317].
 
 NATIONS AND SOVEREIGN STATES. 55 
 
 two countries has its own parliament, ministers, and government, while 
 the connecting ties between them consists in the person of the hereditary 
 sovereign, in a common army, navy, and diplomacy, and in a controlling 
 body known as the delegations. The delegations form a parliament of 
 120 members, one-half of whom are chosen by, and represent, the legis- 
 lature of Austria, and the other half that of Hungary, the Upper House 
 of each returning 20, and the Lower House 40 delegates. On subjects 
 affecting the common affairs, the delegations have a decisive vote, and 
 their resolutions require neither the confirmation nor the approbation 
 of the representative assemblies in which they have their source. The 
 jurisdiction of the delegations is limited to foreign affairs and war, and 
 their final vote on these points is binding upon the whole empire (n). 
 
 2. An incorporate union is such as that which subsists T 42- 
 
 x Incorporate 
 
 between Scotland and England, and between Great Britain union. 
 and Ireland ; forming out of the three kingdoms an empire, 
 united under one crown and one legislature, although each 
 may have distinct laws and a separate administration. The 
 sovereignty, internal and external, of each original kingdom 
 is completely merged in the United Kingdom, thus formed 
 by their successive unions. 
 
 3. The union established by the Congress of Vienna, be- 43. 
 tween the empire of Russia and the kingdom of Poland, is of P n 
 
 a more anomalous character. By the final act of the con- Russia and 
 gress, the duchy of Warsaw, with the exception of the pro- olaild ' 
 vinces and districts otherwise disposed of, was reunited to the 
 Russian Empire; and it was stipulated that it should be 
 irrevocably connected with that empire by its constitution, to 
 be possessed by his majesty the Emperor of all the Russias, 
 his heirs and successors in perpetuity, with the title of King 
 of Poland ; his Majesty reserving the right to give to this 
 State, enjoying a distinct administration, such interior exten- 
 sion as he should judge proper ; and that the Poles, subject 
 respectively to Russia, Austria, and Prussia, should obtain a 
 representation and national institutions, regulated according 
 to that mode of political existence which each government, 
 to whom they belong, should think useful and proper to 
 grant (o). 
 
 (n) [The Statesman's Year-Book, 1877. Martin. Tit. Austria-Hungary. 
 And see The Austro-Hmigarian Empire. Baron de Worms (1877)]. 
 
 (o) " Le Duche de Varsovie, a 1'exception des provinces et districts, clont il 
 a 6te autrement dispose dans les articles suivans, est reuni a I'Empire de 
 Russie. II y sera lie irnSvocablement par sa Constitution, pour etrc possede 
 par S. M. 1'Empereur de toutes les Russies, ses heritiers et ses successeurs a
 
 56 
 
 NATIONS AND SOVEREIGN STATES. 
 
 Charter 
 accorded by 
 the Em- 
 peror 
 Alexander 
 to the 
 kingdom of 
 Poland, in 
 1815. 
 
 Manifesto 
 of the 
 Emperor 
 Nicholas, 
 1832. 
 
 In pursuance of these stipulations, the Emperor Alexander 
 granted a constitutional charter to the kingdom of Poland, on 
 15th (27th) November, 1815. By the provisions of this 
 charter, the kingdom of Poland was declared to be united to 
 the Kussian Empire by its constitution ; the sovereign autho- 
 rity in Poland was to be exercised only in conformity to it ; 
 the coronation of the King of Poland was to take place in the 
 Polish capital, where he was bound to take an oath to observe 
 the charter. The Polish nation was to have a perpetual re- 
 presentation, composed of the king and the two chambers 
 forming the Diet ; in which body the legislative power was to 
 be vested, including that of taxation. A distinct Polish 
 national army and coinage, and distinct military orders were 
 to be preserved in the kingdom. 
 
 In consequence of the revolution and reconquest of Poland 
 by Russia, a manifesto was issued by the Emperor Nicholas, 
 on the 14th (26th) of February, 1832, by which the kingdom 
 of Poland was declared to be perpetually united (rJuni) to 
 the Russian Empire, and to form an integral part thereof ; 
 the coronation of the emperors of Russia and kings of Poland 
 hereafter to take place at Moscow, by one and the same actj 
 the Diet to be abolished, and the army of the empire and of 
 the kingdom to form one army, without distinction of Russian 
 or Polish troops ; Poland to be separately administered by a 
 Governor-General and Council of Administration, appointed 
 by the emperor, and to preserve its civil and criminal code, 
 subject to alteration and revision by laws and ordinances 
 prepared in the Polish Council of State, and subsequently 
 examined and confirmed in the Section of the Council of State 
 of the Russian Empire, called The Section for the Affairs of 
 Poland; consultative Provincial States to be established in 
 the different Polish provinces, to deliberate upon such affairs 
 concerning the general interest of the kingdom of Poland as 
 might be submitted to their consideration ; the Assemblies of 
 
 perpetuite". Sa Majeste Imperiale se reserve de dormer a cet 6tat, jouissant 
 d'une administration distincte, 1'extension interieure qu'elle jugera con- 
 venable. Elle pi-endra, avec ses autres titres, celui de Czar, Hoi de Pologne, 
 conformement au protocole usite et consacre" par les titres attaches a ses autres 
 possessions. 
 
 "Les Polonais, sujets respectifs de la Russie, de rAutriehe, et de la 
 Prusse, obtiendvout une representation et des institutions nationales, reglees 
 d'apres la mode d'existence politique que chacun des Gouvernemens auxquelles 
 ils appartiennent jugera utile et convenable de leur accorder." Art. 1.
 
 NATIONS AND SOVEREIGN STATES. 57 
 
 the Nobles, Communal Assemblies, and Council of the 
 "VYaiwodes to be continued as formerly. Great Britain and 
 France protested against this measure of the Russian govern- 
 ment, as an infraction of the spirit if not of the letter of the 
 treaties of Vienna (p). 
 
 4. Sovereign States permanently united together by a 44- 
 federal compact, either form a cyst am of conf< derated States Ua i n. 
 (properly so called), or a supreme federal government, which 
 has been sometimes called a compositive State (q). 
 
 In the first case, the several States are connected together 45 - 
 by a compact, which does not essentially differ from an ordi- crated 
 
 nary treaty of equal alliance. Consequently the internal 
 sovereignty of each member of the union remains unimpaired ; ing its 
 the resolutions of the federal body being enforced, not as laws 
 directly binding on the private individual subjects, but through 
 the agency of each separate government, adopting them, and 
 giving them the force of law within its own jurisdiction. 
 Hence it follows, that each confederated individual State, and 
 the federal body for the affairs of common interest, may 
 become, each in its appropriate sphere, the object of distinct 
 diplomatic relations with other nations. 
 
 In the second case, the federal government created by the 46 - 
 act of union is sovereign and supreme, within the sphere of federal* 6 
 the powers granted to it by that act ; and the government g vern - 
 acts not only upon the States which are members of the con- compositive 
 federation, but directly on the citizens. The sovereignty, State- 
 both internal and external, of each several State is impaired 
 by the powers thus granted to the federal government, and the 
 limitations thus imposed on the several State governments. 
 The compositive State, which results from this league, is alone 
 a sovereign power. 
 
 Germany, as it was constituted under the name of the 47. 
 Germanic Confederation, presented the example of a system 
 of sovereign States, united by an equal and permanent Con- tion. 
 federation. All the sovereign princes and free cities of 
 Germany, including the Emperor of Austria and the King of 
 Prussia, in respect to their possessions which , formerly be- 
 
 (p) "Wheaton's History of the Law of Nations, p. 434. 
 
 (q) These two species of federal compacts are very appropriately expressed 
 in the German language, by the respective terms of Staatenbuiid and 
 Hundesstaat.
 
 58 NATIONS AND SOVEREIGN STATES. 
 
 longed to the Germanic Empire, the King of Denmark for the 
 duchy of Holstein, and the King of the Netherlands for the 
 grand duchy of Luxembourg, were united in a perpetual 
 league, under the name of the Germanic Confederation, 
 established by the Federal Act of 1815, and completed and 
 developed by several subsequent decrees. 
 
 The object of this union was declared to be the preservation 
 of the external and internal security of Germany, the inde- 
 pendence and inviolability of the confederated States. All the 
 members of the confederation, as such, were entitled to equal 
 rights. New States might be admitted into the union by the 
 unanimous consent of the members (r). 
 
 The affairs of the union were confided to a Federative Diet, 
 which sat at Frankfort-on-the-Maiue, in which the respective 
 States were represented by their ministers, and were entitled 
 to the following votes, in what was called the Ordinary 
 Assembly of the Diet : 
 
 Votes. 
 
 Austria 
 
 Prussia 
 
 Bavaria . 
 
 Saxony 
 
 Hanover . . 
 
 Wurtemburg 
 
 Baden 
 
 Electoral Hesse 
 
 The Grand Duchy of Hesse 
 
 Denmark (for Holstein) . . . . . . 
 
 The Netherlands (for Luxemburg) .... 
 
 The Grand Ducal and Ducal Houses of Saxony . . 
 Brunswick and Nassau ...... 
 
 Mecklenburg-Schwerin and Strelitz . . . . 
 
 Oldenburg, Anhalt, and Schwartzburg 
 
 Hohenzollern, Lichtenstein, Reuss, Schauniburg, Lippe, 
 
 Waldeck, and Hesse Homburg .... 1 
 The Free Cities of Lubeck, Frankfort, Bremen, and 
 
 Hamburg .1 
 
 Total . . . - * , , . . 17 
 
 Austria presided in the Diet, but each State had a right to 
 propose any measure for deliberation. 
 
 (r) Acte final du Congres de Vienne, art. 53, 54, 55. Dentscbe Bundes 
 acte, vom 8 Juni, 1815, art. 1. Wiener Sckluss-Acte, vom 15 Mai, 1820, 
 art. 1, 6.
 
 NATIONS AND SOVEREIGN STATES. 
 
 The Diet was formed into what was called a General 
 Assembly (Plenum), for the decision of certain specific ques- 
 tions. The votes in plena were distributed as follows : 
 
 Votes. 
 Anstria ......... 4 
 
 Prussia ......... 4 
 
 Saxony 4 
 
 Bavaria ......... 4 
 
 Hanover ........ 4 
 
 Wurtemburg ........ 4 
 
 Baden 3 
 
 Electoral Hesse 3 
 
 The Grand Duchy of Hesse 3 
 
 Holstein 3 
 
 Luxemburg ........ 3 
 
 Brunswick 2 
 
 Mecklenburg-Schwerin ...... 2 
 
 Nassau 2 
 
 Saxe Weimar ......... 
 
 Gotha 
 
 Coburg ......... 
 
 Meinengen 
 
 Hilburghausen 
 
 Mecklenburg-Strelitz 
 
 Oldenburg 1 
 
 Anhalt-Dessau ........ 1 
 
 Anhalt-Bernburg ....... 1 
 
 Anhalt-Coethen 1 
 
 Schwartzburg-Sondershausen ..... 1 
 
 Schwartzburg-Rudolstadt 1 
 
 Hohenzollern-Hechingeii 
 
 Lichtenstein 
 
 Hohenzollern-Sigmaringen 
 
 Waldeck 
 
 Reuss (elder branch) ...... 
 
 Reuss (younger branch) ..... 
 
 Schaumburg-Lippe . . . . 
 
 Lippe 
 
 Hesse-Homburg ....... 
 
 The Free City of Lubeck 
 
 Frankfort 
 
 Bremen ..... 
 
 Hamburg ..... 
 
 Total .70 
 
 Every question to be submitted to the general assembly of 
 the Diet was first discussed in the ordinary assembly, where it
 
 60 NATIONS AND SOVEREIGN STATES. 
 
 was decided by a majority of votes. But in the general assembly, 
 (in pleno,) two thirds of all the votes were necessary to a 
 decision. The ordinary assembly determined what subjects 
 were to be submitted to the general assembly. But all ques- 
 tions concerning the adoption or alteration of the fundamental 
 laws of the Confederation, or organic regulations establishing 
 permanent institutions, as means of carrying into effect the 
 declared objects of the union, or the admission of new mem- 
 bers or concerning the affairs of religion, were submitted 
 to the general assembly ; and, in all these cases, absolute 
 unanimity was necessary to a final decision (s). 
 
 The Diet had power to establish fundamental laws for the 
 Confederation, and organic regulations as to its foreign, mili- 
 tary, and internal relations (t). 
 
 All the States guaranteed to each other the possession of 
 their respective dominions within the union, and engaged to 
 defend, not only entire Germany, but each individual State, 
 in case of attack. When war was declared by the Confedera- 
 tion, no State could negotiate separately with the enemy, nor 
 conclude peace or an armistice, without the consent of the 
 rest. Each member of the Confederation might contract 
 alliances with other foreign States, provided they were not 
 directed against the security of the Confederation, or the 
 individual States of which it was composed. No State could 
 make war upon another member of the union, but all the 
 States were bound to submit their differences to the decision 
 of the Diet. This body was tp endeavour to settle them by 
 mediation; and if unsuccessful, and a juridical sentence 
 became necessary, resort was to be had to an austregal pro- 
 ceeding, (Austragal Instanz,} to which the litigating parties 
 were bound to submit without appeal (u). 
 
 Each country of the Confederation was entitled to a local 
 constitution of States (x). The Diet might guarantee the con- 
 stitution established by any particular State, upon its appli- 
 cation ; and thereby acquired the right of settling the 
 differences which might arise respecting its interpretation or 
 execution, either by mediation or judicial arbitration, unless 
 
 (5) Acte final, art. 58. Wiener Schluss-Acte, art. 1215. 
 (t) Acte final, art. 62. (u) Ibid, art 63. 
 
 (x) "In alien Bumlestaaten wird eine lamlestandische Verfassung statt- 
 fmden." Bundes-Acte, art 13.
 
 NATIONS AND SOVEREIGN STATES. 
 
 such constitution should have provided other means of deter- 
 mining controversies of this nature (y). 
 
 In case of rebellion or insurrection, or imminent danger 
 thereof in one or more States of the Confederation, the Diet 
 might interfere to suppress such insurrection or rebellion, as 
 threatening the general safety of the Confederation. And it 
 might in like manner interfere on the application of any one 
 State ; or, if the local government was prevented by the in- 
 surgents from making such application, upon the notoriety 
 of the fact of the existence of such insurrection, or imminent 
 danger thereof, to suppress the same by the common force of 
 the Confederation (z). 
 
 In case of the denial or unreasonable delay of justice by any 
 State to its subjects, or others, the aggrieved party might 
 invoke the mediation of the Diet ; and if the suit between 
 private individuals involved a question respecting the conflict- 
 ing rights and obligations of different members of the union, 
 and it could not be amicably arranged by compromise, the 
 Diet might submit the controversy to the decision of an 
 austregal tribunal (). 
 
 The decrees of the Diet were executed by the local govern- 
 ments of the particular States of the Confederation, on appli- 
 cation to them by the Diet for that purpose, excepting in 
 those cases where the Diet interfered to suppress an insurrec- 
 tion or rebellion in one or more of the States ; and even in 
 these instances, the execution was to be enforced, so far as 
 practicable, in concert with the local government against 
 whose subjects it was directed (&). 
 
 The subjects of each member of the union had the right of 
 acquiring and holding real property in any other State of the 
 Confederation ; of migrating from one State to another ; of 
 entering into the military or civil service of any one of the 
 confederated States, subject to the paramount claim of their 
 own native sovereign ; and of exemption from every droit de 
 detraction, or other similar tax, on removing their effects 
 from one State to another, unless where particular reciprocal 
 compacts had stipulated to the contrary. The Diet had power 
 to establish uniform laws relating to the freedom of the press, 
 
 (?/) Wiener Schluss-Acte, art. 60. (a) Ibid. art. 29, 30. 
 
 (2) Ibid. art. 2528. (b) Ibid. art. 32. 
 
 61
 
 62 NATIONS AND SOVEREIGN STATES. 
 
 and to secure to authors the copyright of their works through- 
 out the Confederation (c). 
 
 The Diet had also power to regulate the commercial inter- 
 course between the different States, and the free navigation of 
 the rivers belonging to the Confederation, as secured by the 
 treaty of Vienna (d). 
 
 The different Christian sects throughout the Confederation 
 were entitled to an equality of civil and political rights ; and 
 the Diet was empowered to take into consideration the means 
 of ameliorating the civil condition of the Jews, and of secur- 
 ing to them in all the States of the Confederation the full 
 enjoyment of civil rights, upon condition that they submitted 
 themselves to all the obligations of other citizens. In the 
 meantime, the privileges granted to them by any particular 
 State were to be maintained (e). 
 
 48. Notwithstanding the great mass of powers thus given to 
 
 internal the Diet, and the numerous restraints imposed upon the 
 sovereignty ex ercise of internal sovereignty, by the individual States of 
 states of which the union was composed, it does not appear that the 
 inan^Coii- Germanic Confederation could be distinguished in this respect 
 federation, from an ordinary equal alliance between independent sove- 
 reigns, except by its permanence, and by the greater number 
 and complication of the objects it was intended to embrace. 
 In respect to their internal sovereignty, the several States of 
 the Confederation did not form, by their union, one compo- 
 sitive State, nor were they subject to a common sovereign. 
 Though what were called the fundamental laws of the Con- 
 federation were framed by the Diet, which had also power to 
 make organic regulations respecting its federal relations ; 
 these regulations were not, in general, enforced as laws 
 directly binding on the private individual subjects, but only 
 through the agency of each separate government adopting 
 them, and giving them the force of laws within its own local 
 jurisdiction. If there were cases where the Diet might right- 
 fully enforce its own resolutions directly against the indi- 
 vidual subjects, or the body of subjects within any particular 
 State of the Confederation, without the agency of the local 
 
 (c) Bundes-Acte, art. 18 
 (d) 
 
 Ibid. art. 19. Acte final, art. 108-117. 
 (j Bundes-Acte, art. 16.
 
 NATIONS AND SOVEREIGN STATES. 63 
 
 governments, (and there appear to have been some such 
 cases,) then those cases, when they occurred formed an excep- 
 tion to the general character of the union, which then so far 
 became a compositive State, or supreme federal government. 
 All the members of the Confederation, as such, were equal in 
 rights ; and the occasional obedience of the Diet, and through 
 it of the several States, to the commands of the two great 
 preponderating members of the Confederation, Austria and 
 Prussia, or even the habitual influence exercised by them 
 over its councils, and over the councils of its several States, 
 did not, in legal contemplation, impair their internal sove- 
 reignty, or change the legal character of their union. 
 
 In respect to the exercise by the confederated States of '49. 
 their external sovereignty, we have already seen that the ^.nafscm!- 
 power of contracting alliances with other States, foreign to reignty of 
 the Confederation, was expressly reserved to all the confede- 
 rated States, with the proviso that such alliances were not 
 directed against the security of the Confederation itself, or 
 that of the several States of which it was composed. Each 
 State also retained its rights of legation, both with respect to 
 foreign powers and to its co- States (/). Although the diplo- 
 matic relations of the Confederation with the five great Euro- 
 pean Powers, parties to the Final Act of the Congress of 
 Vienna, 1815, were habitually maintained by permanent lega- 
 tions from those powers to the Diet at Frankfort, yet the 
 Confederation itself was not habitually represented by public 
 ministers at the courts of these, or any other foreign powers ; 
 whilst each confederated State habitually sent to, and received 
 such minister from other sovereign States, both within and 
 without the Confederation. It was only on extraordinary 
 occasions, such, for example, as the case of a negotiation for 
 the conclusion of a peace or armistice, that the Diet appointed 
 plenipotentiaries to treat with foreign powers (</). 
 
 According to the original plan of confederation as proposed 
 by Austria and Prussia, those States, not having possessions 
 out of Germany, were to have been absolutely prohibited from 
 making alliances or war with any power foreign to the Confede- 
 ration, without the consent of the latter. But this proposition 
 
 (/) Kliiber, Offentliches Recht des Deutschen Buudes, 461, 463. 
 (g) Kliiber, 148, 152 a. Wiener Schluss-Acte, 49.
 
 64 NATIONS AND SOVEREIGN STATES. 
 
 was subsequently modified by the insertion of the above 63rd 
 article of the Federal Act of 1815. And the limitations con- 
 tained in that article upon the war-making and treaty- making 
 powers, both of the Confederation itself and of its several 
 members, were more completely defined by the Final Act of 
 1820 (/*). 
 
 It resulted clearly from these provisions, that such of the 
 confederated States, as had possessions without the limits of 
 the Confederation, retained the authority of declaring and 
 carrying on war against any power foreign to the Confedera- 
 tion, independently of the Confederation itself, which remained 
 neutral in such a war, unless the Diet should recognize the 
 existence of a danger threatening the federal territory. The 
 sovereign members of the Confederation, having possessions 
 without the limits thereof, were the Emperor of Austria, the 
 King of Prussia, the King of the Netherlands, and the King 
 of Denmark. Whenever, therefore, any one of these sovereigns 
 undertook a war in his character of a European power, the 
 Confederation, whose relations and obligations were unaffected 
 by such war, remained a stranger thereto ; in other words, it 
 remained neutral, even if the war was defensive on the part of 
 the confederated sovereign as to his possessions without the 
 Confederation, unless the Diet recognized the existence of a 
 danger threatening the federal territory (i). 
 
 It seems, also, to result from these provisions, taken in 
 connection with the above-mentioned modification in the 
 original plan of Confederation, that even those States not 
 having possessions without the limits of the Confederation, 
 retained the sovereign authority of separately declaring and 
 carrying on war, and of negotiating and making peace with 
 any power foreign to the Confederation, excepting in the single 
 case of a war declared by the Confederation itself; in which 
 case, no State could negotiate with the enemy, nor conclude 
 peace or an armistice, without the consent of the rest. 
 
 In other cases of disputes, arising between any State of the 
 Confederation and foreign powers, and the former asked the 
 intervention of the Diet, the Confederation might interfere as 
 an ally, or as a mediator ; might examine the respective com- 
 
 (h) Wheaton's Hist. Law of Nations, pp. 447, 448, 457460. 
 (i) Wiener Schluss-Acte, art. 46, 47. Kliiber, Otfentliclies Recht des 
 Deutschen Bundes, 152 f.
 
 NATIONS AND SOVEREIGN STATES. 65 
 
 plaints and pretensions of the contending parties. If the 
 result of the investigation was, that the co- State was not in 
 the right, the Diet would make the most serious representa- 
 tions to induce it to renounce its pretensions, would refuse its 
 interference, and, in case of necessity, would take all proper 
 means for the preservation of peace. If, on the contrary, the 
 preliminary examination proved that the confederated State 
 was in the right, the Diet would employ its good offices to 
 ohtain for it complete satisfaction and security (/c). 
 
 It follows, that not only the internal but the external The Ger- 
 sovereignty of the several States composing the Germanic Seratk>n " 
 Confederation, remained unimpaired, except so far as it might is a system 
 be affected by the express provisions of the fundamental laws ra t e d 
 authorising the federal body to represent their external States - 
 sovereignty. In other respects, the several confederated States 
 remained independent of each other, and of all States foreign 
 to the Confederation. Their union constituted what the 
 German public jurists call a Staatenbund, as contradis- 
 tinguished from a Sundesstaat ; that is to say, a supreme 
 Federal Government (I). 
 
 Very important modifications were introduced into the 60. 
 Germanic Constitution, by an act of the Diet of the 28th of 
 
 1832. 
 
 (k) Wiener Schluss-Acte, art. 3549. Kliiber, 462. 
 
 (I) Kliiber, 103a, 176, 248, 460, 461, 462. Hefftej, das Europaische 
 Volkerrecht, 21. 
 
 The Treaty of Paris, 1814, art. 6, declares: " Les etats de 1'Allemagne 
 seront independans et unis par un lien federatif. " 
 
 The Final Act of the Congress of Vienna, 1815, art. 54, declares : " Lebnt 
 de cette Confederation est le m;iintien de la surete oxte'rieure et interieure 
 de 1'Allemagne, de I'mdependance et de 1'inviolabilite de ses etats confederes." 
 
 And the Schluss-Acte, of 1820, declares : 
 
 " Art 1. Der deutsche Bund ist ein vblkerrer.htlicher Verein der deutschen 
 souverainen Fiirsten uud freien Stadte, zur Bewahrung der Unabhangigkeit 
 und Unverletzbarkeit ihrer im Buude begriffenen Staaten, und zur Erhaitung 
 der innern und aussern Sicherheit Deutschlands. 
 
 "Art. 2. Dieser Verein besteht in seinen Innern als eine Gemeinschaft 
 selbstandiger, unter sich unabhangiger Staaten, mit wcchselleitigen gleicheii 
 Vertrags-Rechten und Vertrags-Obliegenheiten, in seinen aussern Verhalt- 
 nissen aber, als eiue in politischer Einheit verbundene Gesammt-Macht. " 
 
 TRANSLATION. 
 
 Article 1. The Germanic Confederation is an international union of the 
 sovereign princes and Free Cities of Germany, formed for the maintenance of 
 the independence and inviolability of the confederated States; as well as for 
 the internal and external security of Germany. 
 
 Article 2. In respect to its internal relations, this Confederation forms a 
 body of States independent between themselves, and bound to each other by 
 rights and duties reciprocally stipulated. In respect to its external relations, 
 it forms a collective power established on the principle of political union.
 
 66 NATIONS AND SOVEREIGN STATES. 
 
 June, 1832. By the 1st article of this act it was declared, 
 that, whereas, according to the 57th article of the Final Act 
 of the Congress of Vienna, the powers of the State ought to 
 remain in the hands of its chief, and the sovereign ought not 
 to be bound by the local constitution to require the co-opera- 
 tion of the legislative Chambers, except as to the exercise of 
 certain specified rights ; the sovereigns of Germany, as mem- 
 bers of the Confederation, have not only the right of rejecting 
 the petitions of the Chambers, contrary to this principle, but 
 the object of the Confederation makes it their duty to reject 
 such petitions. 
 
 Art. 2. Since according to the spirit of the said 57th article 
 of the Final Act, and its inductions, as expressed in the 58th 
 article, the Chambers cannot refuse to any German sovereign 
 the necessary means of fulfilling his federal obligations, and 
 those imposed by the local constitution ; the cases in which 
 the Chambers endeavour to make their consent to the taxes 
 necessary for these purposes depend upon the assent of the 
 sovereign to their propositions upon any other subject, are to 
 be classed among those cases to which are to be applied the 
 25th and 26th articles of the Final Act, relating to resistance 
 of the subjects against the government. 
 
 Art. 3. The interior legislation of the States belonging to 
 the Germanic Confederation, cannot prejudice the objects of 
 the Confederation, as expressed in the 2nd article of the 
 original act of confederation, and in the 1st article of the 
 Final Act ; nor can this legislation obstruct in any manner 
 the accomplishment of the federal obligations of the State, 
 and especially the payment of the taxes necessary to fulfil 
 them. 
 
 Art. 4. In order to maintain the rights and dignity of the 
 Confederation, and of the assembly representing it, against 
 usurpations of every kind, and, at the same time, to facilitate 
 to the States which are members of the Confederation the 
 maintenance of the constitutional relations between the local 
 governments and the legislative Chambers, there shall be 
 appointed by the Diet, in the first instance, for the term of 
 six years, a commission charged with the supervision of the 
 deliberations of the Chambers, and with directing their atten- 
 tion to the propositions and resolutions which may be found
 
 NATIONS AND SOVEREIGN STATES. 67 
 
 In opposition to the federal obligations, or to the rights of 
 sovereignty, guaranteed by the compacts of the Confederation. 
 This commission is to report to the Diet, which, if it finds 
 the matter proper for further consideration, will put itself in 
 relation with the local government concerned. After the 
 lapse of six years, a new arrangement is to be made for the 
 prolongation of the commission. 
 
 Art. 5. Since according to the 59th article of the Final Act, 
 in those States where the publication of the deliberations of 
 the Chambers is secured by the constitution, the free expres- 
 sion of opinion, either in the deliberations themselves, or in 
 their publication through the medium of the press, cannot be 
 so extended as to endanger the tranquillity of the State itself, 
 or of the Confederation in general, all the governments belong- 
 ing to it mutually bind themselves, as they are already bound 
 by their federal relations, to adopt and maintain such measures 
 as may be necessary to prevent and punish every attack against 
 the Confederation in the local Chambers. 
 
 Art. 6. Since the Diet is already authorized by the 17th 
 article of the Final Act, for the maintenance of the true mean- 
 ing of the original act of confederation, to give its provisions 
 such an interpretation as may be consistent with its object, in 
 case doubts should arise in this respect, it is understood that the 
 Confederation has the exclusive right of interpreting, so as to 
 produce their legal effect, the original act of the Confederation 
 and the Final Act, which right it exercises by its constitu- 
 tional organ, the Diet (m). 
 
 Further modifications of the federal constitution were in- 51. 
 troduced by the act of the Diet of the 30th of October, 1834, 
 in consequence of the diplomatic conferences held at Vienna 183i - 
 in the same year, by the representatives of the different States 
 of Germany. 
 
 By the 1st article of this last-mentioned act, it was provided 
 that, in case of differences arising between the government of 
 any State and the legislative Chambers, either respecting the 
 interpretation of the local constitution, or upon the limits of 
 the co-operation allowed to the Chambers, in carrying into 
 effect certain determinate rights of the sovereign, and es- 
 pecially in case of the refusal of the necessary supplies for the 
 
 (m) Wheaton, Hist. Law of Nations, pp. 460486. 
 
 F 2
 
 NATIONS AND SOVEREIGN STATES. 
 
 support of government, conformably to the constitution and 
 the federal obligations of the State, after every legal and con- 
 stitutional means of conciliation have been exhausted, the 
 differences shall be decided by a federal tribunal of arbitrators, 
 appointed in the following manner : 
 
 2. The representatives, each holding one of the seventeen 
 votes in the ordinary assembly of the Diet, shall nominate, 
 once in every three years, within the States represented by 
 them, two persons distinguished by their reputation and length 
 of service in the judicial and administrative service. The 
 vacancies which may occur, during the said term of three 
 years, in the tribunal of arbitrators thus constituted, shall be 
 in like manner supplied as often as they may occur. 
 
 8. Whenever the case mentioned in the first article arises, 
 and it becomes necessary to resort to a decision by this 
 tribunal, there shall be chosen from among the thirty-four, 
 six judges arbitrators, of whom three are to be selected by the 
 government, and three by the Chambers. This number may 
 be reduced to two, or increased to eight, by the consent of the 
 parties ; and in case of the neglect of either to name judges 
 they may be appointed by the Diet. 
 
 4. The arbitrators thus designated shall elect an additional 
 arbiter as an umpire, and iu case of an equal division of votes, 
 the umpire shall be appointed by the Diet. 
 
 5. The documents respecting the matter in dispute shall be 
 transmitted to the umpire, by whom they shall be referred to 
 two of the judges arbitrators to report upon the same, the one 
 to be selected from among those chosen by the government, 
 the other from among those chosen by the Chambers. 
 
 6. The judges arbitrators, including the umpire, shall then 
 meet at a place designated by the parties, or, in case of dis- 
 agreement, by the Diet, and decide by a majority of voices 
 the matter in controversy according to their conscientious 
 conviction. 
 
 7. In case they require further elucidations before proceed- 
 ing to a decision, they shall apply to the Diet, by whom the 
 same shall be furnished. 
 
 8. Unless in case of unavoidable delay under the circum- 
 .stances stated in the preceding article, the decision shall be 
 pronounced within the space of four mouths at farthest from
 
 NATIONS AND SOVEREIGN STATES. 69 
 
 the nomination of the umpire, and be transmitted to the Diet, 
 in order to be communicated to the government of the State 
 interested. . 
 
 9. The sentence of the judges arbitrators shall have the 
 effect of an austregal judgment, and shall be carried into 
 execution in the manner prescribed by the ordinances of the 
 Confederation. 
 
 In the case of disputes more particularly relating to the 
 financial budget, the effect of the arbitration extends to the 
 period of time for which the same may have been voted. 
 
 10. The costs and expenses of the arbitration are to be ex- 
 clusively borne by the State interested, and, in case of disputes 
 respecting their payment, they shall be levied by a decree of 
 the Diet. 
 
 11. The same tribunal shall decide upon the differences and 
 disputes which may arise, in the free towns of the Confedera- 
 tion, between the Senate and the aiithorities established by 
 the burghers in virtue of their local constitutions. 
 
 12. The different members of the confederation may resort 
 to the same tribunal of arbitration to determine the contro- 
 versies arising between them ; and whenever the consent of 
 the States respectively interested is given for that purpose, the 
 Diet shall take the necessary measures to organize the tribunal 
 according to the preceding articles (n). 
 
 The growing power of the Germanic Confederation, and the desire of 8 5 la 
 establishing German unity, gave rise to the project of creating an empire German 
 that should embrace the whole German race. In 1848 a congress as- unit y- 
 sembled at Frankfort for the purpose of discussing this scheme, but 
 nothing was then effected. Since that date the idea has been frequently 
 revived, but the rivalry of Austria and Prussia, and the ambition and 
 jealousy of the minor States long prevented its being carried out. 
 
 The war of 1864 entered into by Austria and Prussia against Denmark, 
 tended materially to promote German unity ; and the subsequent war of 
 1866, between Austria and Prussia, resulted in the dissolution of the 
 Germanic Confederation, and the establishment of the North German 
 Confederation. Austria was thereby excluded from participating in the Qg^ an 
 affairs of Germany (o), and Prussia placed at the head of a national move- Confedera- 
 ment. This Confederation consists of the kingdoms of Prussia and Saxony tion. 
 the Grand Duchies of Mecklenburg-Schwerin, Mecklenburg-Strelitz, 
 Oldenburg, and Saxe Weimar, the Duchies of Anhalt, Saxe-Meiningen, 
 
 (n) For further details respecting the Germanic Constitution, see Wheaton's 
 History of the Law of Nations, p. 455, et seq. 
 
 (o) [Hertslet, Map of Europe by Treaty, vol. iii. p. 1699].
 
 70 
 
 NATIONS AND SOVEREIGN STATES. 
 
 51b. 
 The 
 
 German 
 Einyire 
 since the 
 war with 
 France. 
 
 51c. 
 The Zoll- 
 
 Saxe-Coburg, and Saxe-Altenburg, some smaller States, and the free cities 
 of Hamburg, Bremen, and Lubeck (p). These States agreed to enter 
 into a perpetual confederation for the defence of the Federal territory, 
 and of the rights prevailing therein, as well as for foste.rihg the welfare 
 of the German people. 
 
 After the war with France in 1870, the idea of unity received its 
 fullest development. The kingdoms of Bavaria and Wurtemburg, and 
 the Grand Duchies of Baden and Hesse, were united to the North 
 German Confederation, and the whole received the name of the German 
 Empire (q). Within this Confederate territory the empire exercises 
 the right of legislation according to the tenor of the Constitution, and 
 with the effect that the imperial laws take precedence of the laws of the 
 States (r). Legislation is carried on by a Council of the Confederation, 
 and an Imperial Diet (s). The Council consists of the representatives 
 of the members of the Confederation, amongst whom the votes are 
 divided in such manner that Prussia has, with the former votes of 
 Hanover, Electoral Hesse, Holstein, Nassau and Frankfort, seventeen 
 votes, Bavaria six, Saxony four, Wurtemburg four, Baden three, Hesse 
 three, Mecklenburg-Schwerin two, Brunswick two, and seventeen 
 smaller States, one each (). The totality of such votes can only be 
 given in one sense, and there are fifty-eight votes in all. 
 
 The Presidency of the Confederation belongs to the King of Prussia, 
 who bears the name of German Emperor, and who represents the empire 
 internationally, declares war, makes peace, enters into treaties, and re- 
 ceives ambassadors. The consent of the Council is necessary for de- 
 claring war, unless the territory of the empire is actually attacked (u). 
 The Imperial Diet is elected by universal and direct election (x), and its 
 proceedings are public (y). The army and navy of the whole Empire are 
 single forces under the command of the Emperor (z). 
 
 Thus, Germany has now become a compositive State, and the inde- 
 pendence of its various members is merged in the sovereignty of the 
 empire. 
 
 One of the drawbacks to the Germanic Confederation of 1815 was the 
 preservation by each State of its own custom-houses and imposts. This 
 was found to interfere so materially with the development of trade, that 
 the Diet endeavoured to frame some legislative scheme for regulating 
 the whole customs duties of the union, and for abolishing internal 
 custom-houses within its territories. The Diet failed in its attempt, but 
 the idea was gradually carried out by independent action on the part of 
 several of the States. In 1827, Bavaria and Wurtemburg signed a treaty 
 suppressing the custom-houses between themselves, adopting a uniform 
 tariff of duties, and dividing the receipts proportionally (a). This was 
 
 (p} [State Papers, voL Ivii. p. 296. Hertslet, Map of Europe by Treaty, 
 vol. iii. p. 1807]. 
 
 (q) [Hertslet, Map of Europe, vol. iii. p. 1930]. 
 
 (r) [Art. ii. of the Constitution of the German Empire]. 
 
 (s) [Art. v.]. (> [Art. vi.]. (u) [Art. xi.]. 
 
 (a?) [Art. xx.]. (y) [Art. xxii.]. (z) [Arts. liii. and Ixiii.]. 
 
 (a) [Marten's Nouveau Receuil, vol. vii. p. 167. State Papers, vol. xiv. 
 p. 803].
 
 NATIONS AND SOVEREIGN STATES. 7: 
 
 the first treaty of the kind, and was soon followed by two others with the 
 same object, one by Prussia with Anhalt and Hesse Darmstadt, another by 
 Saxony with Hesse-Cassel, Brunswick, Nassau, and some smaller States. 
 The customs association to which Prussia belonged was called the 
 Zollverein, and by the year 1855 the exertions of Prussia had absorbed 
 into this league the whole of Germany, except Austria, the two Meck- 
 lenburg Duchies, Holstein, and the Hanse Towns (6). In 1867, the 
 Zollverein was re-constituted by a treaty which came into force on the 
 1st of January, 1868, and was to continue till the 31st of December, 
 1877. In 1868, the Mecklenburg Duchies and Lubeck joined the league, 
 which, as Austria had then been excluded from the affairs of Germany, 
 embraced all the German Empire except the free towns of Hamburg and 
 Bremen. The constitution of the German Empire of 1871 expressly 
 keeps in force the treaty of July, 1867, and confirms the right of Ham- 
 burg and Bremen to remain as free ports outside the customs frontier, 
 until they apply to be admitted therein (c). 
 
 The constitution of the United States of America is of a ^ f 
 very different nature from that of the Germanic confederation, states of 
 It is not merely a league of sovereign states for their common Amenca - 
 defence against external and internal violence, but a supreme 
 federal government, or composite State, acting not only upon 
 the sovereign members of the union, but directly upon all its 
 citizens in their individual and corporate capacities. It was 
 established, as the constitutional act expressly declares, by 
 " the people of the United States, in order to form a more 
 perfect union, establish justice, ensure domestic tranquillity, 
 provide for the common defence, promote the general welfare, 
 and secure the blessings of liberty to them and their posterity." 
 This constitution, and the laws made in pursuance thereof, and 
 treaties made under the authority of the United States, are de- 
 clared to be the supreme law of the land ; and that the judges 
 in every State shall be bound thereby, anything in the con- 
 stitution or laws of any State to the contrary notwithstanding. 
 
 The legislative power of the Union is vested in a Congress, 53. 
 consisting of a Senate, the members of which are chosen by JjJ^Jf* 
 the local legislatures of the several States, and a House of the Union. 
 Representatives, elected by the people in each State. This 
 Congress has power to levy taxes and duties, to pay the debts, 
 and provide for the common defence and general welfare of 
 the Union ; to borrow money on the credit of the United 
 
 (b) [Calvo, vol. i. 63, p. 166]. 
 
 (c) [Arts. xl. and xxxiv. See Hcrtslet, Map of Europe, vol. iii. pp. 1939, 
 1941. Statesman's Manual, 1877, Tit. Germany].
 
 72 NATIONS AND SOVEREIGN STATES. 
 
 States ; to regulate commerce with foreign nations, among the 
 several States, and with the Indian tribes ; to establish a 
 uniform rule of naturalization, and uniform laws on the sub- 
 ject of bankruptcy throughout the Union ; to coin money, and 
 fix the standard of weights and measures ; to establish post- 
 offices and post-roads ; to secure to authors and inventors the 
 exclusive right to their writings and discoveries ; to punish 
 piracies and felonies on the high seas, and offences against the 
 law of nations ; to declare war, grant letters of marque and 
 reprisal, and regulate captures by sea and land ; to raise and 
 support armies ; to provide and maintain a navy ; to make 
 rules for the government of the land and naval forces ; to 
 exercise exclusive civil and criminal legislation over the dis- 
 trict where the seat of the federal government is established, 
 and over all forts, magazines, arsenals, and dock-yards be- 
 longing to the Union, and to make all laws necessary and 
 proper to carry into execution all these and the other powers 
 vested in the federal government by the Constitution. 
 54. To give effect to this mass of sovereign authorities, the 
 
 B <wer tlT6 executive power is vested in a President of the United States, 
 chosen by electors appointed in each State in such manner as 
 the legislature thereof may direct. The judicial power ex- 
 tends to all cases in law and equity arising under the consti- 
 tution, laws, and treaties of the Union, and is vested in a 
 Supreme Court, and such inferior tribunals as Congress may 
 establish. The federal judiciary exercises under this grant of 
 power the authority to examine the laws passed by Congress 
 and the several State legislatures, and, in cases proper for 
 judicial determination, to decide on the constitutional validity 
 of such laws. The judicial power also extends to all cases 
 affecting ambassadors, other public ministers, and consuls ; to 
 all cases of admiralty and maritime jurisdiction ; to contro- 
 versies to which the United States shall be a party ; to con- 
 troversies between two or more States ; between a State and 
 citizens of another State ; between citizens of different States ; 
 between citizens of the same State claiming lands under 
 grants of different States ; and between a State, or the citizens 
 thereof, and foreign States, citizens, or subjects. 
 
 54a. Mr. Dana considers the language of this clause likely to mislead 
 
 Legislation foreign readers. He denies there being any tribunal which has special 
 in the
 
 NATIONS AND SOVEREIGN STATES. 73 
 
 and direct power to decide questions of constitutional law. The Supreme United 
 Court is the court of final resort, from whose decision there is no appeal ; States, 
 but, like all other courts, it only decides the questions of law that 
 litigants bring before it. The American Constitution is a code of 
 positive law ; and is, moreover, the law having the highest authority 
 in the Union. Acts of Congress do not correspond to English Acts 
 of Parliament. The latter are supreme ; and the only business of an 
 English Court, when an Act comes before it, is to fix upon it the inter- 
 pretation which the legislature is supposed to have intended. In 
 America, a litigant may appeal to the Supreme Court against an Act 
 of Congress, and the Court may declare whether the Act is constitu- 
 tional or not. If the Court pronounces an Act to be unconstitutional, 
 it remains on the statute book, but is inoperative, unless the Court 
 at a subsequent time reverses its own decision (d). 
 
 Story, in his Commentary on the Constitution, says, " In measures 
 exclusively of a political, legislative, or executive character, it is plain 
 that, as the supreme authority as to these questions belongs to the 
 legislative and executive departments, they cannot be re-examined else- 
 Avhere. But where the question is of a different nature, and capable of 
 judicial inquiry and decision, there it admits of a very different con- 
 sideration. It is in such cases that there is a final and common arbiter 
 provided by the Constitution itself, to whose decisions all others are 
 subordinate ; and that arbiter is the supreme judicial authority of the 
 Courts of the Union. No mode is provided by which any superior 
 tribunal can re-examine what the Supreme Court has itself decided " (). 
 
 In 1866 an application was made to the Supreme Court to restrain 
 the President from carrying into effect an Act of Congress alleged to be 
 unconstitutional ; but the Court decided that such a proceeding was not 
 within their jurisdiction (/). 
 
 The treaty-making power is vested exclusively in the Presi- 55 - 
 dent and Senate ; all treaties negotiated with foreign States maSng 
 being subject to their ratification. No State of the Union can P wer - 
 enter into any treaty, alliance, or confederation ; grant letters 
 of marque and reprisal ; coin money ; emit bills of credit ; 
 make any thing but gold and silver coin a tender in the pay- 
 ment -of debts; pass any bill of attainder, ex post facto law, 
 or law impairing the obligation of contracts ; grant any title 
 of nobility ; lay any duties on imports or exports, except such 
 as are necessary to execute its local inspection laws, the pro- 
 duce of which must be paid into the national treasury ; and 
 such laws are subject to the revision and control of Con- 
 gress. Nor can any State, without the consent of Congress, 
 
 (d) [Wheaton, by Dana, note 31, p. 79]. 
 
 (e) [Story on the Constitution of the United States, vol i p 266 
 (4th ed. )]. 
 
 (f) [State of Mississippi v. John-son, 4 Wallace, 475].
 
 74 NATIONS AND SOVEREIGN STATES. 
 
 lay any tonnage duty ; keep troops or ships of war in time of 
 peace ; enter into any agreement or compact with another 
 State or with, a foreign power ; or engage in war unless 
 actually invaded, or in such imminent danger as does not 
 admit of delay. The Union guarantees to every State a re- 
 publican form of government, and engages to protect each of 
 them against invasion, and, on application of the legislature* 
 or of the executive, when the legislature cannot be convened, 
 against domestic violence. 
 
 56. It is not within the province of this work to determine how 
 
 American * ar ^ e interna ^ sovereignty of the respective States coin- 
 Union is a posing the Union is impaired or modified by these consti- 
 federal 6 tutional provisions. But since all those powers, by which the 
 govern- international relations of these States are maintained with 
 foreign States, in peace and in war, are expressly conferred 
 by the constitution on the federal government, whilst the 
 exercise of these powers by the several States is expressly 
 prohibited, it is evident that the external sovereignty of the 
 nation is exclusively vested in the Union. The independence 
 of the respective States, in this respect, is merged in the 
 sovereignty of the federal government, which thus becomes 
 what the German public jurists call a Bundesstaat. 
 5 ?- The Swiss Confederation, as remodelled by the federal pact 
 
 federation, of 1815, consists of a union between the then twenty-two 
 Cantons of Switzerland ; the object of which is declared to be 
 the preservation of their freedom, independence, and security 
 against foreign attack, and of domestic order and tranquillity. 
 The several Cantons guarantee to each other their respective 
 constitutions and territorial possessions. The Confedera- 
 tion has a common army and treasury, supported by levies 
 of men and contributions of money, in certain fixed propor- 
 tions, among the different Cantons. In addition to these 
 contributions, the military expenses of the Confederation are 
 defrayed by duties on the importation of foreign merchandise, 
 collected by the frontier Cantons, according to the tariff estab- 
 lished by the Diet, and paid into the common treasury. The 
 Diet consists of one deputy from every Canton, each having 
 one vote, and assembles every year, alternately, at Berne, 
 Zurich, and Lucerne, which are called the directing Cantons 
 (vorort). The Diet has the exclusive power of declaring war,
 
 NATIONS AND SOVEREIGN STATES. 75 
 
 and concluding treaties of peace, alliance, and commerce, with 
 foreign States. A majority of three-fourths of the votes is 
 essential to the validity of these acts ; for all other purposes, 
 a majority is sufficient. Each Canton may conclude separate 
 military capitulations and treaties, relating to economical 
 matters and objects of police, with foreign powers ; provided 
 they do not contravene the federal pact, nor the constitutional 
 rights of the other Cantons. The Diet provides for the in- 
 ternal and external security of the Confederation ; directs the 
 operations, and appoints the commanders of the federal army, 
 and names the ministers deputed to other foreign States. 
 The direction of affairs, when the Diet is not in session, is 
 confided to the directing Canton (vorort), which is empowered 
 to act during the recess. The character of directing Canton 
 alternates every two years, between Zurich, Berne, and 
 Lucerne. The Diet may delegate to the directing Canton, or 
 vorort, special full powers, under extraordinary circumstances, 
 to be exercised when the Diet is not in session ; adding, when 
 it thinks fit, federal representatives, to assist the vorort in the 
 direction of the affairs of the Confederation. In case of in- 
 ternal or external danger, each Canton has a right to require 
 the aid of the other Cantons ; in which case, notice is to be 
 immediately given to the vorort, in order that the Diet may be 
 assembled, to provide the necessary measures of security (g). 
 
 The compact, by which the sovereign Cantons of Switzer- gg, 
 land are thus united, forms a federal body, which, in some c . onstitu " 
 respects, resembles the Germanic Confederation, whilst in Swiss Con- 
 others it more nearly approximates to the American Constitu- ^^* 10 ^ 
 tion. Each Canton retains its original sovereignty unim- with those 
 paired, for all domestic purposes, even more completely than manic Con- 
 the German States : but the power of making war, and of federation 
 
 , ,. 11. -, and of the 
 
 concluding treaties of peace, alliance, and commerce, with United 
 foreign States, being exclusively vested in the federal Diet, all States - 
 the foreign relations of the country necessarily fall under the 
 cognizance of that body. In this respect, the present Swiss 
 Confederation differs materially from that which existed before 
 the French Revolution of 1789, which was, in effect, a mere 
 treaty of alliance for the common defence against external 
 hostility, but which did not prevent the several Cantons from 
 
 (g) Marten's Nouveau Recueil, torn. viii. p. 173.
 
 76 NATIONS AND SOVEREIGN STATES. 
 
 making separate treaties with each other, and with foreign 
 powers (h). 
 
 59. Since the French Revolution of 1830, various changes have 
 
 attempts, taken place in the local constitutions of the different Cantons, 
 
 since 1830, tending to give them a more democratic character; and several 
 
 the federal attempts have been made to revise the federal pact, so as to 
 
 pact of gj ve ft more o f the character of a supreme federal government, 
 
 or Bundesstaat, in respect to the internal relations of the 
 
 Confederation. Those attempts have all proved abortive ; 
 
 and Switzerland still remains subject to the federal pact of 
 
 1815, except that three of the original Cantons, Basle, 
 
 Unterwalden, and Appenzel, have been dismembered, so as 
 
 to increase the whole number of Cantons to twenty-five. But 
 
 as each division of these three original Cantons is entitled to 
 
 half a vote only in the Diet, the total number of votes still 
 
 remains twenty-two, as under the original federal pact (i). 
 
 c 59 a _ In 1848, the Swiss Constitution was remodelled, but the essential 
 
 Changes in principles of the pact of 1815 were maintained. The Cantons retained 
 the Swiss their sovereignty, except where it was limited by the constitution ; 
 they exercised all rights that were not conferred on the Federal Govern- 
 1848 and ment. All political alliances between the Cantons were forbidden ; but 
 1874. they were entitled to enter into conventions among themselves for 
 
 regulating matters appertaining to legislation, the Administration of 
 Justice, &c., subject to the approval of the Federal authority. The 
 Federal Council represented the Cantons in their relation to foreign 
 States. The rights of declaring war, of making peace, and of entering 
 into treaties were vested, as before, exclusively in the Federal Govern- 
 ment. The supreme authority of the Union was vested in a Federal 
 assembly, consisting of two houses a national council elected directly 
 by the people, and a council of States composed of two deputies from 
 each Canton. The Federal Council was composed of seven persons 
 chosen from all the citizens eligible for the National Council, but no 
 two members of it were to come from the same Canton. They retained 
 their office for three years, and from among them a President was 
 annually to be chosen. This body constituted the executive authority 
 of the Confederation (&). In 1874 the Swiss Constitution was again 
 revised, and some serious changes were made. The power of the 
 Federal Government was greatly strengthened, and the maintenance 
 and control of the army was conferred upon it (I). Switzerland has 
 ceased to be a system of confederated States (Staatenbund), and has 
 become a compositive State (Bundesstaat} (m). 
 
 (h) Merlin, Repertoire, tit. Ministre Public. 
 
 (i) Wheaton, Hist. Law of Nations, pp. 494496. 
 
 (k) [See Calvo, i. 45]. 
 
 (1) [Annual Reg. 1874, p. 288]. 
 
 (m) [Statesman's Year-Uook, 1877, Art. Switzerland].
 
 PART SECOND. 
 
 ABSOLUTE INTERNATIONAL RIGHTS OF STATES. 
 
 CHAPTER I. 
 
 BIGHT OF SELF-PKESERVATION AND INDEPENDENCE. 
 
 THE rights, which sovereign States enjoy with regard to 60. 
 one another, may be divided into rights of two sorts : soverein 
 
 jwimitive, or absolute rights ; conditional, or hypothetical States, 
 
 rights (a). respect to 
 
 one ai 
 ther. 
 
 Every State has certain sovereign rights, to which it is one ano " 
 
 entitled as an independent moral being ; in other words, 
 because it is a State. These rights are called the absolute 
 international rights of States, because they are not limited to 
 particular circumstances. 
 
 The rights to which sovereign States are entitled, under 
 particular circumstances, in their relations with others, may 
 be termed their conditional international rights ; and they 
 cease with the circumstances which gave rise to them. They 
 are consequences of a quality of a sovereign State, but con- 
 sequences which are not permanent, and which are only pro- 
 duced under particular circumstances. Thus war, for example, 
 confers on belligerent or neutral States certain rights, which 
 cease with the existence of the war. 
 
 Of the absolute international rights of States, one of the 61. 
 most essential and important, and that which lies at the Rl ,^ ht of 
 foundation of all the rest, is the right of self-preservation, serration. 
 It is not only a right with respect to other States, but a duty 
 with respect to its own members, and the most solemn and 
 important which the State owes to them. This right neces- 
 sarily involves all other incidental rights, which are essential 
 as means to give effect to the principal end. 
 
 (a) Kliiber, Droit des Gens Modernc dc 1'Europe, 36.
 
 78 
 
 RIGHT OF SELF-PRESERVATION 
 
 62. 
 
 Right of 
 self-defence 
 modified by 
 the equal 
 rights of 
 other 
 States, or 
 by treaty. 
 
 Among these is the right of self-defence. This again 
 involves the right to require the military service of all its 
 people, to levy troops and maintain a naval force, to build 
 fortifications, and to impose and collect taxes for all these 
 purposes. It is evident that the exercise of these absolute 
 sovereign rights can be controlled only by the equal corre- 
 spondent rights of other States, or by special compacts freely 
 entered into with others, to modify the exercise of these 
 rights. 
 
 In the exercise of these means of defence, no independent 
 State can be restricted by any foreign power. But another 
 nation may, by virtue of its own right of self-preservation, if 
 it sees in these preparations an occasion for alarm, or if it 
 anticipates any possible danger of aggression, demand ex- 
 planations ; and good faith, as well as sound policy, requires 
 that these inquiries, when they are reasonable and made with 
 good intentions, should be satisfactorily answered. 
 
 Thus, the absolute right to erect fortifications within the 
 territory of the State has sometimes been modified by trea- 
 ties, where the erection of such fortifications has been deemed 
 to threaten the safety of other communities, or where such a 
 concession has been extorted in the pride of victory, by a 
 power strong enough to dictate the conditions of peace to its 
 enemy. Thus, by the Treaty of Utrecht, between Great 
 Britain and France, confirmed by that of Aix-la-Chapelle, 
 in 1748, and of Paris, in 1763, the French government en- 
 gaged t3 demolish the fortifications of Dunkirk. This stipu- 
 lation, so humiliating to France, was effaced in the treaty 
 of peace concluded between the two countries, in 1783, after 
 the war of the American Revolution. By the treaty signed 
 at Paris, in 1815, between the Allied Powers and France, it 
 was stipulated that the fortifications of Huningen, within the 
 French territory, which had been constantly a subject of un- 
 easiness to the city of Basle, in the Helvetic Confederation, 
 should be demolished, and should never be renewed or re- 
 placed by other fortifications, at a distance of not less than 
 three leagues from the city of Basle (6). 
 
 8 62a. After the separation of Belgium and Holland in 1830 the Powers 
 
 Belgian agreed that as the neutrality of Belgium had been guaranteed, she ought 
 fortresses. ^ Marten's Recueil des Traites, torn. ii. p. 469.
 
 AND INDEPENDENCE. 79 
 
 to change the system of military defence which had been adopted for the 
 Kingdom of the Netherlands, and therefore a negotiation was set on foot 
 for the purpose of selecting which of the Belgian fortresses should be 
 demolished (c). In 1856 Russia agreed that the Aland Islands in the The Aland 
 Baltic should not be fortified, and that no military or naval establish- ^ lauds - 
 nient should be maintained there (d). Russia and Turkey also agreed at 
 the Peace of Paris, 1856, not to maintain any military -maritime arsenals 
 on the coasts of the Black Sea, but this clause of the treaty was abrogated 
 in 1871 (e). 
 
 & fi"? 
 
 The right of every independent State to increase its national j^t O 'f 
 dominions, wealth, population, and power, hy all innocent and "iterven- 
 
 ^ . tion or in- 
 
 lawful means ; such as the pacific acquisition of new territory, terference. 
 
 the discovery and settlement of new countries, the extension 
 of its navigation and fisheries, the improvement of its 
 revenues, arts, agriculture, and commerce, the increase of its 
 military and naval force ; is an incontrovertible right of 
 sovereignty, generally recognized hy the usage and opinion 
 of nations. It can he limited in its exercise only by the equal 
 correspondent rights of other States, growing out of the same 
 primeval right of self-preservation. Where the exercise of 
 this right, by any of these means, directly affects the security 
 of others, as where it immediately interferes with the actual 
 exercise of the sovereign rights of other States, there is no 
 difficulty in assigning its precise limits. But where it merely 
 involves a supposed contingent danger to the safety of others, 
 arising out of the undue aggrandisement of a particular State, 
 or the disturbance of what has been called the balance of power, 
 questions of the greatest difficulty arise, which belong rather 
 to the science of politics than of public law. 
 
 The occasions on which the right of forcible interference 
 has been exercised in order to prevent the undue aggrandise- 
 ment of a particular State, by such innocent and lawful means 
 as those above mentioned, are comparatively few, and cannot 
 be justified in any case, except in that where an excessive 
 augmentation of its military and naval forces may give just 
 ground of alarm to its neighbours. The internal develop- 
 ment of the resources of a country, or its acquisition of 
 colonies and dependencies at a distance from Europe, has 
 
 (c) [Protocol of 17th April, 1831. See Hertslet, Map of Europe, vol. ii. 
 p. 8561 
 
 (d) [See Ibid., vol. ii. p. 1272]. 
 
 (e) [Art. xiii. See Ibid., vol. ii. p. 1256; vol. iii. p. 1920].
 
 80 RIGHT OF SELF-PRESERVATION 
 
 never been considered a just motive for such interference. It 
 seems to be felt with respect to the latter, that distant colonies 
 and dependencies generally weaken, and always render more 
 vulnerable the metropolitan State. And with respect to the 
 former, although the wealth and population of a country is the 
 most effectual means by which its power can be augmented, 
 such an augmentation is too gradual to excite alarm. To 
 which it must be added that the injustice and mischief of 
 admitting that nations have a right to use force for the 
 express purpose of retarding the civilization and diminishing 
 the prosperity of their inoffensive neighbours, are too re- 
 volting to allow such a right to be inserted in the inter- 
 national code. Interferences, therefore, to preserve the 
 balance of power, have been generally confined to prevent a 
 sovereign, already powerful, from incorporating conquered 
 provinces into his territory, or increasing his dominions by 
 marriage or inheritance, or exercising a dictatorial influence 
 over the councils and conduct of other independent States (/). 
 
 63 a. Sir W. Harcourt says of intervention : " It is a high and summary 
 
 Legal procedure which may sometimes snatch a remedy beyond the reach of law. 
 
 aspect of Nevertheless it must be admitted that in the case of intervention, as in that 
 lion* 11 " of revolution, its essence is illegality, and its justification is its success. Of 
 all things at once the most unjustifiable and the most impolitic is an un- 
 successful intervention" (g). Chateaubriand, in a celebrated speech in the 
 French Chamber, asserted that " no government has a right to interfere in 
 the affairs of another government, except in the case where the security 
 and immediate interests of the first government are compromised " (K). It 
 seems impossible to lay down any distinct rules with regard to interven- 
 tion. As stated in the text, the subject belongs to politics rather than to 
 public law. It cannot be distinctly stated what combination of circum- 
 stances menaces the security of any State, or tends to disturb the balance 
 of power, and what does not. Statesmen must be guided by the know- 
 ledge they possess of the intentions of other countries, and by what they 
 deem necessary for the security of their own, and in the present condition 
 of Europe there seems little probability of any rules regarding interven- 
 tion being attended to, even if they could be satisfactorily drawn up. 
 
 Each member of the great society of nations being entirely 
 independent of every other, and living in what has been 
 
 (/) Senior, Edinb. Rev. No. 156, art. 1, p. 329. 
 
 (g) [Letters of Historicus, p. 41]. 
 
 (h) [See Halleck, p. 86; Alison, Hist, of Europe, ch. 12, 41; Moniteur, 
 15th Feb. 1823 ; Manning, Law of Nations, p. 98 ; Amari, Nouvel expose du 
 principe de non-intervention; Revue de Droit Int. 1873, p. 352].
 
 AND INDEPENDENCE. 81 
 
 called a state of nature in respect to others, acknow- 
 ledging no common sovereign, arbiter, or judge; the law 
 which prevails between nations being deficient in those ex- 
 ternal sanctions by which the laws of civil society are 
 enforced among individuals; and the performance of the 
 duties of international law being compelled by moral sanctions 
 only, by fear on the part of nations of provoking general 
 hostility, and incurring its probable evils in case they should 
 violate this law ; an apprehension of the possible consequences 
 of the undue aggrandisement of any one nation upon the inde- 
 pendence and the safety of others, has induced the States of 
 modern Europe to observe, with systematic vigilance, every 
 material disturbance in the equilibrium of their respective 
 forces. This preventive policy has been the pretext of the 
 most bloody and destructive wars waged in modern tunes, 
 some of which have certainly originated in well-founded appre- 
 hensions of peril to the independence of weaker States, but the 
 greater part have been founded upon insufficient reasons, dis- 
 guising the real motives by which princes and cabinets have 
 been influenced. Wherever the spirit of encroachment has 
 really threatened the general security, it has commonly broken 
 out in such overt acts as not only plainly indicated the ambi- 
 tious purpose, but also furnished substantive grounds in them- 
 selves sufficient to justify a resort to arms by other nations. 
 Such were the grounds of the confederacies created, and the Wars of 
 wars undertaken to check the aggrandisement of Spain and 
 the house of Austria, under Charles V. and his successors ; 
 an object finally accomplished by the treaty of Westphalia, 
 which so long constituted the written public law of Europe. 
 The long and violent struggle between the religious parties 
 engendered by the Reformation in Germany, spread through- 
 out Europe, and became closely connected with political 
 interests and ambition. The great Catholic and Protestant 
 powers mutually protected the adherents of their own faith in 
 the bosom of rival States. The repeated interference of 
 Austria and Spain in favour of the Catholic faction in France, 
 Germany, and England, and of the Protestant powers to 
 protect their persecuted brethren in Germany, France, and 
 the Netherlands, gave a peculiar colouring to the political 
 transactions of the age. This was still more heightened by
 
 82 EIGHT OF SELF-PRESERVATION 
 
 the conduct of Catholic France under the ministry of Car- 
 dinal Richelieu, in sustaining, by a singular refinement of 
 policy, the Protestant princes and people of Germany against 
 the house of Austria, while she was persecuting with unre- 
 lenting severity her own subjects of the reformed faith. The 
 balance of power adjusted by the peace of Westphalia was 
 once more disturbed by the ambition of Louis XIV., which 
 compelled the Protestant States of Europe to unite with the 
 house of Austria against the encroachments of France herself, 
 and induced the allies to patronise the English Revolution of 
 1688, whilst the French monarch interfered to support the 
 pretensions of the Stuarts. These great transactions fur- 
 nished numerous examples of interference by the European 
 States in the affairs of each other, where the interest and 
 security of the interfering powers were supposed to be se- 
 riously affected by the domestic transactions of other nations, 
 which can hardly be referred to any fixed and definite principle 
 or international law, or furnish a general rule fit to be observed 
 in other apparently analogous cases (i). 
 
 64. The same remarks will apply to the more recent, but not 
 
 Frencbf * te ^ ess mi P or tant events growing out of the French Revolution. 
 Revolu- They furnish a strong admonition against attempting to 
 reduce to a rule, and to incorporate into the code of nations, 
 a principle so indefinite and so peculiarly liable to abuse, in 
 its practical application. The successive coalitions formed by 
 the great European monarchies against France subsequent to 
 her first revolution of 1789, were avowedly designed to check 
 the progress of her revolutionary principles and the extension 
 of her military power. Such was the principle of inter- 
 vention in the internal affairs of France, avowed by the 
 Allied Courts, and by the publicists who sustained their cause. 
 France, on her side, relying on the independence of nations, 
 Alliance contended for non-intervention as a right. The efforts of 
 great^Euro- these coalitions ultimately resulted in the formation of an 
 pean pow- alliance, intended to be permanent, between the four great 
 powers of Russia, Austria, Prussia, and Great Britain, to 
 which France subsequently acceded, at the Congress of Aix- 
 la-Chapelle, in 1818, constituting a sort of superintending 
 authority in these powers over the international affairs of 
 
 (i) Wheaton, Hist. Law of Nations, Ft. I. 2, 3, pp. 8088.
 
 AND INDEPENDENCE. 83 
 
 Europe, the precise extent and objects of which were never 
 very accurately defined. As interpreted by those of the con- 
 tracting powers, who were also the original parties to the 
 compact called the Holy Alliance, this union was intended to 
 form a perpetual system of intervention among the European 
 States, adapted to prevent any such change in the internal 
 forms of their respective governments, as might endanger the 
 existence of the monarchical institutions which had been re- 
 establised under the legitimate dynasties of their respective 
 reigning houses. This general right of interference was 
 sometimes defined so as to be applicable to every case of 
 popular revolution, where the change in the form of govern- 
 ment did not proceed from the voluntary concession of the 
 reigning sovereign, or was not confirmed by his sanction, 
 given under such circumstances as to remove all doubt of his 
 having freely consented. At others, it was extended to every 
 revolutionary movement pronounced by these powers to en- 
 danger, in its consequences, immediate or remote, the social 
 order of Europe, or the particular safety of neighbouring 
 States. 
 
 The events which followed the Congress of Aix-la-Chapelle 
 prove the inefficacy of all the attempts that have been made 
 to establish a general and invariable principle on the subject 
 of intervention. It is, in fact, impossible to lay down an 
 absolute rule on this subject ; and every rule that wants 
 that quality must necessarily be vague, and subject to the 
 abuses to which human passions will give rise, in its prac- 
 tical application. 
 
 The writer of a recent article in the Edinburgh Review," after giving a 64a 
 clear and concise historical account of the influence exercised by the The balance 
 theory of the balance of power in Europe during the lastjour centuries, of P w er. 
 states the principle to be as follows : " It is the duty of the members of 
 the European Commonwealth to act together, and not independently in 
 their mutual relations ; and that all should take concerted action against 
 any aggressive member of the Commonwealth ; not shrinking from self- 
 sacrifice, still less proclaiming the craven doctrine that the affairs of its 
 neighbours are no concern of any State." " To prevent aggression and the 
 conquest of the weaker powers by means of alliances, ' remonstrances, 
 conferences, arbitration, if possible, but, in the last resort, war, is the 
 duty incumbent on the European family of nations ; to interfere with 
 each other's internal affairs is to strike at the root of their common
 
 84 RIGHT OF SELF-PRESERVATION 
 
 brotherhood " (&). The principle of the balance of power has of late been 
 much criticised, and called in question. An eminent Statesman has 
 gone so far as to characterize it as " that tradition which has been the 
 pest of Europe " (I). Yet, though it is impossible, as stated in the text, 
 to lay down an absolute rule on this subject, there seems little doubt that 
 the members of the European community, while it exists in its present 
 Btate, must always keep up some sort of balance among themselves. As 
 long as governments are actuated by ambition and the desire of aggran- 
 disement, a great increase in the power of any one State so actuated, 
 must be dangerous to the rest of the community, unless this is counter- 
 balance by a corresponding increase of power, either in some other State, 
 or in some coalition of two or more States. This is all that the balance 
 of power means. It does not mean that all European nations are to 
 combine to maintain the actual status quo, but it does mean that they are 
 to keep a watchful eye on each other to prevent any one acquiring such 
 preponderating power as will enable it to obtain an overwhelming influ- 
 ence over the rest, and to threaten their liberty and independence (m). 
 
 65. The measures adopted by Austria, Russia, and Prussia, at 
 
 Congress of fa e Congress of Troppau and Laybach, in respect to the 
 and of Lay- Neapolitan Revolution of 1820, were founded upon principles 
 adapted to give the great powers of the European continent a 
 perpetual pretext for interfering in the internal concerns of its 
 different States. The British government expressly dissented 
 from these principles, not only upon the ground of their being, 
 if reciprocally acted on, contrary to the fundamental laws of 
 Great Britain, but such as could not safely be admitted as 
 part of a system of international law. In the circular de- 
 gpatch, addressed on this occasion to all its diplomatic agents, 
 it was stated that, though no government could be more pre- 
 pared than the British government was to uphold the right of 
 any State or States to interfere, where their own immediate 
 security or essential interests are seriously endangered by the 
 internal transactions of another State, it regarded the assump- 
 tion of such a right as only to be justified by the strongest 
 necessity, and to be limited and regulated thereby ; and did 
 not admit that it could receive a general and indiscriminate 
 application to all revolutionary movements, without reference 
 to their immediate bearing upon some particular State or 
 
 (k) [Edinburgh Review, No. 286, April, 1877, p. 546]. 
 
 (I) [Mr. Lowe's speech at Croydon, Times, Sept. 13, 1876]. 
 
 (m) [Bluntschli, Le Droit International Coding (Paris, 1870), p. 95 ; Pra- 
 dier FoderS; Principes G&ie"raux du Droit, &c.; Woolsey, Introduction to Int. 
 Law, p. 61 (2nd ed.); Phillimore, vol. i. pp. 473510].
 
 AND INDEPENDENCE. 85 
 
 States, or that it could be made, prospectively, the basis of an 
 alliance. The British government regarded its exercise as 
 an exception to general principles of the greatest value and 
 importance, and as one that only properly grows out of the 
 special circumstances of the case ; but it at the same time 
 considered, that exceptions of this description never can, 
 without the utmost danger, be so far reduced to rule, as to be 
 incorporated into the ordinary diplomacy of States, or into the 
 institutes of the Law of Nations (n). 
 
 The British government also declined being a party to the 66. 
 proceedings of the Congress held at Verona, in 1822, which Verona!* 
 ultimately led to an armed interference by France, under the 
 sanction of Austria, Russia, and Prussia, in the internal 
 affairs of Spain, and the overthrow of the Spanish Constitu- 
 tion of the Cortes. The British government disclaimed for 
 itself, and denied to other powers, the right of requiring any 
 changes in the internal institutions of independent States, 
 with the menace of hostile attack in case of refusal. It did 
 not consider the Spanish Revolution as affording a case of 
 that direct and imminent danger to the safety and interests 
 of other States, which might justify a forcible interference. 
 The original alliance between Great Britain and the other 
 principal European powers, was specifically designed for the 
 re-conquest and liberation of the European continent from 
 the military dominion of France ; and having subverted that 
 dominion, it took the state of possession, as established by 
 the peace, under the joint protection of the alliance. It never 
 was, however, intended as an union for the government of the 
 world, or for the superintendence of the internal affairs of other 
 States. No proof had been produced to the British govern- 
 ment of any design, on the part of Spain, to invade the 
 territory of France ; of any attempt to introduce disaffection 
 among her soldiery ; or of any project to undermine her 
 political institutions ; and, so long as the struggles and dis- 
 turbances of Spain should be confined within the circle of her 
 own, territory, they could not be admitted by the British 
 government to afford any plea for foreign interference. If the 
 end of the last and the beginning of the present century saw 
 
 (n) Lord Castlereagh's Circular Dispatch, Jan. 19, 1821. Annual Register, 
 vol. bui. Part II. p. 737.
 
 86 EIGHT OF SELF-PRESERVATION 
 
 all Europe combined against France, it was not on account of 
 the internal changes which France thought necessary for her 
 own political and civil reformation ; but because she attempted 
 to propagate, first, her principles, and afterwards her do- 
 minion, by the sword (o). 
 
 67. Both Great Britain and the United States, on the same 
 
 tleen 6 " occasion, protested against the right of the Allied Powers to 
 Spain and interfere, by forcible means, in the contest between Spain and 
 can cob-"" ner revolted American Colonies. The British government 
 nies - declared its determination to remain strictly neutral, should 
 
 the war be unhappily prolonged ; but that the junction of any 
 foreign power, in an enterprise of Spain against the colonies, 
 would be viewed by it as constituting an entirely new ques- 
 tion, and one upon which it must take such decision as the 
 interests of Great Britain might require. That it could not 
 enter into any stipulation, binding itself either to refuse or 
 delay its recognition of the independence of the colonies, nor 
 wait indefinitely for an accommodation between Spain and the 
 colonies ; and that it would consider any foreign interference, 
 by force or by menace, in the dispute between them, as a 
 motive for recognizing the latter without delay (p). 
 
 The United States government declared that it should con- 
 sider any attempt, on the part of the allied European powers, 
 to extend their peculiar political system to the American con- 
 tinent, as dangerous to the peace and safety of the United 
 States. With the existing colonies or dependencies of any 
 European power they had not interfered, and should not 
 interfere ; but with respect to the governments, whose inde- 
 pendence they had recognized, they could not view any inter- 
 position for the purpose of oppressing them, or controlling in 
 any other manner their destiny, in any other light than as a 
 manifestation of an unfriendly disposition towards the United 
 States. They had declared their neutrality in the war between 
 Spain and those new governments, at the time of their recog- 
 nition ; and to this neutrality they should continue to adhere, 
 
 (o) Confidential Minute of Lord Castlereagh on the Affairs of Spain, com- 
 municated to the Allied Courts in May, 1823. Annual Register, vol. Ixv. ; 
 Public Documents, p. 94. Mr. Secretary Canning's Letter to Sir C. Stuart, 
 28th Jan. 1823, p. 114. Same to the Same, 31st March, 1823, p. 141. 
 
 ( p) Memorandum of Conference between Mr. Secretary Canning and Prince 
 Polignac, 9th October, 1823. Annual Register, vol. Ixvi. p. 99. Public 
 Documents.
 
 AND INDEPENDENCE. 87 
 
 provided no change should occur, which, in their judgment, 
 should make a correspondent change, on the part of the 
 United States, indispensable to their own security. The late 
 events in Spain and Portugal showed that Europe was still 
 unsettled. Of this important fact no stronger proof could be 
 adduced than that the Allied Powers should have thought it 
 proper, on any principle satisfactory to themselves, to have 
 interposed by force in the internal concerns of Spain. To 
 what extent such interpositions might be carried, on the same 
 principle, was a question on which all independent powers, 
 whose governments differed from theirs, were interested, 
 even those most remote, and none more so than the United 
 States. 
 
 The policy of the American government, in regard to 
 Europe, adopted at an early stage of the war which had 
 so long agitated that quarter of the globe, nevertheless re- 
 mained the same. This policy was, not to interfere in the 
 internal concerns of any of the European powers ; to consider 
 the government, de facto, as the legitimate government for 
 them ; to cultivate friendly relations with it, and to preserve 
 those relations by a frank, firm, and manly policy ; meeting, 
 in all instances, the just claims of every power, submitting 
 to injuries from none. But, with regard to the American 
 continents, circumstances were widely different. It was im- 
 possible that the Allied Powers should extend their political 
 system to any portion of these continents, without en- 
 dangering the peace and happiness of the United States. It 
 was therefore impossible that the latter should behold such 
 interposition in any form with indifference (q). 
 
 This policy of the United States has acquired the name of " the 67a. 
 Monroe doctrine," from its having received its most explicit enunciation The 
 in President Monroe's seventh annual message to Congress in 1823. " In 
 the wars of the European powers," said the President, "in matters 
 relating to themselves we have never taken any part, nor does it comport 
 with our policy to do so. It is only when our rights are invaded or 
 seriously menaced, that we resent injuries or make preparations for our 
 defence. With the movements in this hemisphere we are of necessity 
 more intimately connected, and by causes which must be obvious to all 
 enlightened and impartial observers. The political system of the allied 
 
 (q) President Monroe's Message to Congress, 2nd December, 1823. Annual 
 Register, vol. Ixv. Public iJocuments, p. 193.
 
 88 EIGHT OF SELF- PRESERVATION 
 
 powers is essentially different in this respect from that of America. This 
 difference proceeds from that which exists in their respective govern- 
 ments We owe it, therefore, to candour and to the amicable 
 
 relations existing between the United States and those powers to declare 
 that we should consider any attempt on their part to extend their system 
 to any portion of this hemisphere, as dangerous to our peace and 
 safety " (r). This political formula has been to a great extent acted upon 
 by the United States, especially with regard to their taking no part in 
 European politics. Nevertheless it still exists only as a " doctrine," and 
 has not been incorporated into any legislative enactment or into any 
 convention (s). 
 
 68. Great Britain had limited herself to protesting against the 
 
 B rf ti r h n in " * nterference f tne French government in the internal affairs 
 in the af- of Spain, and had refrained from interposing by force, to pre- 
 itortu4l in ven ^ ^ e i nvas i n f the peninsula by France. The constitu- 
 1826. . tion of the Cortes was overturned, and Ferdinand VII. re- 
 stored to absolute power. These events were followed by the 
 death of John VI., King of Portugal, in 1825. The constitu- 
 tion of Brazil had provided that its crown should never be 
 united on the same head with that of Portugal ; and Dom 
 Pedro resigned the latter to his infant daughter, Dona Maria, 
 appointing a regency to govern the kingdom during her mi- 
 nority, and at the same time, granting a constitutional charter 
 to the European dominions of the House of Braganza. The 
 Spanish government, restored to the plenitude of its absolute 
 authority, and dreading the example of the peaceable estab- 
 lishment of a constitutional government in a neighbouring 
 kingdom, countenanced the pretensions of Dom Miguel to the 
 Portuguese crown, and supported the efforts of his partisans 
 to overthrow the regency and the charter. Hostile inroads 
 into the territory of Portugal were concerted in Spain, and 
 executed with the connivance of the Spanish authorities, by 
 Portuguese troops, belonging to the party of the Pretender, 
 who had deserted into Spain, and were received and succoured 
 by the Spanish authorities on the frontiers. Under these 
 circumstances, the British government received an application 
 from the regency of Portugal, claiming, in virtue of the 
 ancient treaties of alliance and friendship subsisting between 
 the two crowns, the military aid of Great Britain against the 
 
 (r) [President's Annual Message to Congress, 2nd Dec. 1823. See States- 
 man's Manual, vol. i. p. 556. Calvo, Droit International, vol. i. 98J. 
 (s) [Calvo, i. 101].
 
 AND INDEPENDENCE. 89 
 
 hostile aggression of Spain. In acceding to that application, 
 and sending a corps of British troops for the defence of 
 Portugal, it was stated by the British minister that the Por- 
 tuguese Constitution was admitted to have proceeded from a 
 legitimate source, and it was recommended to Englishmen by 
 the ready acceptance which it had met with from all orders of 
 the Portuguese people. But it would not be for the British 
 nation to force it on the people of Portugal, if they were 
 unwilling to receive it ; or if any schism should exist among 
 the Portuguese themselves, as to its fitness and congeniality 
 to the wants and wishes of the nation. They went to Por- 
 tugal in the discharge of a sacred obligation, contracted under 
 ancient and modern treaties. When there, nothing would be 
 done by them to enforce the establishment of the constitution ; 
 but they must take care that nothing was done by others to 
 prevent it from being fairly carried into effect. The hostile 
 aggression of Spain, 'in countenancing and aiding the party 
 opposed to the Portuguese Constitution, was in direct viola- 
 tion of repeated solemn assurances of the Spanish cabinet to 
 the British government, engaging to abstain from such inter- 
 ference. The sole object of Great Britain was to obtain the 
 faithful execution of those engagements. The former case 
 of the invasion of Spain by France, having for its object to 
 overturn the Spanish Constitution, was essentially different in 
 its circumstances. France had given to Great Britain cause 
 of war, by that aggression upon the independence of Spain. 
 The British government might lawfully have interfered, on 
 grounds of political expediency ; but they were not bound to 
 interfere, as they were now bound to interfere on behalf of 
 Portugal, by the obligations of treaty. War might have been 
 their free choice, if they had deemed it politic, in the case of 
 Spain ; interference on behalf of Portugal was their duty, 
 unless they were prepared to abandon the principles of 
 national faith and national honour (). 
 
 The interference of the Christian powers of Europe, in 69. 
 favour of the Greeks, who, after enduring ages of cruel op- Inierfo ; 
 
 r rence of 
 
 pression, had shaken off the Ottoman yoke, affords a further the Ciu-ist- 
 illustration of the principles of international law authorizing 
 
 (I) Mr. Canning's Speech in the House of Commons, llth December, 1826. 
 Annual Register, vol. Ixviii. p. 192.
 
 90 RIGHT OF SELF-PRESERVATION 
 
 an i nter ^ erence not 011 ^J where the interests and safety 
 of other powers are immediately affected by the internal trans- 
 actions of a particular State, hut where the general interests 
 of humanity are infringed by the excesses of a barbarous and 
 despotic government. These principles are fully recognized 
 in the treaty for the pacification of Greece, concluded at Lon- 
 don, on the 6th of July, 1827, between France, Great Britain, 
 and Russia. The preamble of this treaty sets forth, that the 
 three contracting parties were " penetrated with the necessity 
 of putting an end to the sanguinary contest, which, by de- 
 livering up the Greek provinces and the isles of the Archi- 
 pelago to all the disorders of anarchy, produces daily fresh 
 impediments to the commerce of the European States, and 
 gives occasion to piracies, which not only expose the subjects 
 of the high contracting parties to considerable losses, but, 
 besides, render necessary burdensome measures of protection 
 and repression." It then states that the British and French 
 governments, having received a pressing request from the 
 Greeks to interpose their mediation with the Porte, and being, 
 as well as the Emperor of Russia, animated by the desire of 
 stopping the effusion of blood, and of arresting the evils of all 
 kinds which might arise from the continuance of such a state 
 of things, had resolved to unite their efforts, and to regulate 
 the operations thereof by a formal treaty, with the view of re- 
 establishing peace between the contending parties, by means 
 of an arrangement, which was called for as much by humanity 
 as by the interest of the repose of Europe. The treaty then 
 provides, (art. 1,) that the three contracting powers should 
 offer their mediation to the Porte, by a joint declaration of 
 their ambassadors at Constantinople ; and that there should 
 be made, at the same time, to the two contending parties, the 
 demand of an immediate armistice, as a preliminary condition 
 indispensable to opening any negotiation. Article 2nd pro- 
 vides the terms of the arrangement to be made, as to the civil 
 and political condition of Greece, in consequence of the prin- 
 ciples of a previous understanding between Great Britain and 
 Russia. By the 3rd article it was agreed, that the details of 
 this arrangement, and the limits of the territory to be included 
 under it, should be settled in a separate negotiation between 
 the high contracting powers and the two contending parties.
 
 AND INDEPENDENCE. 91 
 
 To this public treaty an additional and secret article was added, 
 stipulating that the high contracting parties would take imme- 
 diate measures for establishing commercial relations with the 
 Greeks, by sending to them and receiving from them consular 
 agents, so long as there should exist among them authorities 
 capable of maintaining such relations. That if, within the 
 term of one month, the Porte did not accept the proposed 
 armistice, or if the Greeks refused to execute it, the high con- 
 tracting parties should declare to that one of the two con- 
 tending parties that should wish to continue hostilities, or to 
 both, if it should become necessary, that the contracting 
 powers intended to exert all the means, which circumstances 
 might suggest to their prudence, to give immediate effect to 
 the armistice, by preventing, as far as might be in their 
 power, all collision between the contending parties. The 
 secret article concluded by declaring, that if these measures 
 did not suffice to induce the Ottoman Porte to adopt the pro- 
 positions made by the high contracting powers, or if, on the 
 other hand, the (Greeks should renounce the conditions stipu- 
 lated in their favour, the contracting parties would neverthe- 
 less continue to prosecute the work of pacification on the basis 
 agreed upon between them ; and, in consequence, they autho- 
 rised, from that time forward, their representatives in London 
 to discuss and determine the ulterior measures to which it 
 might become necessary to resort. 
 
 The Greeks accepted the proffered mediation of the three 
 powers, which the Turks rejected, and instructions were given 
 to the commanders of the allied squadrons to compel the ces- 
 sation of hostilities. This was effected by the result of the 
 battle of Navarino, with the occupation of the Morea by French 
 troops ; and the independence of the Greek State was ulti- 
 mately recognised by the Ottoman Porte, under the mediation 
 of the contracting powers. If, as some writers have supposed, 
 the Turks belong to a family or set of nations which is not 
 bound by the general international law of Christendom, they 
 have still no right to complain of the measures which the 
 Christian powers thought proper to adopt for the .protection of 
 their religious brethren, oppressed by the Mohammedan rule. 
 In a ruder age, the nations of Europe, impelled by a generous 
 and enthusiastic feeling of sympathy, inundated the plains of
 
 92 RIGHT OF SELF-PRESERVATION 
 
 Asia to recover the Holy Sepulchre" from the possession of 
 infidels, and to deliver the Christian pilgrims from the merci- 
 less oppressions practised by the Saracens. The Protestant 
 princes and States of Europe, during the sixteenth and seven- 
 teenth centuries, did not scruple to confederate and wage war, 
 in order to secure the freedom of religious worship for the 
 votaries of their faith in the bosom of Catholic communities, 
 to whose subjects it was denied. Still more justifiable was 
 the interference of the Christian powers of Europe to rescue 
 a whole nation, not merely from religious persecution, but 
 from the cruel alternative of being transported from their 
 native land, or exterminated by their merciless oppressors. 
 The rights of human nature wantonly outraged by this cruel 
 warfare, prosecuted for six years against a civilised and 
 Christian people, to whose ancestors mankind are are so largely 
 indebted for the blessings of arts and of letters, were but 
 tardily and imperfectly vindicated by this measure. " What- 
 ever," as Sir James Mackintosh said, " a nation may lawfully 
 defend for itself, it may defend for another people, if called 
 upon to interpose." The interference of the Christian powers, 
 to put an end to this bloody contest might, therefore, have 
 been safely rested upon this ground alone, without appealing 
 to the interests of commerce and of the repose of Europe, 
 which, as well as the interests of humanity, are alluded to in 
 the treaty, as the determining motives of the high contracting 
 parties (u). 
 
 70. We have already seen, that the relations which have pre- 
 
 Interfer- va il e d between the Ottoman Empire and the other European 
 Austria, States have only recently brought the former within the pale 
 
 that P u kli. c 1 &W by which the latter are governed, and 
 and RUB- which was originally founded on that community of manners, 
 internal 16 institutions, and religion, which distinguish the nations of 
 affairs of Christendom from those of the Mohammedan world (#). 
 
 (u) Another treaty was concluded at London, between the same three powers, 
 on the 7th of May, 1832, by which the election of Prince Otho of Bavaria, as 
 King of Greece, was confirmed, and the sovereignty and independence of the 
 new kingdom guaranteed by the contracting parties, according to the terms 
 of the protocol signed by them on the 3rd of February, 1830, and accepted by 
 Greece and the Ottoman Porte. [King Otho was expelled in 1862, and, after 
 some difficulty in finding any one to fill his place, Prince George of Denmark 
 mounted the Greek throne and took the title of King of the Hellenes in March, 
 1863. See Statesman's Year Book, 1877, tit. Greece]. 
 i (x) Vide supra, Part I. ch. i. 13.
 
 AND INDEPENDENCE. 93 
 
 Yet the integrity and independence of that empire have been 
 considered essential to the general balance of power, ever pire, iu 
 since the crescent ceased to be an object of dread to the u ' 
 western nations of Europe. The above-mentioned inter- 
 ference of three of the great Christian powers in the affairs 
 of Greece had been complicated, by the separate war be- 
 tween Eussia and the Ottoman Empire, which was termi- 
 nated by the Treaty of Adrianople? in 1829, followed by the 
 treaty of alliance between the two empires, of Unkiar-Skelessi, 
 in 1833. The casus foederis of the latter treaty was brought 
 on by the attempts of Mehemet Ali, Pasha of Egypt, to assert 
 his independence, and of the Porte, which sought to recover 
 its lost provinces. The status quo, which had been esta- 
 blished between the Sultan and his vassal by the arrangement 
 of Kutayah, in 1833, under the mediation of France and 
 Great Britain, on which the peace of the Levant depended, 
 and with it the peace of Europe was supposed to depend, was 
 thus constantly threatened by the irreconcilable pretensions of 
 the two great divisions of the Ottoman Empire. The war 
 again broke out between them in 1839, and the Turkish army 
 was overthrown in the decisive battle of Nezib, which was 
 followed by the desertion of the fleet to Mehemet Ali, and by 
 the death of Sultan Mahmoud II. 
 
 In this state of things, the western powers of Europe 
 thought they perceived the necessity of interfering to save 
 the Ottoman Empire from the double danger with which it 
 was threatened ; by the aggressions of the Pasha of Egypt on 
 one side, and the exclusive protectorate of Kussia on the 
 other. A long and intricate negotiation ensued between the 
 five great European powers, from the voluminous docu- 
 ments relating to which the following general principles may 
 be collected, as having received the formal assent of all 
 the parties to the negotiations, however divergent might 
 be their respective views as to the application of those 
 principles. 
 
 1. The right of the five great European powers to inter- 
 fere in this contest was placed upon the ground of its 
 threatening, in its consequences, the general balance of power 
 and the peace of Europe. The only difference of opinion 
 arose as to the means by which the desirable end of preventing
 
 94 RIGHT OF SELF-PRESERVATION 
 
 all future conflict between the two contending parties could 
 best be accomplished. 
 
 2. It was agreed that this interference could only take place 
 on the formal application of the Sultan himself, according to 
 the rule laid down by the Congress of Aix-la-Chapelle, in 
 1818, that the five great powers would never assume juris- 
 diction over questions concerning the rights and interests 
 of another power, except at its request, and without inviting 
 such power to take part in the conference. 
 
 8. The death of Sultan Mahmoud being imminent, and 
 the dangers of the Ottoman Empire having increased by a 
 complication of disasters, each of the five powers declared its 
 determination to maintain the independence of that empire, 
 under the reigning dynasty; and as a necessary consequence 
 of this determination, that neither of them should seek to 
 profit by the present state of things to obtain an increase of 
 territory or an exclusive influence. 
 
 The negotiations finally resulted in the conclusion of the 
 convention of the 15th July, 1840, between four of the great 
 European powers, Austria, Great Britain, Prussia, and Russia, 
 to which the Ottoman Porte acceded, and in consequence of 
 which Mehemet Ah was compelled to relinquish the posses- 
 sion of all the provinces held by him, except Egypt, the here- 
 ditary Pachalic of which was confirmed to him, according 
 to the conditions contained in the separate article of the 
 convention (?/). 
 
 70a. The Eastern Question, or the relation of Turkey to the other powers 
 
 The East- of Europe, is still the great stumbling block, which all diplomatic efforts 
 ern Ques- h aV e as yet failed to remove, and the present attempt of Russia to cut the 
 knot by the sword has brought the question into peculiar prominence. 
 The condition of the inhabitants of European Turkey is unfortunate. 
 They consist of various subject races, ruled over by a race alienated from 
 them by language, manners, and religion, and which appears incapable 
 of assimilating itself with them. The government of the Turks is more- 
 over not particularly well carried on, and the subject races are intimately 
 related to subjects of the adjoining countries, either by race or by reli- 
 gion. The maintenance of the balance of power in Europe has in recent 
 times been considered to depend upon some powerful State having 
 possession of European Turkey, in order to form a bulwark against the 
 encroaching policy of Russia ; and as, apart from the possessory right of 
 
 (y) Wheaton, Hist, of the Law of Nations, pp. 5(53583. [State Papers, 
 vol. xxviii. p. 342J.
 
 AND INDEPENDENCE. 95 
 
 the Turks, no other power to suit the purpose has been found, the 
 Western Powers of Europe have agreed to maintain the integrity of the 
 Ottoman Empire. For this purpose England and France fought the 
 Crimean war, in 1864 6. The object of Russia has invariably been to 
 acquire as much of Turkish territory as possible, while it has been 
 equally the policy of the Western powers to resist these encroachments. 
 
 By the Treaty of Paris, 1856, which closed the Crimean war, England, 70b. 
 Austria, France, Prussia, Russia, and Sardinia declared " the Sublime ^eaty of 
 Porte admitted to participate in the advantages of the public law and jgjj'g' 
 system of Europe. Their Majesties engage, each on his part, to respect 
 the independence and the territorial integrity of the Ottoman Empire ; 
 guarantee in common the strict observance of the engagement ; and will, 
 in consequence, consider any act tending to its violation as a question of 
 general interest." A separate treaty to the same effect was entered 
 into between England, France, and Austria, on the 15th April, 1856 (2). 
 In compliance with the wishes of the Powers, the Sultan, in 1856, issued 
 a firman for ameliorating the condition of his Christian subjects, and 
 communicated this to the Powers who signed the general Treaty of 
 Paris. That Treaty, however, states that " It is clearly understood that 
 it (the firman) cannot in any case give to the said Powers the right to 
 interfere, either collectively or separately, in the relations of His Majesty 
 the Sultan with his subjects, nor in the internal administration of his 
 Empire "(a). 
 
 About the beginning of 1875, a revolt broke out in Herzegovina, and 1- 
 the apathy of the Porte prevented sufficiently strong measures being 
 taken to suppress it. This lasted throughout 1 875, and the insurrection 
 gained ground by receiving encouragement from Servia and Montenegro. 
 On the 30th December, 1875, Austria addressed the well-known An- 
 drassy Note, which contained proposals for settling the dispute, to the 
 other powers, and it was submitted to the Porte, but not accepted by the 
 latter. On the llth of May, 1876, Russia, Prussia, and Austria put 
 forward another document, viz., the Berlin Memorandum, in which it 
 was stated that as the Sultan had given the powers a pledge to execute 
 the reforms specified in the Andrassy Note, he had at the same time 
 given them a moral right to insist that he should keep his word. This 
 scheme also fell through on account of the refusal of England to join in 
 pressing its reception by the Porte (6). Shortly after this, another insur- 
 rection broke out in Bulgaria, and on this occasion the Turks suppressed 
 the insurgents with very great and unnecessary ferocity. These cruel- 
 ties, though much exaggerated at the time, resulted in Servia declaring 
 war against Turkey, on the 30th of June, 1876, and although Russia was 
 still at peace with the Porte, thousands of her subjects nocked to the 
 Servian army, and the struggle was virtually maintained by Russian 
 volunteers. Peace was made between Servia and Turkey towards the 
 end of 1876, but in the meantime Russia commenced mobilizing a large 
 army, and concentrated it on the borders of Roumania. A conference 
 
 (z) [Art. vii. See Hertslet, Map of Europe by Treaty, vol. ii. pp. 1255, 1280]. 
 
 (a) [Art. ix. See these treaties in the Appeudix F. p. 705.] 
 
 (b) [See these documents in Annual Register, 1876. Public Documents.}
 
 96 RIGHT OF SELF-PRESERVATION 
 
 for the settlement of all difficulties was then proposed by England, at 
 which Turkey, and each of the great Powers was to be represented. The 
 conference met at Constantinople, but its proposals were all ultimately 
 rejected by Turkey, as inconsistent with her independence. On the 31st 
 of March, 1877, a final protocol was submitted to the Porte, in which the 
 Powers expressed a hope that Turkey would ameliorate the .condition of 
 her Christian subjects, and that, should she fail in this, "they (the 
 Powers) think it right to declare that such a state of affairs would be 
 incompatible with their interests, and those of Europe in general. In 
 such a case they reserve to themselves to consider in common as to the 
 means which they may deem best fitted to secure the well-being of the 
 Christian populations, and the interests of the general peace " (c). The 
 Porte, in a very able and dignified reply, regretted that it had not been 
 invited to take part in the deliberations preceding the protocol, although 
 they affected its vital interests, and it therefore felt " imperiously obliged 
 to assert itself against the authority of such a precedent " (d). The in- 
 cessant augmentation of her armies by Russia disclosed her predetermined 
 intention of going to war as soon as she should be ready to take the 
 field. 
 
 70 d. Soon after the receipt of the Turkish note, the Czar declared war against 
 
 Outbreak t h e g u itan, under the pretext that the Porte having refused to do any- 
 
 between thing towards improving the condition of its Christian subjects, it be- 
 
 Ilussia and came the duty of Russia to take their case in hand, and ameliorate their 
 
 Turkey. position by force of arms. After the commencement of hostilities, Lord 
 
 Derby addressed a note to Prince Gortchakow, in which his lordship 
 
 said that " the course on which the Russian government had entered 
 
 is in contravention of the stipulation of the Treaty of 
 
 Paris, March 30th, 1856, by which Russia and the other signatory 
 Powers engaged, each on its own part, to respect the independence and 
 territorial integrity of the Ottoman Empire." And moreover that it was 
 " an essential principle of the law of nations that no power can liberate 
 itself from the engagements of a treaty, nor modify the stipulations 
 thereof, unless with the consent of the contracting parties by means of 
 an amicable arrangement " (e). What this war may ultimately result in 
 cannot be foreseen at present, nor is it within the scope of a work of this 
 description to attempt any prophecy as to the future. The remarkable 
 valour and prowess of the Turkish armies has clearly demonstrated that 
 the Porte is not the effete State it was usual to represent it, and to bring 
 the war to a successful conclusion will tax the strength of Russia to the 
 utmost. The settlement of the question does not belong to the com- 
 batants alone, unless peace be made on the basis of the status quo ante 
 bellum. If Russia wishes to acquire any portion of European Turkey, or 
 to exercise any power in Bulgaria, the question becomes an international 
 one, and can only rightfully be settled in accordance with the treaties 
 existing on the subject, unless, indeed, the treaties are deemed to be no 
 longer binding. 
 
 (c) [Parl. Papers, Turkey, No. 9 (1877), p. 2]. 
 
 (d) [Parl. Papers, Turkey, No. 12 (1877), p. 5]. 
 
 (e) [Despatch, 1st May, 1877].
 
 AND INDEPENDENCE. 97 
 
 The interference of the five great European powers repre- In J^ 
 sented in the conference of London, in the Belgic Revolution ence of the 
 of 1830, affords an example of the application of this right to J^^f 
 preserve the general peace, and to adapt the new order of powers in 
 things to the stipulations of the treaties of Paris and Vienna, re v i u e t joQ 
 by which the kingdom of the Netherlands had been created. of 1830. 
 We have given, in another work, a full account of the long 
 and intricate negotiations relating to the separation of Belgium 
 from Holland, which assumed alternately the character of a 
 pacific mediation and of an armed intervention, according to 
 the varying circumstances of the contest, and which was finally 
 terminated by a compromise between the two great opposite 
 principles which so long threatened to disturb the established 
 order and general peace of Europe. The Belgic Revolution 
 was recognized as an accomplished fact, whilst its legal conse- 
 quences were limited within the strictest bounds, by refusing 
 to Belgium the attributes of the rights of conquest and of 
 postliminy, and by depriving her of a great part of the province 
 of Luxembourg, of the left bank of the Scheldt, and of the 
 right bank of the Meuse. The five great powers, representing 
 Europe, consented to the separation of Belgium from Holland, 
 and admitted the former among the independent States of 
 Europe, upon conditions which were accepted by her and have 
 become the bases of her public law. These conditions were 
 subsequently incorporated into a definite treaty, concluded 
 between Belgium and Holland in 1839, by which the indepen- 
 dence of the former was finally recognized by the latter (/). 
 
 Every State, as a distinct moral being, independent of every 72. 
 
 , PI TI i Indepenrl- 
 
 other, may freely exercise all its sovereign rights in any ence O f t i ie 
 manner not inconsistent with the equal rights of other States. state m 
 
 respect to 
 
 Among these is that of establishing, altering, or abolishing its its internal 
 own municipal constitution of government. No foreign State ^ [ n " 
 can lawfully interfere with the exercise of this right, unless 
 such interference is authorized by some special compact, or by 
 such a clear case of necessity as immediately affects its own 
 independence, freedom, and security. Non-interference is the 
 general rule, to which cases of justifiable interference form 
 exceptions limited by the necessity of each particular case. 
 
 The approved usage of nations authorizes the proposal by 73. 
 
 Mediation 
 (/) Whcaton's Hist, of the Law of Nations, pp. 538555. of foreign
 
 98 EIGHT OF SELF-PRESERVATION 
 
 States for one State of its good offices or mediation for the settlement of 
 ment of the * ne intestine dissensions of another State. When such offer 
 internal i s accepted by the contending parties, it becomes a iust title 
 
 dissensions ,. 
 
 of a State. ">r the interference of the mediating power, 
 mediation* Such a title may also grow out of positive compact pre- 
 and gua- viously existing, such as treaties of mediation and guaranty. 
 Of this nature was the guaranty by France and Sweden of the 
 Germanic Constitution at the peace of Westphalia in 1648, 
 the result of the thirty years' war waged by the princes and 
 States of Germany for the preservation of their civil and reli- 
 gious liberties against the ambition of the House of Austria. 
 
 The Republic of Geneva was connected by an ancient 
 alliance with the Swiss Cantons of Berne and Zurich, in con- 
 sequence of which they united with France, in 1738, in 
 offering the joint mediation of the three powers to the con- 
 tending political parties by which the tranquillity of the 
 republic was disturbed. The result of this mediation was the 
 settlement of a constitution, which giving rise to new disputes 
 in 1768, they were again adjusted by the intervention of the 
 mediating powers. In 1782, the French government once 
 more united with these Cantons and the court of Sardinia in 
 mediating between the aristocratic and democratic parties ; 
 but it appears to be very questionable how far these trans- 
 actions, especially the last, can be reconciled with the respect 
 due, on the strict principles of international law, to the just 
 rights and independence of the smallest, not less than to 
 those of the greatest States (g). 
 
 The present constitution of the Swiss Confederation was 
 also adjusted, in 1813, by the mediation of the great allied 
 powers, and subsequently recognized by them at the Congress 
 of Vienna as the basis of the federative compact of Switzer- 
 land. By the same act the united Swiss Cantons guarantee 
 their respective local constitutions of government (h). 
 
 So also the local constitutions of the different States com- 
 posing the Germanic Confederation may be guaranteed by the 
 Diet on the application of the particular State in which the 
 constitution is established ; and this guaranty gives the Diet 
 
 (g) Flassan, Histoire de la Diplomatic Fran^aise, torn. v. p. 78; torn. vii. 
 pp. 27, 297. 
 
 (h) Acte Final du Congres de Vienne, art. 74.
 
 AND INDEPENDENCE. 99 
 
 the right of determining all controversies respecting the in- 
 terpretation and execution of the constitution thus estahlished 
 and guaranteed (.). 
 
 And the Constitution of the United States of America gua- 
 rantees to each State of the federal Union a republican form 
 of government, and engages to protect each of them against 
 invasion, and, on application of the local authorities, against 
 domestic violence (k). 
 
 In 1862, a proposition was made by France to England and Russia, 73 a. 
 that the three countries should offer their friendly mediation to the con- Proposed 
 tending parties in the American civil war. The moment was deemed ^ e ^ 10B 
 inopportune by Russia, and England declined to accede to the proposal. American 
 " According to the information we possess," wrote Prince Gortchacow to civil war. 
 M. D'Oubil, Russian charge d'affaires in Paris, on the 27th Oct., 1862, 
 " we are led to believe that a combined movement of France, England, 
 and Russia, however conciliatory it might be, and with whatsoever pre- 
 cautions it might be surrounded, if it came with an official and collective 
 character, would incur the risk of bringing about a result opposed to 
 the pacificatory end which the three Courts desire " (Z). The proposal 
 would have been declined had it been made. It was thought in the 
 Northern States that the policy of France was hostile to the Union, and 
 that the proposed mediation was only a preliminary step to the acquisi- 
 tion by France of those parts of the dismembered Union which had 
 formerly belonged to her (TO). 
 
 This perfect independence of every sovereign State, in 74. 
 respect to its political institutions, extends to the choice of ence^f nd " 
 the supreme magistrate and other rulers, as well as to the ? y ery State 
 form of government itself. In hereditary governments, the to the 1 * 
 succession to the crown being regulated by the fundamental Choice f 
 laws, all disputes respecting the succession are rightfully 
 settled by the nation itself, independently of the interference 
 or control of foreign powers. So also in elective governments, 
 the choice of the chief or other magistrates ought to be freely 
 made, in the manner prescribed by the constitution of the 
 State, without the intervention of any foreign influence or 
 authority (n). 
 
 (i) Wiener Schluss-Acte, vom 15 Mai, 1820, art 62. Corpus Juris Ger- 
 manici, von Mayer, torn. ii. p. 196. 
 
 (k) Constitution of the United States, art 3. 
 (Z) [U. S. Dipl. Cor. 1863, vol. ii. p. 769]. 
 
 (m) [Draper, Hist, of American Civil War, vol. iii. p. 439]. 
 (n) Vattel, Droit 
 
 it des Gens, liv. i. ch. 5, 66, 67.
 
 100 
 
 RIGHT OF SELF PRESERVATION 
 
 75 ; 
 
 growing 
 out of com- 
 
 pact or 
 
 other just 
 
 76. 
 
 1834, 
 
 France" 1 
 Great 
 
 Portugal, 
 and Spain, 
 
 The only exceptions to the application of these general rules 
 arise out of compact, such as treaties of alliance, guarantee, 
 an( j me( ji a tion, to which the State itself whose concerns are 
 in question has become a party ; or formed by other powers 
 m tne exercise of a supposed right of an intervention growing 
 out of a necessity involving their own particular security, or 
 some contingent danger affecting the general security of 
 nations. Such, among others, were the wars relating to the 
 Spanish succession, in the beginning of the eighteenth century, 
 and to the Bavarian and Austrian successions, in the latter 
 part of the same century. The history of modern Europe 
 also affords many other examples of the actual interference 
 of foreign powers in the choice of the sovereign or chief 
 magistrate of those States where the choice was constitution- 
 ally determined by popular election, or by an elective council, 
 such as in the cases of the head of the Germanic Empire, the 
 King of Poland, and the Roman pontiff ; but in these cases no 
 argument can be drawn from the fact to the right. In the 
 particular case, however, of the election of the pope, who is 
 the supreme pontiff of the Eoman Catholic Church, as well as 
 a temporal sovereign, the Emperor of Austria, and the Kings 
 of France and Spain have, by ancient usage, each a right to 
 exclude one candidate (o). 
 
 The quadruple alliance, concluded in 1834 between France, 
 ^ reat Britain, Spain, and Portugal, affords a remarkable 
 example of actual interference in the questions relating to the 
 succession to the crown in the two latter kingdoms, growing 
 out of compacts to which they were parties, formed in the 
 exercise of a supposed right of interference for the preserva- 
 tion of the peace of the Peninsula as well as the general peace 
 of Europe. Having already stated in another work the 
 historical circumstances which gave rise to the quadruple 
 alliance, as well as its terms and conditions, it will only be 
 necessary here to recapitulate the leading principles, which 
 may be collected from the debate in the British Parliament, 
 in 1835, upon the measures adopted by the British Govern- 
 ment to carry into effect the stipulations of the treaty. 
 
 1. The legality of the order in council permitting British 
 subjects to engage in the military service of the Queen of 
 
 (o) Kliiber, Droit des Gens Moderne de 1'Europe, Ft. II. tit. 1, ch. 2, 48.
 
 AND INDEPENDENCE. 
 
 Spain, by exempting them from the general operation of the 
 act of Parliament of 1819, forbidding them from enlisting in 
 foreign military service, was not called in question by Sir 
 Robert Peel and the other speakers on the part of the opposi- 
 tion. Nor was the obligation of the treaty of quadruple 
 alliance, by which the British Government was bound to 
 furnish arms and the aid of a naval force to the Queen of 
 Spain, denied by them. Yet it was asserted, that without a 
 declaration of war, it would be with the greatest difficulty that 
 the special obligation of giving naval aid could be fulfilled, 
 without placing the force of such a compact in opposition to the 
 general binding nature of international law. Whatever might 
 be the special obligation imposed on Great Britain by the 
 treaty, it could not warrant her in preventing a neutral State 
 from receiving a supply of arms. She had no right, without 
 a positive declaration of war, to stop the ships of a neutral 
 country on the high seas. 
 
 2. It was contended that the suspension of the foreign en- 
 listment law was equivalent to a direct military interference in 
 the domestic affairs of another nation. The general rule on 
 which Great Britain had hitherto acted was that of non-inter- 
 ference. The only exceptions admitted to this rule were cases 
 where the necessity was urgent and immediate ; affecting, 
 either on account of vicinage, or some special circumstances, 
 the safety or vital interests of the State. To interfere on the 
 vague ground that British interests would be promoted by the 
 intervention ; on the plea that it would be for their advantage 
 to see established a particular form of government in Spain, 
 would be to destroy altogether*the general rule of non-inter- 
 vention, and to place the independence of every weak power 
 at the mercy of its formidable neighbours. It was impossible 
 to deny that an act which the British government permitted, 
 authorizing British soldiers and .subjects to enlist in the 
 service of a foreign power, and allowing them to be organized 
 in Great Britain, was a recognition of the doctrine of the pro- 
 priety of assisting by a military force a foreign government 
 against an insurrection of its own subjects. When the Foreign 
 Enlistment Bill was under consideration in the House of 
 Commons, the particular clause which empowered the king in 
 council to suspend its operation was objected to on the ground, 
 
 101
 
 102 RIGHT OF SELF-PRESERVATION. 
 
 that if there waB no foreign enlistment act, the subjects of Great 
 Britain might volunteer in the service of another country, and 
 there could be no particular ground of complaint against 
 them ; but that if the king in council were permitted to issue 
 an order suspending the law with reference to any belligerent 
 nation, the government might be considered as sending a force 
 under its own control. 
 
 Lord Palmerston, in reply, stated : 1. That the object of 
 the treaty of quadruple alliance, as expressed in the preamble, 
 was to establish internal peace throughout the Peninsula, in- 
 cluding Spain as well as Portugal ; the means by which it 
 was proposed to effect that object was the expulsion of the 
 infants Don Carlos and Dom Miguel from Portugal. When 
 Don Carlos returned to Spain, it was thought necessary to 
 frame additional articles to the treaty in order to meet the 
 new emergency. One of these additional articles engaged 
 His Britannic Majesty to furnish Her Catholic Majesty with 
 such supplies of arms and warlike stores as Her Majesty might 
 require, and further to assist Her Majesty with a naval force. 
 The writers on the law of nations all agreed that any Govern- 
 ment, thus stipulating to furnish arms to another, must be 
 considered as taking an active part in any contest in which 
 the latter might be engaged ; and the agreement to furnish 
 a naval force, if necessary, was a still stronger demonstration 
 to that effect. If, therefore, the recent order in council was 
 objected to on the ground that it identified Great Britain with 
 the cause of the existing government of Spain, the answer 
 was, that, by the additional articles of the quadruple treaty, 
 that identification had already been established, and that one 
 of those articles went even beyond the measure which had 
 been impugned. 
 
 2. As to what had been alleged as to the danger of estab- 
 lishing a precedent for the interference of other countries, he 
 would merely observe; that in the first place this interference 
 was founded on a treaty arising out of the acknowledged right 
 of succession of a sovereign, decided by the legitimate authori- 
 ties of the country over which she ruled. In the case of a 
 civil war proceeding either from a disputed succession, or 
 from a prolonged revolt, no writer on international law denied 
 that other countries, had a right, if they chose to exercise it,
 
 AND INDEPENDENCE. 103 
 
 to take part with either of the two belligerent parties. Un- 
 doubtedly it was inexpedient to exercise that right except 
 under circumstances of a peculiar nature. That right, how- 
 ever, was general. If one country exercised it, another might 
 equally exercise it. One State might support one party, 
 another the other party : and whoever embarked in either 
 cause must do so with their eyes open to the full extent of the 
 possible consequences of their decision. He contended, there- 
 fore, that the measure under consideration established no new 
 principle, and that it created no danger as a precedent. Every 
 case must be judged by the considerations of prudence which 
 belonged to it. The present case, therefore, must be judged by 
 similar considerations. All that he maintained was, that the 
 recent proceeding did not go beyond the spirit of the engage- 
 ment into which Great Britain had entered, that it did not 
 establish any new principle, and that the engagement was 
 quite consistent with the law of nations (p). 
 
 In 1861 there occurred a remarkable intervention in the affairs of 76a. 
 Mexico, which is thus described in the Queen's Speech on the opening J.^ '7 CI1 ' 
 of Parliament : " The wrongs committed by various parties and by sue- Mexico hi 
 cessive governments in Mexico upon foreigners resident within Mexican 1361. 
 territory, and for which no satisfactory redress could be obtained, have 
 led to the conclusion of a convention between Her Majesty, the Emperor 
 of the French, and the Queen of Spain, for the purpose of regulating a 
 combined operation on the coast of Mexico, with a view to obtain that 
 redress which has hitherto been withheld" (q). The contracting powers 
 " engaged not to seek for themselves, in the employment of the contem- 
 plated coercive measures, any acquisition of territory, or any special 
 advantage, nor to exercise in the internal affairs of Mexico any influence 
 of a nature to prejudice the right of the Mexican nation to choose and 
 constitute the form of its government " (r). 
 
 The main reason for this intervention was to obtain the payment of 
 debts contracted by the Mexican government. The amount due to 
 England was very large, while that owing to France was comparatively 
 small, yet the Emperor Napoleon thought fit to go much further than 
 simply obtaining satisfaction for the claims of France. He set up the 
 unfortunate Maximilian as Emperor of Mexico, and then, withdrawing 
 the French troops, left him to maintain his throne by his own 
 resources, and to be finally murdered by the subjects upon whom he 
 had been forced. England and Spain refused to assist France in these 
 
 (p) Wheaton's Hist. Law of Nations, pp. 523538. 
 (q) [Annual Register, 1862, p. 5], 
 
 (r) [Convention of Oct. 31, 18G1, art. ii. Hertslet's Treaties, vol. xii. 
 p. 475].
 
 104 RIGHT OF SELF-PRESERVATION 
 
 proceedings, and withdrew from the intervention when their claims had 
 been satisfied. The United States were invited to join the allies, but 
 declined, and it subsequently appeared that France was desirous of 
 setting up a powerful Latin State on the continent of America in oppo- 
 sition to the United States (s). It is fortunate that England has not 
 since followed this precedent, and intervened in all cases where States 
 have made default in paying debts due to British subjects. It was 
 unjustifiable in the case of Mexico, and would be not only unjustifiable 
 but impossible at the present time from the course such commercial 
 transactions have taken, and the number of defaulting States. M. Calvo 
 justly says that this intervention " constitue pour les puissances qui 
 s'y sont laisse entrainer un precedent aussi peu digne d'eloges que funeste 
 a leur consideration et a leurs interets " (<). 
 
 g wgv The maintenance of a French garrison in Rome was an altogether 
 
 The French anomalous proceeding. In 1856 the Emperor Napoleon occupied Rome, 
 garrison in His troops were kept there on the ground that the Pope required to be 
 Rome. protected in the exercise of his spiritual functions as head of the Catholic 
 
 Church. The garrison was partly withdrawn in 1864 (u), but returned 
 in 18C8, owing to the aggressive attitude of the revolutionary party in 
 Italy, and the invasion of the Papal States by Garibaldi. However, on 
 the 19th of August, 1870, the French troops evacuated Rome, and what 
 was left of the Papal States was afterwards incorporated into the king- 
 dom of Italy, leaving the Pope nothing but the Vatican (z). But it 
 was not until 1874 that the last trace of the French occupation disap- 
 peared from Rome. Up to that date the Orenoque, a French ship of 
 war, was moored off Civita Vecchia, ostensibly to assist the Pope should 
 he be in difficulties, and it was not until the 12th of October in that 
 year that she was removed (y). 
 
 (s) [See Phillimore, vol. i. p. 507]. 
 
 (t) [Droit International, vol. i. 118 (2nd ed.), p. 239], 
 
 (u) [Hertslet, Map of Europe, vol. ii. p. 16271. 
 
 (*) [Ibid., p. 1628]. 
 
 (y) [Annual Register, 1874, p. 193],
 
 CHAPTER II. 
 
 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 EVERY independent State is entitled to the exclusive power 77. 
 of legislation, in respect to the personal rights and civil state power O f 
 and condition of its citizens, and in respect to all real and ^ lv } 1 le o ls- 
 
 lation. 
 
 personal property situated within its territory, whether belong- 
 ing to citizens or aliens. But as it often happens that an 
 individual possesses real property in a State other than that of 
 his domicile, or that contracts are entered into and testaments 
 executed by him, or that he is interested in successions ab 
 intestato, in a country different from either ; it may happen 
 that he is, at the same time, subject to two or three sovereign 
 powers ; to that of his native country or of his domicile, to 
 that of the place where the property in question is situated, 
 and to that of the place where the contracts have been made or 
 the acts executed. The allegiance to the sovereign power of 
 his native country exists from the birth of the individual, and 
 continues till a change of nationality. In the two other cases 
 he is considered subject to the laws, but only in a limited 
 sense. In the foreign countries where he possesses real 
 property, he is considered a non-resident landowner (sujet 
 forain) ; in those in which the contracts are entered into, a 
 temporary resident (sujet passager). As, in general, each of 
 these different countries is governed by a distinct legislation, 
 conflicts between their laws often arise ; that is to say, it is 
 frequently a question which system of laws is applicable to the 
 case. The collection of rules for determining the conflicts p r ; vat6 
 between the civil and criminal laws of different States, is intema- 
 called private international law, to distinguish it from public 
 international law, which regulates the relations of States (a). 
 
 (a) Fcelix, Droit International Prive, 3. [Story, Conflict of Laws, 
 9, 10, 11. Kent, Comra. vol. ii. p. 39. Westlake, 1].
 
 106 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 78. The first general principle on this subject results imme- 
 
 laws. diately from the fact of the independence of nations. Every 
 
 nation possesses and exercises exclusive sovereignty and juris- 
 diction throughout the full extent of its territory. It follows, 
 from this principle, that the laws of every State control, of 
 right, all the real and personal property within its territory, as 
 well as the inhabitants of the territory, whether born there or 
 not, and that they affect and regulate all the acts done, or 
 contracts entered into within its limits. 
 
 Consequently, " every State possesses the power of regulat- 
 ing the conditions on which the real or personal property, 
 within its territory, may be held or transmitted ; and of deter- 
 mining the state and capacity of all persons therein, as well as 
 the validity of the contracts and other acts which arise there, 
 and the rights and obligations which result from them ; and, 
 finally, of prescribing the conditions on which suits at law 
 may be commenced and carried on within its territory." (&) 
 
 The second general principle is, " that no State can, by its 
 laws, directly affect, bind, or regulate property beyond its own 
 territory, or control persons who do not reside within it, 
 whether they be native-born subjects or not. This is a conse- 
 quence of the first general principle ; a different system, 
 wilicli would recognize in each State the power of regulating 
 persons or things beyond its territory, would exclude the 
 equality of rights among different States, and the exclusive 
 sovereignty which belongs to each of them." (c) 
 
 From the two principles, which have been stated, it follows 
 that all the effect, which foreign laws can have in the territory 
 of a State, depends absolutely on the express or tacit consent 
 of that State. A State is not obliged to allow the application 
 of foreign laws within its territory, but may absolutely refuse 
 to give any effect to them. It may pronounce this prohibi-" 
 tion with regard to some of them only, and permit others to 
 be operative, in whole or in part. If the legislation of the 
 State is positive either way, the tribunals must necessarily 
 conform to it. In the event only of the law being silent, the 
 courts may judge, in the particular cases, how to follow the 
 foreign laws, and to apply their provisions. The express 
 
 (b) Fctlix, Droit International Prive, 9. (c) Ibid. 10.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 107 
 
 consent of a State, to the application of foreign laws within 
 its territory, is given by acts passed by its legislative autho- 
 rity, or by treaties concluded with other States. Its tacit 
 consent is manifested by the decisions of its judicial and 
 administrative authorities, as well as by the writings of its 
 publicists. 
 
 There is no obligation, recognised by legislators, public 79. 
 authorities, and publicists, to regard foreign laws; but their tionasto 
 application is admitted, only from considerations of utility j orei g n 
 and the mutual convenience of States ex comitate, ob recipro- 
 cam utilitatem. The public good and the general interests of 
 nations have caused to be accorded, in every State, an opera- 
 tion more or less extended to foreign laws. Every nation has 
 found its advantage in this course. The subjects of every 
 State have various relations with those of other States ; they 
 are interested in the business transacted and in the property 
 situate abroad. Thence flows the necessity, or at least utility, 
 for every State, in the proper interest of its subjects, to accord 
 certain effects to foreign laws, and to acknowledge the validity 
 of acts done in foreign countries, in order that its subjects may 
 find in the same countries a reciprocal protection for their 
 interests. There is thus formed a tacit convention among 
 nations for the application of foreign laws, founded upon reci- 
 procal wants. This understanding is not the same every- 
 where. Some States have adopted the principle of complete 
 reciprocity, by treating foreigners in the same manner as their 
 subjects are treated in the country to which they belong ; 
 other States regard certain rights to be so absolutely inherent 
 in the quality of citizens as to exclude foreigners from them ; 
 or they attach such an importance to some of their institu- 
 tions, that they refuse the application of every foreign law 
 incompatible with the spirit of those institutions. But, in 
 modern times, all States have adopted, as a principle, the 
 application within their territories of foreign laws ; subject, 
 however, to the restrictions which the rights of sovereignty 
 and the interests of their own subjects require. This is the 
 doctrine professed by all the publicists who have written on 
 the subject (d). 
 
 (d) [Galdwell v. Vanvliimigcn, 9 Hare, 425].
 
 108 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 " Above all things," says President Bohier, " we must 
 remember that, though the strict rule would authorise us to 
 confine the operation of laws within their own territorial 
 limits, their application has, nevertheless, been extended, from 
 considerations of public utility, and oftentimes even from 
 a kind of necessity. But, when neighbouring nations have 
 permitted this extension, they are not to be deemed to have 
 subjected themselves to a foreign statute ; but to have allowed 
 it, only because they have found in it their own interest by 
 having, in similar cases, the same advantages for their own 
 laws among their neighbours. This effect given to foreign 
 laws is founded on a kind of comity of the law of nations ; by 
 which different peoples have tacitly agreed that they shall 
 apply, whenever it is required by equity and common utility, 
 provided they do not contravene any prohibitory enact- 
 ment." (e) 
 
 s 8 o Huberus, one of the earliest and best writers on this sub- 
 
 Rules laid j ec t } lays down the following general maxims, as adequate 
 Hubems. to solve all the intricate questions which may arise re- 
 specting it : 
 
 1. The laws of every State have force within the limits of 
 that State, and bind all its subjects. 
 
 2. All persons within the limits of a State are considered 
 as subjects, whether their residence is permanent or temporary. 
 
 3. By the comity of nations, whatever laws are carried 
 into execution within the limits of any State, are considered 
 as having the same effect everywhere, so far as they do not 
 occasion a prejudice to the rights of other States and their 
 citizens. 
 
 From these maxims, Huberus deduces the following general 
 corollary, as applicable to the determination of all questions 
 arising out of the conflict of the laws of different States, in 
 respect to private rights of persons and property. 
 
 All transactions in a court of justice, or out of court, whether 
 testamentary or other conveyances, which are regularly done 
 or executed according to the law of any particular placa, are 
 valid, even where a different law prevails, and where, had they 
 been so transacted, they would not have been valid. On the 
 
 (e) Bolder, Observations sur la coutume de Bourgogne, ch. 23, 62, 63 
 p. 467.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 109 
 
 other hand, transactions and instruments which are done or 
 executed contrary to the laws of a country, as they are void at 
 first, never can be valid ; and this applies not only to those 
 who permanently reside in the place where the transaction or 
 instrument is done or executed, hut to those who reside there 
 only temporarily ; with this exception only, that if another 
 State, or its citizens, would be affected by any peculiar incon- 
 venience of an important nature, by giving this effect to acts 
 performed in another country, that State is not bound to give 
 effect to those proceedings, or to consider them as valid within 
 its jurisdiction (/). 
 
 Thus, real property is considered as not depending alto- 81. 
 gether upon the will of private individuals, but as having rei gl -^f 
 certain qualities impressed upon it by the laws of that country 
 where it is situated, and which qualities remain indelible, 
 whatever the laws of another State, or the private dispositions 
 of its citizens, may provide to the contrary. That State, 
 where this real property is situated, cannot suffer its own laws 
 in this respect to be changed by these dispositions, without 
 great confusion and prejudice to its own interests. Hence it 
 follows, that the law of a place where real property is situated 
 governs exclusively as to the tenure, the title, and the descent 
 of such property (g). 
 
 This rule is applied, by the international jurisprudence of 
 the United States and Great Britain, to the forms of con- 
 veyance of real property, both as between different parts of 
 the same confederation or empire, and with respect to foreign 
 countries. Hence it is that a deed or will of real property, 
 executed in a foreign country, or in another State of the 
 Union, must be executed with the formalities required by the 
 laws of that State where the land lies (Ji). 
 
 (/) Huberus, Prselect, torn. ii. lib. i. tit. 3, de Conflictu Legum. 
 
 ((/) " Funclamentum universe hujus doctrinse diximus esse, et tenemus, 
 subjectionem hominum infra leges cujusque territorii, quaindiu illic aguut, 
 quoe facit ut actus ab initio validus aut null us, alibi quoque valere aut mm 
 valere non nequeat. Sed hsec ratio non convenit rebus hnmobilibus, quando 
 illpe spectantur, non ut dependentes a libera dispositioue cuj usque patris- 
 familias, verum quatenus certse uotaj lege cujusque reipublicse ubi sitse sunt, 
 illis impresses reperhmtur ; hfe note manent indelebiles in ista republica, 
 quidquid aliarum civitatum leges, aut privatorum dispositiones, secus aut 
 contra statuant ; nee enim sine magna confusione prejudicioque reipubliere ubi 
 sitse sunt res soli, leges de illis latse, dispositiombus istis mutari possunt. " 
 Huberus, liv. i. tit. 3, de Conflictu Leg. 15. 
 
 (h) Robinson v. Campbell, 3 Wheaton, 212 ; U. S. \. Crosby, 7 Crauch,
 
 110 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 But this application of the rule is peculiar to American 
 . and British law. According to the international jurisprudence 
 recognised among the different nations of the European con- 
 tinent, a deed or will, executed according to the law of the 
 place where it is made, is valid ; not only as to personal, but 
 as to real property, wherever situated ; provided the pro- 
 perty is allowed by the lex loci rei sitce to be alienated by 
 deed or will ; and those cases excepted, where that law pre- 
 scribes, as to instruments for the transfer of real property, 
 particular forms, which can only be observed in the place 
 where it is situated, such as the registry of a deed or the 
 probate of a will (i). 
 
 81a. The main reason for this divergence lies in the fact that continental 
 
 Reasons conveyancing has always supposed public acts as the rule, and made Init 
 "difference a com P arative V sparing use of the private documents which constitute 
 Anglo-American titles. The inconvenience arising from the inability to 
 dispose of land unless the owner was in the lex situs, naturally led to the 
 rule that conveyances of immovables are rendered valid by the lex loci 
 act-us. On _ the other hand, the Anglo- American law prescribes for- 
 malities which may be performed anywhere, and are not contrary to the 
 law of any nation, and it therefore justly refuses to give effect to trans- 
 fers of land, unless such formalities have been complied with (k). How- 
 ever, no one maintains that a form expressly imposed as an exclusive 
 one by the lex situs, can ever be dispensed with. Thus the French law 
 of the 23rd March, 1855, requires immovable property in France to be 
 transferred inter vivos by a transcription in the bureau des hypotheques, 
 and no transfer is valid without such transcription (I). 
 
 This diversity of opinion is now of no great importance, because the 
 laws of most European States have adopted the principle that land is 
 subject to the lex rei sites. This is done expressly by the codes of 
 Prussia (m), Austria (TO), Saxony (o), Italy (p), and Greece (q). Another 
 
 115 ; [Coppin v. Coppin, 2 P. W. 291 ; Brodie v. Barry, 2 Ves. & Beames, 
 127 ; McGoon v. Scales, 9 Wallace, 23 ; Freke v. Lord Cm-berry, L. R. 16 Eq. 
 461 : Wharton, 372]. 
 
 (i) Fcelix, Droit International Prive, 52. " Hinc Frisius habens agros ct 
 domos in provincia Groningensi, non potest de illis testari, quia lege prohi- 
 bituni est ibi de bonis immobilibus testari, non valente jure Frisico adficere 
 bona, quse partes alieni territorii integrantes constituunt. Sed an hoc non 
 obstat ei, quod autea diximus, si factum sit testamentum jure loci validum, id 
 effectum habere etiam in bonis alibi sitis, ubi de illis testari licet ? Non 
 obstat ; quia legum diversitas in 1114 specie non afficit res soli, neque de illis 
 loquitur, sed ordinat actum testandi ; quo recte celebrate, lex Rei publics non 
 vetat ilium actum valere in immobilibus, quatenus nullus character illis ipsis 
 a lege loci impressus laeditur aut imminuitur." Huberus, ubi supra. 
 
 (k) [Westlake, 82]. 
 
 .(/) [Ibid. 87. Tripier, Codes Francais, p. 1618]. 
 
 (m) [Allegemeines Landrecht, Emleitung, 28]. 
 
 (ri) [Oesterreichische Gczette, 300]. (o) [Saxon Civil Code, 10]. 
 
 (p) [Law of 25th June, 1865, art. 7]. (q) [Civil Code of Greece, art. 5].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. Ill 
 
 point to be decided by the lex rei sit(K is the character of the property, 
 that is, whether it be realty or not, for every nation may impress upon 
 property in its dominions any character it pleases (r). 
 
 The municipal laws of all European countries formerly 82. 
 prohibited aliens from holding real property within the terri- d'aubaine. 
 tory of the State. During the prevalence of the feudal 
 system, the acquisition of property in land involved the notion 
 of allegiance to the prince within whose dominions it lay, 
 which might be inconsistent with that which the proprietor 
 owed to his native sovereign. It was also during the same 
 rude ages that the jus albinagii or droit d'aubaine was 
 established ; by which all the property of a deceased foreigner 
 (movable or immovable), was confiscated to the use of the 
 State, to the exclusion of his heirs, whether claiming ab 
 intestato, or under a will of the decedent (s). In the progress 
 of civilization, this barbarous and inhospitable usage has 
 been, by degrees, almost entirely abolished. This improve- 
 ment has been accomplished either by municipal regulations, 
 or by international compacts founded upon the basis of 
 reciprocity. Previous to the French Revolution of 1789, the 
 droit d'aubaine had been either abolished or modified, by 
 treaties between France and other States ; and it was entirely 
 abrogated by a decree of the Constituent Assembly, in 1791, 
 with respect to all nations, without exception and without 
 regard to reciprocity. This gratuitous concession was re- 
 tracted, and the subject placed on its original footing of reci- 
 procity by the Code-Napoleon, in 1803 ; but this part of the 
 Civil Code was again repealed, by the Ordinance of the 14th 
 July, 1819, admitting foreigners to the right of possessing 
 both real and personal property in France, and of taking by 
 succession ab intestato, or by will, in the same manner with 
 native subjects (). 
 
 (r) [Story, 447]. 
 
 (s) Du Cange (Gloss. Med. JEvi, voce Albinagium et Albani) derives the 
 term from advencc. Other etymologists derive it from alibi nattts. During 
 the Middle Age, the Scots were called Albani in France, in common with all 
 other aliens ; and as the Gothic term Albanach is even now applied by the 
 Highlanders of Scotland to their race, it may have been transferred by the 
 continental nations to all foreigners. 
 
 (t) Rotteck und Welcker, Staats-Lexicon, art. OastrccJit, Band 6, 302. 
 Vattel, liv. ii. ch. viii. 112114. Kliiber, Droit des Gens, Pt. II. tit. 1, 
 ch. ii. 32, 33. Von Mayer, Corp. Jur. Confod. Germanicfe, torn. ii. p. 17. 
 Merlin, Repertoire, tit. Aubaine.
 
 112 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 The analogous usage of the droit de detraction, or droit de 
 retraite (jus detractus), by which a tax was levied upon the 
 removal from one State to another of property acquired by suc- 
 cession or testamentary disposition, has also been reciprocally 
 abolished in most civilized countries. 
 
 The stipulations contained in the treaties of 1778 and 1800, 
 between the United States and France, for the mutual aboli- 
 tion of the droit d'aubaine and the droit de detraction between 
 the two countries, have expired with those treaties ; and the 
 provision in the treaty of 1794, between the United States 
 and Great Britain, by which the citizens and subjects of the 
 two countries, who then held lands within their respective 
 territories, were to continue to hold them according to the 
 nature and tenure of their respective estates and titles 
 therein, was limited to titles existing at the signature of the 
 treaty, and is rapidly becoming obsolete by the lapse of 
 time (u). But by the stipulations contained in a great number 
 of subsisting treaties, between the United States and various 
 powers of Europe and America, it is provided, that "where 
 on the death of any person holding real estate within the 
 territories of the one party, such real estate would, by the 
 laws of the land, descend on a citizen or subject of the other, 
 were he not disqualified by alienage, such citizen or subject 
 shall be allowed a reasonable time to sell the same, and to 
 withdraw the proceeds without molestation, and exempt from 
 all duties of detraction on the part of the government of the 
 respective States (x). 
 
 82a. It is only of late years that the right of holding lands on the same 
 
 Rights of conditions as subjects, has been conceded to foreigners by most 
 
 takMands countries - ^ n Belgium this was effected by the law of the 27th 
 
 in various * April, 1865 (y). Russia conceded the privilege in 1860 (). 
 
 States. Some of the Swiss cantons do not even now permit foreigners to 
 
 hold real property without the express permission of the Cantonal 
 
 Government, unless there be a treaty to that effect (a). Austria (b), 
 
 (u) Kent's Comm. vol. ii. pp. 6769 (6th ed. ). 
 
 (x) Treaty of 1828 between the United States and Prussia, art. 14. Elliott, 
 Am. Diplom. Code, vol. i. p. 388. [See U. S. Diplom. Cor. 1873, vol. ii 
 p. 1415]. 
 
 (y) [Report of Naturalization Commission, 1869, p. 1151. 
 
 (2] [Ibid. p. 128]. 
 
 (a) [Ibid. p. 131]. 
 
 (l>) [Civil Code of Austria, 33].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 113 
 
 the Netherlands (c), and Sweden (d), only "accord the right on con- 
 dition of reciprocity in the foreigner's country. The constitution of 
 the German Empire provides, that every person belonging to one of 
 the confederated States is to be treated in every other of the confederated 
 States as a born native, and to be permitted to acquire real estate (e). 
 But as regards other countries, the laws of Bavaria, Prussia, Saxony, 
 and Wurteinburg, exact for their own subjects, when abroad, the same 
 rights they extend to foreigners in their own dominions (/). In Italy, 
 Denmark, and Greece, aliens are under no disabilities in this respect (</). 
 The ownership of land in the United States is regulated by the laws of 
 each individual State of the Union. Some States impose no restrictions 
 on foreigners (h) ; others require residence and an oath of allegiance (i) ; 
 in others a declaration of an intention to become a naturalized citizen of 
 the United States is necessary (k). Feudal principles were maintained 
 so long in England, that until the year 1870 an alien was incapable of 
 holding land for more than twenty-one years, that is, he could not pur- 
 chase a freehold. This, however, was remedied by the Naturalization 
 Act, 1870 (I), which relieved aliens of most of their disabilities, and as 
 regards land, placed them on the same footing as subjects (m). 
 
 There is no uniform rule among nations by which the nationality of a g g2b 
 person may be determined from the place of his birth. England and Effect of 
 America claim all who are born within their dominions, as natural born birth in 
 subjects or citizens, whatever may have been the parents' nationality (ri). Carious 
 A child born in Denmark is considered a Dane while he remains in the 
 country (o). Birth in Portugal confers Portuguese nationality, unless 
 the father was at the time in the service of a foreign State, or unless the 
 child formally renounces it (p). 
 
 Complete Dutch nationality is acquired by birth in Holland, if the 
 parents are established there (q). In Italy, when an alien has estab- 
 lished his domicile in the Kingdom uninterruptedly for ten years, his 
 child is considered a citizen, but residence for commercial purposes does 
 not suffice to confer this status (r). If a child is born in any other 
 
 (c) [Civil Code of the Netherlands, 884, 957]. 
 
 (d) [Swedish Statute of Inheritance, " Arfda Balken," ch. 15, 2]. 
 
 (e) [Art. iii. Hertslet, Map of Europe, vol. iii. p. 1931]. 
 
 (/) [Report of Naturalization Commission, 1869, pp. 114, 124, 129, 138]. 
 
 (a) [Ibid. p. 116. Italian Civil Code, Art. iii. Civil Code of Greece, 
 Art. 5]. 
 
 (h) [Ohio, Michigan, Illinois]. 
 
 (i) [Vermont, N. and S. Carolina]. 
 
 (k) [Connecticut, Maine, Delaware, Maryland, Virginia, Tennessee, Arkansas, 
 Indiana, Missouri. See Rep. of Nat. Comm. p. 131 ; and U. S. Diplom. 
 Cor., 1873, p. 1414]. 
 
 (1) [33 & 34 Viet. c. 14, s. 2. See Appendix A]. 
 
 (TO) [As to British colonies and dependencies, see Rep. of Nat. Comm. 
 1869, p. 137]. 
 
 (n) [Calvin's case, 2 State Tr. 639 ; Donegani v. Donegani, 3 Knapp, P. C. 
 63 ; Re Adam, 1 Moo. P. C. 460. Fourteenth Amendment to U. S. Constitu- 
 tion, U. S. Statutes at Large, vol. xv. p. 706]. 
 
 (o) [G. Brock to Sir C. L. Wyke, 26th July, 1868, Nat. Comm. Rep. 
 p. 143]. 
 
 (p) [Civil Code of Portugal, tit. iii. art. 18, No. 2]. 
 
 (q) [Law of 28th July, 1850, F. O. No. 44, art. 1]. 
 (r) [Civil Code of Italy, lib. i. tit. i. art. 8J.
 
 114 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 'European country, lie does not acquire its national character, but follows 
 that of his father, if legitimate, and that of his mother, if illegitimate (s). 
 However, in Baden (t), Belgium (), France (x), Greece (?/), and Spain 
 (), children of alien parents born there, are enabled to acquire the 
 nationality of the country by a declaration made within a year of their 
 coming of age, of their wish to do so. The French law has a further 
 provision, that if the alien father was himself born in France, his child 
 is considered a Frenchman, unless, within the same period, he makes a 
 declaration of his wish to be a foreigner (a). 
 
 83. As to personal property, the lex domicilu of its owner pre- 
 
 rifii 1 ' vails over the law of the country where such property is 
 situated, so far as respects the rule of inheritance : Mobilia 
 ossibus inhterent, personam sequuntur. Thus the law of the 
 place, where the owner of personal property was domiciled at 
 the time of his decease, governs the succession ab intestato as 
 to his personal effects wherever they may be situated (6). Yet 
 it had once been doubted, how far a British subject could, by 
 changing his native domicile for a foreign domicile without 
 the British empire, change the rule of succession to his per- 
 sonal property in Great Britain ; though it was admitted that 
 a change of domicile, within the empire, as from England to 
 Scotland, would have that effect (c). But these doubts have 
 been overruled in a more recent decision, by the Court of 
 Delegates in England establishing the law, that the actual 
 foreign domicile of a British subject is exclusively to govern, 
 in respect to his testamentary disposition of personal property, 
 as it would in the case of a mere foreigner (d). 
 
 So also the law of a place where any instrument, relating 
 to personal property, is executed, by a party domiciled in that 
 place, governs, as to the external form, the interpretation, and 
 
 (s) [Rep. of Nat. Comin. pp. 141149]. 
 
 (t) [Baden Landrecht, 'art. 9]. 
 
 () [Civil Code of Belgium, art. 9. Law of 27th Sept. 1835, art. 2]. 
 
 (b) Huberus, Praelect., torn. ii. lib. i. tit. 3, de Conflict. Leg. 14, 15. 
 Byukershoek, Qusest. Jur. Pub. lib. i. cap. 16. See also an opinion given by 
 Grotius as counsel in 1613, Henry's Foreign Law, App. p. 196. Merlin, 
 Repertoire, tit. Loi, 6, No. 'A. Fcelix, Droit International Prive, 37. 
 
 (c) Per Sir J. Nicholl, in Curling v. Thornton, 2 Addams' Eccles. Rep p. 17. 
 [Wharton, 585]. 
 
 (d) Stanley v. Bernes, 3 Haggard. Ecclea. pp. 393 465; Moore v. Davell, 
 4 ibid. 346, 354. [Per Lord Westbury in Attorney-General v. Campbell, 
 L. E. 5H. L. 529].
 
 KlGHTS OF CIVIL AND CRIMINAL LEGISLATION. 115 
 
 the effect of the instrument : Locus regit actum. Thus a 
 testament of personal property, if executed according to the 
 formalities required by the law of the place where it is made, 
 and where the party making it was domiciled at the time of 
 its execution, is valid in every other country, and is to be in- 
 terpreted and given effect to according to the lex loci. 
 
 This principle, laid down by all the text-writers, was 
 recently recognized in England in a case where a native of 
 Scotland, domiciled in India, but who possessed heritable 
 bonds in Scotland, as well as personal property there, and also 
 in India, having executed a will in India, ineffectual to convey 
 Scottish heritage ; and a question having arisen whether his 
 heir-at-law (who claimed the heritable bonds as heir) was also 
 entitled to a share of the moveable property as legatee under 
 the will. It was held by Lord Chancellor Brougham, in de- 
 livering the judgment of the House of Lords, affirming that 
 of the Court below, that the construction of the will, and the 
 legal consequences of that construction, must be determined 
 by the law of the land where it was made, and where the 
 testator had his domicile, that is to say, by the law of England 
 prevailing in that country ; and this, although the will was 
 made the subject of judicial inquiry in the tribunals of 
 Scotland ; for these Courts also are bound to decide accord- 
 ing to the law of the place where the will was made (e). 
 
 The law of the domicile only regulates universal assignments of 83a. 
 
 moveable property, as on marriage or death, and because this is the j he ? e ? 7 .. 
 
 , , . , . , j . . domtciln 
 
 only source from which a rule common to property situated in various on } y regu . 
 
 countries can be derived. But when the title to a particular chattel is lates uni- 
 concerned, in a case not involving any universal assignment, the law of versal suc- 
 its situation is absolute (/). In England no change of domicile will 
 avoid or affect a will which was valid by the law of the testator's domicile 
 at the time of its execution (g}. Some of the United States have adopted to 
 a different rule. Thus, in New York the law of the testator's last 
 domicile is held to govern the will (h). The payment of succession duty 
 is regulated by the lex domicilii (i). 
 
 (e) Trotter v. Trotter, 3 Wilson & Shaw, 407. 
 
 (/) [Cammel v. Sewell, 5 H. & N. 728. See as to powers of appointment 
 respecting property in a foreign country, Tatnall v. Hankey, 2 Moo. P. C. 
 342]. 
 
 (g) [24 & 25 Viet. c. 114, s. 3], 
 
 (h) [Moultrie v. Hunt, 23 N. Y. 394 ; Wharton, 586a]. 
 
 (i) [Wallace v. Attorney- General, L. R., 1 Oh. 1 ; Attorney- General v. 
 Campbell, L. R. 5 H. L. 524]. 
 
 i 2
 
 116 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 83b. 
 Testament- 
 ary domi- 
 cile of 
 British sub- 
 jects 
 
 abroad and 
 of foreign- 
 ers in Eng- 
 land. 
 
 Wills of 
 
 British 
 
 subjects 
 
 made 
 
 abroad. 
 
 Wills made 
 in Eng- 
 land. 
 
 It has been provided by Act of Parliament that whenever Her 
 Majesty shall have entered into a convention with any foreign State for 
 the purpose, no British subject resident at the time of his death in such 
 foreign State, shall be deemed, under any circumstances, to have acquired 
 a domicile there, unless the British subject shall have resided there for 
 one year immediately preceding his death, and shall have made and 
 deposited in a public office of such foreign country a declaration in 
 writing of his intention to become domiciled in such foreign country. 
 Without this declaration he shall be deemed, for all purposes of testate 
 or intestate succession as to moveables, to retain the domicile, he pos- 
 sessed at the time of going to reside in the foreign country (7c). The 
 converse case of foreigners, with whose country England has a conven- 
 tion, dying in England is provided for in the same way ; that is, they 
 are not to be deemed to have acquired a British domicile for testa- 
 mentary purposes, except under the conditions stated (I). This Act 
 does not apply to foreigners who have been naturalized in British 
 dominions (m). It does not appear that any conventions have been 
 made under this Act, and it has therefore been at present inoperative (ri). 
 
 Another statute of the same year provides that, " Every will or 
 other testamentary disposition made out of the United Kingdom by 
 a British subject (whatever may be the domicile of such person at 
 the time of making the same, or at the time of his or her death) 
 shall, as regards personal estate, be deemed to be well executed for 
 the purpose of being admitted in England and Ireland to probate, 
 and in Scotland to confirmation, if the same be made according to the 
 forms required, either by the law of the place where the same was 
 made, or by the law of the place where such person was domiciled 
 when the same was made, or by the laws then in force in that part of 
 Her Majesty's dominions where he had his domicile of origin " (o). In 
 1874 Lacroix, a Frenchman by birth, but naturalized in England, made 
 a will in Paris in the English form, relating to his property in England 
 only. By the law of France, the will of a naturalized British subject 
 made in France according to the forms required by the law of England, 
 is valid in France, whatever may be the domicile of the testator at the 
 time of his death, or at the time of making the will. The will of 
 Lacroix was therefore admitted to probate under this statute, as being 
 valid according to the law of the place where it was made (p). The 
 same statute provides that " Every will or other testamentary instru- 
 ment made within the United Kingdom by any British subject (what- 
 ever may be the domicile of such person at the time of making the same, 
 or at the time of his or her death) shall, as regards personal estate, be 
 held to be well executed, and shall be admitted in England and Ireland 
 to probate, and in Scotland to confirmation, if the same be executed 
 according to the forms required by the laws for the time being in force 
 
 (jfc) [24 & 25 Viet. c. 121, s. 1]. 
 
 (1) [Ibid. s. 2]. 
 
 (m) [Ibid. s. 3]. 
 
 (n) [Williams on Executors, vol. ii. p. 1524 (7th ed.), note ()] 
 
 (o) [24 & 25 Viet. c. 114, s. 1]. 
 
 (p) [In the goods of Lacroix, 2 P. D. 95].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 117 
 
 in that part of the United Kingom where the same is made " (q). Under 
 this section the will of an Italian who was naturalized in England, who 
 made his will in England, and then returned to and was domiciled in Italy 
 at the time of his death, was admitted to probate in England. The 
 section was held to apply equally to native born as to naturalized 
 British subjects (r). 
 
 The sovereign power of municipal legislation also extends 84 - 
 to the regulation of the personal rights of the citizens of status. 
 the State, and to every thing affecting their civil state and 
 condition. 
 
 It extends (with certain exceptions) to the supreme police 
 over all persons within the territory, whether citizens or not, 
 and to all criminal offences committed by them within the 
 same (s). 
 
 Some of these exceptions arise from the positive law of 
 nations, others are the effect of special compact. 
 
 There are also, certain cases where the municipal laws of 
 the State, civil and criminal, operate beyond its territorial 
 jurisdiction. These are, 
 
 I. Laws relating to the state and capacity of persons. Laws re- 
 
 in general, the laws of the State, applicable to the civil ^^fate 
 condition and personal capacity of its citizens, operate upon and capa- 
 them even when resident in a foreign country. 
 
 Such are those universal personal qualities which take effect P erate 
 either from birth, such as citizenship, legitimacy, and illegi- torially. 
 timacy ; at a fixed time after birth, as minority and majority ; 
 or at an indeterminate time after birth, as idiocy and lunacy, 
 bankruptcy, marriage, and divorce, ascertained by the judg- 
 ment of a competent tribunal. The laws of the State affect- 
 ing all these personal qualities of its subjects travel with them 
 wherever they go, and attach to them in whatever country they 
 are resident (t). 
 
 (q) [24 & 25 Viet. c. 114, s. 2]. 
 
 (?) [In the goods of Gaily, 1 P. D. 438]. 
 
 (s) " Leges cujusque imperil vim habent intraternrinos ejusdem reipublica;, 
 omnesque ei subjectos obligant, nee ultra. Pro subjectis imperio hubendi 
 sunt omnes, qui intra terminos ejusdem rejieriuritur, sive in perpetuum, sive 
 ad tempus ibi coinmorentur." Huberus, torn. ii. liv. i. tit. 3, de Conflict. 
 Leg. 2. 
 
 (t) Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, 1. Frelix, Droit 
 International Prive, liv. i. tit. i. 31. " Qualitates persouales certo loco 
 alicui jure impresses, ubique circumferri et personam comitari, cum hoc 
 effectu, ut ubivis locorum no jure, quo tales personse alibi gaudent vel sub- 
 jecti sunt, frnantur et subjiciantur." Huberus, torn. ii. 1. i. tit. 3, de Con- 
 flict. Leg. 12.
 
 118 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 This general rule is, however, subject to the following ex- 
 ceptions : 
 
 85. 1. To the right of every independent sovereign State to 
 
 ti ^ ura lza " naturalize foreigners and to confer upon them the privileges 
 of their acquired domicile. 
 
 Even supposing a natural-born subject of one country 
 cannot throw off his primitive allegiance, so as to cease to be 
 responsible for criminal acts against his native country, it has 
 been determined, both in Great Britain and the United States, 
 that he may become by residence and naturalization in a 
 foreign State entitled to all the commercial privileges of his 
 acquired domicile and citizenship. Thus by the treaty of 
 1794, between the United States and Great Britain, the trade 
 to the countries beyond the Cape of Good Hope, within the 
 limits of the East India Company's Charter, was opened to 
 American citizens, whilst it still continued prohibited to 
 British subjects : it was held by the Court of King's Bench 
 that a natural-born British subject might become a citizen of 
 the United States, and be entitled to all the advantages of 
 trade conceded between his native country and that foreign 
 country ; and that the circumstance of his returning to his 
 native country for a mere temporary purpose would not deprive 
 him of those advantages (u). 
 
 86. 2. The sovereign right of every independent State to regu- 
 
 of property late the property within its territory constitutes another excep- 
 
 tl0n t0 the rule< 
 
 Thus, the personal capacity to contract a marriage, as to 
 
 age, consent of parents, &c., is regulated by the law of the 
 State of which the party is a subject ; but the effects of a 
 nuptial contract upon real property (immobilia) in another 
 State are determined by the lex loci rei sites. Huberus, 
 indeed, lays down the contrary doctrine, upon the ground that 
 the foreign law, in this case, does not affect the territory im- 
 mediately, but only in an incidental manner, and that by the 
 implied consent of the sovereign, for the benefit of his sub- 
 jects, without prejudicing his or their rights. But the practice 
 of nations is certainly different, and therefore no such consent 
 can be implied to waive the local law which has impressed 
 
 (it) Wilsvn v. Marryalt, 1 Bos. & Pull. 43 ; 7 T. R. 31. [See further on 
 this subject at the end of the chapter].
 
 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 119 
 
 certain indelible qualities upon immoveable property, within 
 the territorial jurisdiction (x). 
 
 As to personal property (nwbilia) the lex loci contracts or 87. 
 lex domicilii may, in certain cases, prevail over that of the property, 
 place where the property is situated. Huberus holds that 
 not only the marriage contract itself, duly celebrated in a 
 given place, is valid in all other places, but that the rights 
 and effects of the contract, as depending upon the lex loci, 
 are to be equally in force everywhere (y). If this rule be con- 
 fined to personal property, it may be considered as confirmed 
 by the unanimous authority of the public jurists, who unite 
 in maintaining the doctrine that the incidents and effects of 
 the marriage upon the property of the parties, wherever 
 situated, are to be governed by the law of the matrimonial 
 domicile, in the absence of any other positive nuptial con- 
 tract (z). But if there be an express ante-nuptial contract, 
 the rights of the parties under it are to be governed by the 
 lex loci contract us (a). 
 
 The matrimonial domicile has been defined to be the domicile first 87a. 
 established by the husband and wife together ; or, if none such be Matri- 
 establishecl, it is that of the husband at the time of the marriage (6). J^^ 
 '' The marriage contract," said Lord Brougham, " is emphatically one 
 which parties make with an immediate view to the usual place of their 
 residence " (c). The matrimonial domicile is not changed by an aban- 
 donment of one party by the other (d). It seems firmly established 
 that the law of the matrimonial domicile will always govern personal 
 property acquired before marriage (e] ; and instruments relating to it, 
 euch as marriage settlements, are to be construed according to that 
 law (/). But when the matrimonial domicile is changed after mar- 
 riage, there is a difference of opinion as to what effect this will have 
 
 (a;) Kent, Comment, vol. ii. pp. 182, 186 n. (5th edit). 
 
 (y) " Porro, non tantum ipsi con tract us ipsseque miptia 1 , certis locis rite 
 celebratse, ubique pro justis ct'validis habentur ; sed etiain jura et eil'ecta 
 contractuum nuptiaruiiique, in iis locis recepta, ubique vim suani obtinebunt. " 
 Huberus, ]. i. tit. 3, de Conflict. Leg. 9. 
 
 (z) Fcelix, 66. [Westlake, 366. Field, International Code, 575.] 
 
 (a) lie. Couche v. Savetier, 3 Johnson, Ch. Rep. 211. 
 
 (b) [Field, International Code, 577 (2nd ed.). Story, Conflict of Laws, 
 193. Wharton, 190]. 
 
 (c) [Warrender v. H'arrender, 2 Cl. & Fin. 488]. 
 
 (d) [Bonati v. Welsh, 24 New York, 157. See Le Suctir v. Le Sivur, 
 1 P. D. 139]. 
 
 (e) [Phillimore, vol. iv. 445. Watts v. Schrimpton, 21 Beavan, 97 ; 
 Wright's Trusts, 2 K. & J. 5U5. Westlake, 366]. 
 
 (/) [Anstruther v. Adair, 2 Mylne & K. 513 ; Este v. Smith, 18 Beavau, 
 112 ; Saul v. His Creditors, 5 Martin, N. S. 569 ; De Lane v. Moore, 
 14 Howard, 253].
 
 120 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 upon personal property acquired after mich change of domicile. Story- 
 lays it down that when there has been a change, the law of the actual, and 
 not of matrimonial, domicile will govern as to all future acquisitions of 
 personal property, if the laws of the place where the rights are sought 
 to be enforced do not prohibit such arrangements (<?). On the other 
 hand, the French Court of Cassation decided, in 1854, that the rights of 
 the parties were, in such a case, governed by the law of the original 
 matrimonial domicile (Ji). 
 
 88. By the general international law of Europe and America, a 
 
 bankrupt certificate of discharge obtained by a bankrupt in the country 
 discharge O f which he is a subject, and where the contract was made 
 of assignees an d the parties domiciled is valid to discharge the debtor in 
 cou a nt ther ever y otner country; but the opinions of jurists and the 
 practice of nations have been much divided upon the question, 
 how far the title of his assignees or syndics will control his 
 personal property situated in a foreign country, and prevent 
 its being attached and distributed under the local laws in a 
 different course from that prescribed by the bankrupt code of 
 his own country. According to the law of most European 
 countries, the proceeding which is commenced in the country 
 of the bankrupt's domicile draws to itself the exclusive right 
 to take and distribute the property. The rule thus estab- 
 lished is rested upon the general principle that personal 
 (or moveable) property is, by a legal fiction, considered as 
 situated in the country where the bankrupt had his domicile. 
 But the principles of jurisprudence, as adopted in the United 
 States, consider the lex loci rei sitce as prevailing over the lex 
 domicilii in respect to creditors, and that the laws of other 
 States cannot be permitted to have an extra-territorial opera- 
 tion to the prejudice of the authority, rights, and interests of 
 the State where the property lies. The Supreme Court of 
 the United States has therefore determined, that both the 
 government under its prerogative priority, and private creditors 
 attaching under the local laws, are to be preferred to the claim 
 of the assignees for the benefit of the general creditors under 
 a foreign bankrupt law, although the debtor was domiciled and 
 the contract made^in a foreign country (i). 
 
 (y) [Conflict of Laws, 187. Burge, Col. and For. Laws, pt. i, ch. 7, 8. 
 Wharton, 198] 
 
 (h) [Foelix, p. 91. This is approved of by Sir R. Phillimore, vol. iv. 
 447]. 
 
 (i) Bell's Commentaries on the Law of Scotland, vol. ii. pp. 681687.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 121 
 
 8. The general rule as to the application of personal sta- Th ^ oci 
 tutes yields in some cases to the operation of the lex loci contracts 
 
 ***,.. *ar 
 
 Thus a bankrupt's certificate under the laws of his own to this rule, 
 country cannot operate in another State, to discharge him 
 from his debts contracted with foreigners in a foreign coun- 
 try (k). And though the personal capacity to enter into the 
 nuptial contract as to age, consent of parents, and prohibited 
 degrees of affinity, &c., is generally to be governed by the law 
 of the State of which the party is a subject, the marriage 
 ceremony is always regulated by the law of the place where it 
 is celebrated ; and if valid there, it is considered as valid 
 everywhere else, unless made in fraud of the laws of the 
 country of which the parties are domiciled subjects. 
 
 II. The municipal laws of the State may also operate r j 90 ; 
 
 Lex loci 
 beyond its territorial jurisdiction, where a contract made contract. 
 
 within the territory comes either directly or incidentally in 
 question in the judicial tribunals of a foreign State. 
 
 A contract, valid by the law of the place where it is made, 
 is, generally speaking, valid everywhere else. The general 
 comity and mutual convenience of nations have established 
 the rule, that the law of that place governs in every thing 
 respecting the form, interpretation, obligation, and effect of 
 the contract, wherever the authority, rights, and interests of 
 other States and their citizens are not thereby prejudiced (I). 
 
 This qualification of the rule suggests the exceptions which 91- 
 arise to its application. And, to its' I0 
 
 1. It cannot apply to cases properly governed by the lex loci operation. 
 rei slice, (as in the case, before put, of the effect of a nuptial 
 contract upon real property in a foreign State), or by the laws 
 of another State relating to the personal state and capacity of 
 its citizens. 
 
 Rose's Cases in Bankruptcy, vol. i. p. 462. Kent's Comment, vol. ii. pp. 393, 
 404408, 459 (5th edit.). Harrison v. Sterry, 5 Cranch, 289; Ogden v. 
 Saunders, 12 Wheaton, 153. [Westlake, ch. ix. Story, 403415]. 
 
 (k) [Phillips v. Allen, 8 B. & C. 477]. 
 
 (?) " Rectores imperiorum id comiter agnnt, ut jura cujusqne populi intra 
 tenninos ejus exercita, teneant ubique suam vim, quatenus hihil potestati aut 
 juri alterius imperantis ejusque civium pnejudicitur." Huberus, 1. i. tit. 3, 
 de Conflict. I^eg. 2. " Effecta contractuum, certo loco initorum, pro jure 
 loci illius alibi quoque observantur, si nullum hide civibus alienis creetur 
 
 frsejudicium, injure sibi quiesito." Ibid. 11. [Dmi v. Lippman, 5 Cl. & 
 in. 1 ; Fcrgusson v. Fyffe, 8 ibid. 121 ; P. <k 0. Steam Navigation Co. v. 
 Shand, 3 Moo. P. C. N/S. 372. Forsyth, Cases and Opinions, 239].
 
 122 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 2. It cannot apply where it would injuriously conflict with 
 the laws of another State relating to its police, its public 
 health, its commerce, its revenue, and generally its sovereign 
 authority, and the rights and interests of its citizens. 
 
 Thus, if goods are sold in a place where they are not pro- 
 hibited, to be delivered in a place where they are prohibited, 
 although the trade is perfectly lawful by the lex loci contract us, 
 the price cannot be recovered in the State where the goods are 
 deliverable, because to enforce the contract there would be to 
 sanction a breach of its own commercial laws. But the 
 tribunals of one country do not take notice of, or enforce, 
 either directly or incidentally, the laws of trade or revenue of 
 another State, and therefore an insurance of prohibited trade 
 may be enforced in the tribunals of any other country than 
 that where it is prohibited by the local laws (m). 
 92. Huberus holds that the contract of marriage is to be 
 
 marrkges. governed by the law of the place where it is celebrated, 
 excepting fraudulent evasions of the law of the State to which 
 the party is subject (n). Such are marriages contracted in a 
 foreign State, and according to its laws, by persons who are 
 minors, or otherwise incapable of contracting, by the law of 
 
 English their own country. But according to the international mar- 
 riage law of the British Empire, a clandestine marriage in 
 Scotland, of parties originally domiciled in England, who 
 resort to Scotland, for the sole purpose of evading the English 
 marriage act, requiring the consent of parents or guardians, 
 
 (m) Pardessus, Droit Commercial, pt. vi, tit. 7, ch. 2, 3. Emerigou, 
 Traite d'Assurance, torn. i. pp. 212 215. Park on Insurance, p. 341, 
 6th ed. The moral equity of this rule has been strongly questioned by 
 Bynkershoek and Pothier. [Also by Story, 257. We&tlake, 149. Hefl'ter, 
 36 ; but it is admitted to be correct] 
 
 (n) "Si licitum est, eo loco ubi contraetum et celebratum est, ubique 
 validum erit, effectumque habebit, sub eadem exceptione, prejudicii aliis non 
 creandi." Huberus, De Conflict. Leg. 1. i. tit. 3, 8. He puts, as an example 
 of this exception, the case of parties going into another country, merely to 
 evade the law of their own, as to majority and guardianship. "Saepe fit, 
 adolescentes sub curatoribus agentes, furtivos amores nuptiis conglutinare 
 cupientes, abeant in Frisian! Orientalem, aliave loca, in quibus curatorum 
 consensus ad matrimonium ton requiritur, juxta leges Romanas, quae apud 
 nos hac parte cessant. Celebrant ibi matrimonium, et mox redeunt in 
 patriam. Ego ita existimo, hanc rem manifesto pertinere ad eversionem 
 juris nostri ; et ideo non esse magistrates, huic obligates e jure gentium, 
 ejusmodi nuptias agnoscere et ratas habere. Multoque magis statueudum est, 
 eos contra jus gentium facere videri, qui civibus alieni imperii sua facilitate, 
 jus patiiis legibus contrarium, bcientes, volentes, impertiuntur." De Con- 
 flict. Leg. Idem.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 123 
 
 is considered valid in the English Ecclesiastical Courts. This 
 jurisprudence is said to have been adopted upon the ground 
 of its being a part of the general law and practice of Chris- 
 tendom, and that infinite confusion and mischief would ensue, 
 with respect to legitimacy, succession, and other personal and 
 proprietary rights, if the validity of the marriage contract 
 was not determined by the law of the place where it was 
 made. The same principle has been recognized between the 
 different States of the American Union, upon similar grounds 
 of public policy (o). 
 
 On the other hand, the age of consent required by the French 
 French Civil Code is considered, by the law of France, as a 
 personal quality of French subjects, following them wherever 
 they remove ; and, consequently, a marriage by a Frenchman, 
 within the required age, will not be regarded as valid by 
 the French tribunals, though the parties may have been above 
 the age required by the law of the place where it was 
 contracted (p). 
 
 3. Wherever, from the nature of the contract itself, or the 93, 
 law of the place where it is made, or the expressed intention t ^^f 
 of the parties, the contract is to be executed in another coun- contract in 
 try, everything which concerns its execution is to be deter- country, 
 mined by the law of that country. Those writers who affirm 
 that this exception extends to everything respecting the 
 nature, the validity, and the interpretation, appear to have 
 erred in supposing that the authorities are at variance on this 
 question. They will be found, on a critical examination, to 
 establish the distinction between what relates to the validity 
 and interpretation, and what relates to the execution of the 
 contract. By the usage of nations, the former is to be deter- 
 mined by the lex loci contractus, the latter by the law of the 
 place where it is to be carried into execution (q). 
 
 " There can be no doubt," said Lord Campbell, " of the general rule 93a. 
 
 that a foreign marriage, valid according to the law of a country where The law of 
 
 it is celebrated, is good everywhere. But while the forms of entering c ^ e j. 1 " 
 
 into the contract of marriage are to be regulated by the lex loci contractus, i a t e s the 
 
 (o) Haggard's Consist. Rep. vol. ii. pp. 428433. Kent's Commentaries, 
 vol. ii. p. 93. 
 
 (p) Merlin, Repertoire, tit. Loi, 6. Toullier, Droit Fran9ais, torn. i. 
 No. 118, 576. [Simonin v. Mallac, 2 Swa. & Tr. 62]. 
 
 (q) [Foelix, Droit International Prive, 74]..
 
 124 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 capacity of 
 the parties 
 to marry. 
 
 Brook v. 
 Brook. 
 
 93b. 
 
 Polyga- 
 mous and 
 incestuous 
 marriages. 
 
 the law of the country in which it is celebrated, the essentials of the 
 contract depend upon the lex domicilii. the law of the country in which 
 the parties are domiciled at the time of the marriage, and in which the 
 matrimonial residence is contemplated. Although the forms of cele- 
 brating the foreign marriage may be different from those required by 
 the law of the country of domicile, the marriage may be good every- 
 where. But if the contract of marriage is such, in essentials, as to be 
 contrary to the law of the country of domicile, and it is declared void by 
 that law, it is to be regarded as void in the country of domicile, though 
 not contrary to the law of the country in which it was celebrated (r). 
 It is quite obvious that no civilized State can allow its subjects or 
 citizens, by making a temporary visit to a foreign country to enter into 
 a contract, to be performed in the place of domicile, if the contract is 
 forbidden by the law of the place of domicile as contrary to religion, 
 or morality, or any of its fundamental institutions. 
 
 In 1840, W. L. Brook married Charlotte Armitage'in England. In 
 1847, Mrs. Brook died, and in 1850 W. L. Brook married Emily 
 Armitage, the lawful sister of his deceased wife, at Wandsbeck, in 
 Denmark, according to the laws of Denmark. At the time of the 
 marriage Brook and Emily Armitage were domiciled in England, and 
 had merely gone to Denmark on a temporary visit. The question arose 
 whether this marriage could be recognized as valid in England. The law of 
 Denmark does not prohibit the marriage of a widower with his deceased 
 wife's sister, but the law of England does (s). The House of Lords 
 held that the parties, being at the time domiciled in England, their 
 capacity to marry, and the consequent validity of their marriage, was 
 to be decided by English law. " A marriage between a man and the 
 sister of his deceased wife," said Lord Campbell, " being Danish subjects 
 domiciled in Denmark, may be good all over the world, and this might 
 likewise be so even if they were native born English subjects, who had 
 abandoned their English domicile and were domiciled in Denmark. 
 But I am by no means prepared to say that the marriage now in question 
 ought to be, or would be, held valid in the Danish courts, proof being 
 given that the parties were British subjects domiciled in England, that 
 England was to be their matrimonial residence, and that by the law of 
 England such a marriage is prohibited as being contrary to the law of 
 God " (t). Every State has a perfect right to decide what marriages it 
 will deem contra bonos mores, and what marriages it will prohibit within 
 its jurisdiction. If such marriages are entered into abroad by its 
 domiciled subjects, their validity will not be recognized in the State 
 prohibiting them. 
 
 When a marriage is polygamous or incestuous by the law of the 
 place where it is drawn in question, its validity will not be recognized 
 in such place, although the marriage may have been lawful where 
 celebrated. There can be no question as to what is a polygamous 
 marriage. Marriage, as understood in Christendom, has been denned 
 
 (r) [Brook v. Brook, 9 H. of L. Cas. 207 ; Sottomayor v. De Barros, 
 3RD. . See also, Simonin v. Mallac, 2 Sw. & Tr. 67]. 
 
 (s) [Hill v. Good, Vaughan, 302 ; R. v. Chadwick, 11 Q. B. 173, 205]. 
 (t) [Brook v. Brook, 9 H. of L. Cas. 212].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 125 
 
 to be the voluntary union for life of one man and one woman, to the 
 exclusion of all others (it). In 1866 Lord Penzance refused to recognize 
 a Monnan marriage as valid in England. The marriage was a species 
 of compact entered into between the parties in Utah, but it was such 
 that the law of England could not take notice of it, so as to decree a 
 restitution of conjugal rights (x). But what amounts to an incestuous 
 marriage is by no means so clear. Marriages between blood relations 
 in the lineal ascending or descending line, and marriages between 
 brother and sister in the collateral line, whether of the whole or of the 
 half-blood, are universally regarded as incestuous (y). Beyond this there 
 is no rule upon which nations are agreed. 
 
 As regards clandestine Scotch marriages, it is now enacted that " no 93c. 
 irregular marriage contracted in Scotland by declaration, acknowledg- Clandestine 
 ment, or ceremony, shall be valid, unless one of the parties had at the ^riagea 
 date thereof his or her usual place of residence there, or had lived in 
 Scotland twenty-one days next preceding such marriage (). 
 
 4. As every sovereign State has the exclusive right of regu- 94. 
 lating the proceedings, in its own courts of justice, the lex loci Lex J n ' 
 contractus of another country cannot apply to such cases as 
 are properly to be determined by the lex fori of that State 
 where the contract is brought in question. 
 
 Thus, if a contract made in one country is attempted to be 
 enforced, or comes incidentally in question, in the judicial 
 tribunals of another, everything relating to the forms of 
 proceeding, the rules of evidence, and of limitation, (or 
 prescription,) is to be determined by the law of the State 
 where the suit is pending, not of that where the contract is 
 made (a). 
 
 III. The municipal institutions of a State may also operate 95. 
 beyond the limits of its territorial jurisdiction, in the follow- sovereign, 
 ing cases:- ^f- 
 
 1. The person of a foreign sovereign, going into the terri- army, or ^ 
 tory of another State, is, by the general usage and comity of ^ teni." 1 
 nations, exempt from the ordinary local jurisdiction. Repre- tor y f 
 senting the power, dignity, and all the sovereign attributes of state, 
 his own nation, and going into the territory of another State, 
 under the permission which (in time of peace) is implied from 
 
 (u) {Hyde v. Hyde, L. R. 1 P. & D. 130]. 
 
 (x) [Ibid.]. 
 
 (y) [Story, Conflict of Laws, 114. As to the marriage laws of the British 
 Empire, see Report of Royal Commission on the Marriage Laws, 1868]. 
 
 (z) [19 & 20 Viet. c. 96] 
 
 (a) Kent's Commentaries, vol. ii. p. 459 (5th ed.). Foelix, Droit Inter- 
 national Prive, 76. [Don v. Lippma/i, 5 Cl. & F. 1].
 
 126 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 the absence of any prohibition, he is not amenable to the civil 
 or criminal jurisdiction of the country where he temporarily 
 resides (/>). 
 
 2. The person of an ambassador, or other public minister, 
 whilst within the territory of the State to which he is dele- 
 gated, is also exempt from the local jurisdiction. His resi- 
 dence is considered as a continued residence in his own 
 country, and he retains his national character, unmixed with 
 that of the country where he locally resides (c). 
 
 3. A foreign army or fleet, marching through, sailing over, 
 or stationed in the territory of another State, with whom the 
 foreign sovereign to whom they belong is in amity, are also, 
 in like manner, exempt from the civil and criminal jurisdiction 
 of the place (d) . 
 
 If there be no express prohibition, the ports of a friendly 
 State are considered as open to the public armed and commis- 
 sioned ships belonging to another nation, with whom that 
 State is at peace. Such ships are exempt from the jurisdic- 
 tion of the local tribunals and authorities, whether they enter 
 the ports under the license implied from the absence of any 
 prohibition, or under an express permission stipulated by 
 treaty. But the private vessels of one State, entering the 
 ports of another, are not exempt from the local jurisdiction, 
 unless by express compact, and to the extent provided by such 
 compact (e). 
 
 96. The above principles, respecting the exemption of vessels 
 
 of 2%<T e belonging to a foreign nation from the local jurisdiction, were 
 
 Exchange, asserted by the Supreme Court of the United States, in the 
 
 celebrated case of The Exchange, a vessel which had originally 
 
 belonged to an American citizen, but had been seized and 
 
 confiscated at St. Sebastien, in Spain, and converted into a 
 
 public armed vessel by the Emperor Napoleon, in 1810, and 
 
 was reclaimed by the original owner, on her arrival in the 
 
 port of Philadelphia. 
 
 (b) Bynkershoek, de Foro Legat. cap. iii. 13, cap. ix. 10. 
 
 (c) Vide infra, pt. iii. ch. 1. 
 
 (d) " Exceptis tamen ducibus et generalibus, alicujus exercitus, vel classis 
 maritimae, vel ductoribus etiam alicujus navis militaris, nam isti in suos 
 milites, gentem, et naves, libere jurisdictionem sive voluntariam sive con- 
 tentiosam, sive civilem, sive criminalem, quod occupant tanquam in suo 
 proprio, exercere possunt," etc. Casaregis, Disc. 136, 174. 
 
 (e) [United States v. IMekelman, 2 Otto, 520].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 127 
 
 In delivering the judgment of the Court in this case, Mr. 
 Chief Justice Marshall stated that the jurisdiction of courts of 
 justice was a branch of that possessed 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 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 re- 
 striction. 
 
 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 could flow from no other 
 legitimate source. 
 
 This consent might be either express or implied. In the 
 latter case it is ' less determinate, exposed more to the 
 uncertainties 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 
 interchange of those good offices which humanity dictates and 
 its wants require, all sovereigns have consented to a relaxation 
 in practice, under certain peculiar circumstances, of that abso- 
 lute and complete jurisdiction, within their respective terri- 
 tories, which sovereignty confers. 
 
 This consent might, 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 territorial jurisdiction in a manner not consonant to the 
 usages and received obligations of the civilized world. 
 
 This perfect equality and absolute independence of sove- 
 reigns, and this common interest impelling them to mutual 
 intercourse, has given rise to a class of cases, in which every 
 sovereign is understood to waive the exercise of a part of that 
 complete, exclusive territorial jurisdiction, which has been 
 stated to be the attribute of every nation.
 
 128 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 97. 
 
 Exemption 
 of the 
 person of 
 the foreign 
 sovereign 
 from the 
 local juris- 
 diction. 
 
 98. 
 
 Exemption 
 of foreign 
 ministers 
 from the 
 local juris- 
 diction. 
 
 1. One of these was the exemption of the person 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 express 
 stipulation exempting his person from arrest, was universally 
 understood to imply such stipulation. 
 
 Why had the whole civilized world concurred in this con- 
 struction ? The answer could not be mistaken. A foreign 
 sovereign was not understood as intending to subject himself 
 to a jurisdiction incompatible with his dignity and the dignity 
 of his nation, and it was to avoid this subjection that the 
 license had been obtained. The character of the person to 
 whom it was given, and the object for which it was granted, 
 equally required that it should be construed to impart full 
 security to the person who had obtained it. This security, 
 however, need not be expressed ; it was 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 did not appear to be perfectly settled, 
 a decision of which was not necessary to any conclusion to 
 which the court might come in the case under considera- 
 tion. 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 themselves of a power over their equal, which a 
 romantic confidence in their magnanimity had placed in their 
 hands. 
 
 2. A second case, standing on the same principles with the 
 first, was the immunity which all civilized nations allow to 
 foreign ministers. 
 
 Whatever might be the principle on which this immunity 
 might be established, whether we consider the minister as in 
 the place of the sovereign 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 extra- territoriality could not be
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 129 
 
 erected and supported against the will of the sovereign of the 
 territory. He is supposed to assent to it. 
 
 This consent is not expressed. It was true that in some 
 countries, and in the United States 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 granting to a foreign minister a privilege 
 which he would not otherwise possess. The assent of the 
 local sovereign to the very important and extensive exemptions 
 from territorial jurisdiction which are admitted to attach to 
 foreign ministers, is implied from the consideration, that, 
 without such exemptions, every sovereign would hazard his 
 own dignity by employing a public minister abroad. His 
 minister 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 foreign power to the care of a person whom he has 
 selected for that purpose, cannot intend to subject his 
 minister in any degree to that power ; and, therefore, a con- 
 sent 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 public 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, was 
 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 forfeit the privileges annexed to his 
 character ; and the minister, by violating the conditions 
 under which he was received as the representative of a foreign 
 sovereign, has surrendered the immunities granted on those 
 conditions ; or, according to the true meaning of the original 
 consent, has ceased to be entitled to them. 
 
 3. A third case, in which a sovereign is understood to " 
 
 ..,.._.. Exemption 
 
 cede a portion of his territorial jurisdiction, was where he f rom the 
 allows the troops of a foreign prince to pass through his ^tion'of ~ 
 
 dominions. foreign 
 
 In such case, without any express declaration waiving i n t ^ r ough 
 jurisdiction over the army to which this right of passage has the t* 1 ""- 
 
 K
 
 130 EIGHTS OF CIVIL AND CKIMINAL LEGISLATION. 
 
 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 independent nation would be diverted from those 
 national objects and duties to which it was applicable, and 
 would be withdrawn from the control of the sovereign whose 
 power and whose safety might greatly depend on retaining the 
 exclusive command and disposition of this force. The grant 
 of a free passage, therefore, implies a waiver of all jurisdic- 
 tion over the troops during their passage, and permits the 
 foreign general to use that discipline and to inflict those 
 punishments which the government of his army may require. 
 
 But if, without such express permission, an army should 
 be led through the territories of a foreign prince, might the 
 territorial jurisdiction be rightfully exercised over the indi- 
 viduals composing that army ? 
 
 Without doubt, a military force can never gain immunities 
 of any other description than those which war gives, by enter- 
 ing 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 dis- 
 tinction between such general permission 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, conferred by such general 
 permission. 
 
 It was obvious that the passage of an army through a foreign 
 territory would probably be, at all times, inconvenient and 
 injurious, and would often be imminently dangerous to the 
 sovereign through whose dominions it passed. Such a pas- 
 sage 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 exposing 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 those that the general license to foreigners to 
 enter the dominions of a friendly power is never understood
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 131 
 
 to extend to a military force ; and an army marching into the 
 dominions of another sovereign, without his special permis- 
 sion, may justly be considered as committing an act of hos- 
 tility ; and, even if not opposed by force, acquires no privilege 
 by its irregular and improper conduct. It might, however, 
 well be questioned whether any other than the sovereign of 
 the State is capable of deciding that such military commander 
 is acting without a license. 
 
 But the rule which is applicable to armies did not appear 100. 
 to be equally applicable to ships of war entering the ports f X foreign n 
 of a friendly power. The injury inseparable from the march shi P s of 
 of an army through an inhabited country, and the dangers ing the 
 often, indeed generally, attending it, do not ensue from ad- ^ f any 
 mitting a ship of war, without special license into a friendly under an 
 port. A different rule, therefore, with respect to this species ^piied r 
 of military force, had been generally adopted. If, for permission, 
 reasons of State, 'the ports of a nation generally, or any par- 
 ticular ports be closed against vessels of war generally, or 
 against 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. 
 
 The treaties between civilized nations, in almost every 
 instance, contain a stipulation to this effect in favour 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 enter his ports, and this is a license which 
 he is not at liberty to retract. 
 
 If there be no treaty applicable to the case, and the sove- 
 reign, 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 im- 
 plied, no just reason is perceived for distinguishing their case 
 from that of vessels which enter by express assent. 
 
 The whole reasoning, upon which such exemption had been 
 implied in the case of a sovereign or his minister, applies with 
 
 K 2
 
 132 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 full force to the exemption of ships of war in the case in 
 question. 
 
 " It is impossible to conceive," said 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 argu- 
 ment, which completely establishes the independence 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 inde- 
 pendence ; and thus there exists between the two princes a 
 tacit convention, which gives a new force to the natural 
 obligation" (/). 
 
 Equally impossible was it to conceive, that a prince who 
 stipulates a passage 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 
 could not be presumed, the sovereign of the port must be con- 
 sidered as having conceded the privilege to the extent in which 
 it must have been understood to be asked. 
 
 101. According to the judgment of the Supreme Court of the 
 between 00 United States, where, without treaty, the ports of a nation are 
 public and open to the public and private ships of a friendly power, 
 vessels. whose subjects have also liberty, without special license, to 
 enter the country for business or amusement, a clear distinc- 
 tion was to be drawn between the rights accorded to private 
 individuals, or private trading vessels, and those accorded to 
 public armed ships which constitute a part of the military 
 force of the nation. 
 
 When private individuals of one nation spread themselves 
 through another as business or caprice may direct, mingling 
 indiscriminately with the inhabitants of that other ; or when 
 merchant 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 did not owe temporary and 
 local allegiance, and were not amenable to the jurisdiction of 
 the country. Nor can the foreign sovereign have any motive 
 
 (/) Vattel, Droit des Geus, liv. 4, eh. 7, 92.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 133 
 
 for wishing such exemption. His subjects, then, passing 
 into foreign countries, are not employed by him, nor are they 
 engaged in national pursuits. Consequently there are power- 
 ful motives for not exempting persons of this description 
 from the jurisdiction of the country in which they are found, 
 and no motive for requiring it. The implied license, there- 
 fore, under which they enter, can never be construed to grant 
 such exemption. 
 
 But the situation of a public armed ship was, in all 
 respects, different. She constitutes a part of the military 
 force of her nation, acts under the immediate and direct com- 
 mand of the sovereign, is employed by him in national objects. 
 He has many and powerful motives for preventing those 
 objects from being defeated by the interference of a foreign 
 State. Such interference cannot take place without seriously 
 affecting his power and his dignity. The implied license, 
 therefore, under which such vessel enters a friendly port, may 
 reasonably be construed, and it seemed to the court ought to 
 be construed, as containing an exemption from the jurisdic- 
 tion 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 cer- 
 tainly, in practice, nations had not yet asserted their jurisdic- 
 tion over the public armed ships of a foreign sovereign, enter- 
 ing a port open for their reception. 
 
 Bynkershoek, a public jurist of great reputation, had indeed 
 maintained that the property of a foreign sovereign was not 
 distinguishable, by any legal exemption, from the property of 
 an ordinary individual ; and had quoted several cases in which 
 courts of justice had exercised jurisdiction over cases in which 
 a foreign sovereign was made a party defendant (g). 
 
 Without indicating any opinion on this question, it might 
 safely be affirmed, that there is a manifest distinction between 
 the private property of a person who happens to be a prince 
 and that military force which supports the sovereign power, 
 and maintains the dignity and independence of a nation. A 
 prince, by acquiring private property in a foreign country, 
 
 (g) Bynkershoek, de Foro Legal, cap. iv.
 
 134 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 may possibly be considered as subjecting that property to the 
 territorial jurisdiction ; he may be considered as, so far, laying 
 down the prince and assuming the character of a private indi- 
 vidual (h) ; but he cannot be presumed to do this 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 was that of 
 the Spanish ships of war, seized in 1668, 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 transaction is stated, that either by the 
 interference of government, or by the decision of the tribunal, 
 the vessels were released (i). 
 
 This case of the Spanish vessels was believed to be 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 the armed vessels of the nation. That this 
 proceeding was at once arrested by the government, in a nation 
 which appears to have asserted the power of proceeding against 
 the private property of the prince, would seem to furnish no 
 feeble argument in support of the universality of the opinion 
 in favour of the exemption claimed for ships of war. The 
 distinction made in the laws of the United States between 
 public and private ships, would appear to proceed from the 
 same opinion. 
 
 Without doubt, the sovereign of the place is capable of 
 destroying this implication. He may claim and exercise 
 jurisdiction, 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 considered as having imparted to the ordinary tri- 
 bunals a jurisdiction which it would be a breach of faith to 
 
 (h) [This point was decided in accordance with the text in The Charkieh, 
 L. R. 4 A. & E. 87] 
 
 (i) "Anno 1668, privati quidam Regis Hispanici creditores, tres ejus regni 
 naves bellicas, quae portuni Flissingensem subiverant, arresto detinuerunt, ut 
 inde ipsis satistieret, Rege Hispanico ad certum diem per epistolam in jus 
 vocato ad judices Flissingenses, sed ad legati Hispauici expostulations 
 Ordiues Generates, 12 Dec. 1668, decreverunt, Zelandise Ordines curare 
 vellent, naves illse continu6 demitterentur liberse, admoneretur tamen per 
 literas Hispaniae Regina, ipsa curare vellet, ut illis creditoribus, in caus& 
 jnstissima, satisfieret, ne repressalias, quas imploraverunt, largiri tenerentur." 
 Bynkershoek, cap. iv.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 135 
 
 exercise. Those general statutory provisions, therefore, which 
 are descriptive of the ordinary jurisdiction of the judicial tri- 
 bunals, 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 the Supreme Court, to be so construed as to give them 
 jurisdiction in a case in which the sovereign power had im- 
 plicitly consented to waive its jurisdiction. 
 
 The court came to the conclusion, that the vessel in ques- 
 tion being a public armed ship, in the service of a foreign 
 sovereign with whom the United States were at peace, and 
 having 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 her- 
 self in a friendly manner, she should be exempt from the 
 jurisdiction of the country (&). 
 
 The point actually decided in the case of The Exchange was, that the lOla. 
 local court would not inquire into the title by which the foreign sove- Procsed- 
 reign held his vessel ; but it does not follow from this that ships of war 
 are to be exempt from the jurisdiction in all cases, when complying with war> 
 the terms of the implied license under which they enter the friendly 
 port. Englishmen and Americans cannot, without the consent of the 
 government, proceed against the ships of war of their own country (I), 
 but it is not perfectly clear that they are debarred from suing those of 
 another State, to enforce a maritime lien, such as salvage or damage, and 
 there is some authority in favour of allowing the local court to entertain 
 such a suit (m). " It may be laid down," said Mr. Justice Story, " as a Exemp- 
 general proposition, that all persons and property within the territorial tion of 
 jurisdiction of a sovereign are amenable to the jurisdiction of himself P u 'j ) l lcsni P 8 
 or his courts ; and that the exceptions to this rule are such only as by grounds of 
 common usage, and public policy, have been allowed in order to preserve policy. 
 the peace and harmony of nations, and to regulate their intercourse in 
 a manner best suited to their dignity and rights " (). lOlb. 
 
 It is clear that no suit can be maintained against a foreign sovereign Suits 
 
 for acts done by him in virtue of his authority as sovereign, and in against 
 
 foreign 
 sovereigns. 
 
 (k) The Schooner Exchange v. McFadden and others, 7 Cranch, 135147. 
 
 (I) [The Comus, 2 Dods. Ad. 464 ; Briggt v. The Light Boats, 11 Alleu 
 (Mass. Rep.), 157]. 
 
 (m) [The Prins Frederick, 2 Dods. Ad. 451 ; U. S. v. Wilder, 3 Sumner, 
 308 ; The Charkieh, L. R. 4 A. & E. 93. Report of Royal Commission on 
 Fugitive Slaves, 1875, p. 44. Opinion of Lord Stowell, ibid. p. 77]. 
 
 (n) [The Santissima Trinidad, 7 Wheaton, 353]. 
 
 a. 'fut. _ t- n*V -flW* UtMtoO
 
 136 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION". 
 
 Dignity 
 of States 
 to be main- 
 tained. 
 
 lOlc. 
 Suits by 
 foreign 
 sovereigns. 
 
 Law of 
 France as 
 to the ex- 
 emption of 
 private 
 vessels 
 from the 
 local juris- 
 diction. 
 
 England this has been held to be the case, even though the foreign 
 sovereign is also a British subject (o). But the total exemption of 
 the property of a foreign sovereign situate within the local jurisdic- 
 tion, even though it consist of ships of war, cannot be considered as 
 entirely established. The tendency of international law is to protect 
 such property in all cases where any dealings with it would impair the 
 dignity of the foreign sovereign, and to substitute negotiations between 
 governments for proceedings in the local courts in such cases. If, how- 
 ever, a suit should be instituted relating to his property, which in no 
 way affects his dignity, there seems no objection to the foreign sovereign 
 being sued, and his property dealt with, in the ordinary way (p). 
 
 If a foreign sovereign himself institutes a suit in the local court, he 
 thereby submits to its jurisdiction as regards all matters relating to the 
 suit (q) ; and therefore the court may put him on terms, and order all 
 proceedings to be stayed, unless he complies with its terms (r). Thus, 
 the French courts would not allow the United States to sue certain 
 shipbuilders for fitting out privateers for the Confederate States, until 
 that Government had deposited 150,000 francs as security for costs (s). 
 The rights of a foreign sovereign, as regards the public property of his 
 State, do not abate by reason of a change in the person of the sovereign, 
 and his successor may continue or institute a suit to enforce such rights (<). 
 
 The maritime jurisprudence of France, in respect to foreign 
 private vessels entering the French ports for the purposes of 
 trade, appears to be inconsistent with the principles estab- 
 lished in the above judgment of the Supreme Court of the 
 United States ; or, to speak more correctly, the legislation of 
 France waives, in favour of such vessels, the exercise of the 
 local jurisdiction to a greater extent than appears to be impe- 
 ratively required by the general principles of international 
 law. As it depends on the option of a nation to annex any 
 conditions it thinks fit to the admission of foreign vessels, 
 public or private, into its ports, so it may extend, to any 
 degree it may think fit, the immunities to which such vessels, 
 entering under an implied license, are entitled by the general 
 law and usage of nations. 
 
 The law of France, in respect to oifences and torts com- 
 
 (o) [Duke of Brunswick v. King of Hanover, 2 Cl. & F. 1]. 
 
 (p) [The CJiarkieh, L. R. 4 A. & E. 97; Gladstone v. Musurus Bey, 
 1 H. & M. 492 ; 32 L. J. Ch. 155 ; Lariviere v. Morgan, L. R. 7 H. L. 
 423]. 
 
 (q) [Hullet v. King of Spain, 1 D. & Cl. 174]. 
 
 (r) [Prioleau v. U. S. of America, L. R. 2 Eq. 659 ; U. S. v. Wagner, 
 L. R. 2 Ch. 582 ; Republic of Peru v. Weguelin, L. R. 20 Eq. 140. West- 
 lake, 135. Foelix, 217]. 
 
 (s) [Report of Neutrality Laws Commission, 1868, p. 49]. 
 
 (t) [The Sapphire, 11 Wallace, 164 ; King of Spain v. Oliver, 2 Washing- 
 ton C. C. 431].
 
 BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 137 
 
 mitted on board foreign merchant vessels in French ports, 
 establishes a twofold distinction between : 
 
 1. Acts of mere interior discipline of the vessel, or even 
 crimes and offences committed by a person forming part of 
 its officers and crew, against another person belonging to 
 the same, where the peace of the port is not thereby dis- 
 turbed. 
 
 2. Crimes and offences committed on board the vessel 
 against persons not forming part of its officers and crew, or 
 by any other than a person belonging to the same, or those 
 committed by the officers and crew upon each other, if the 
 peace of the port is thereby disturbed. 
 
 In respect to acts of the first class, the French tribunals 
 decline taking jurisdiction. The French law declares that the 
 rights of the power, to which the vessel belongs, should be 
 respected, and that the local authority should not interfere, 
 unless its aid is demanded. These acts, therefore, remain 
 under the police and jurisdiction of the State to which the 
 vessel belongs. In respect to those of the second class, the 
 local jurisdiction is asserted by those tribunals. It is based 
 on the principle, that the protection accorded to foreign mer- 
 chantmen in the French ports cannot divest the territorial 
 jurisdiction, so far as the interests of the State are affected ; 
 that a vessel admitted into a port of the State is of right 
 subjected to the police regulations of the place ; and that its 
 crew are amenable to the tribunals of the country for offences 
 committed on board of it against persons not belonging to 
 the ship, as well as in actions for civil contracts entered into 
 with them ; that the territorial jurisdiction for this class of 
 cases is undeniable. 
 
 It is on these principles that the French authorities and 
 tribunals act, with regard to merchant ships lying within their 
 waters. The grounds upon which the jurisdiction is declined 
 in one class of cases, and asserted in the other, are stated in 
 a decision of the Council of State, pronounced in 1806. This 
 decision arose from a conflict of jurisdiction between the local 
 authorities of France and the American consuls in the French 
 ports, in the two following cases : 
 
 The first case was that of the American merchant vessel, 103 
 The Newton, in the port of Antwerp ; where the American
 
 138 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 Newton consul and the local authorities both claimed exclusive juris- 
 Satty. diction over an assault committed by one of the seamen 
 belonging to the crew against another, in the vessel's boat. 
 The second was that of another American vessel, The Sally, 
 in the port of Marseilles, where exclusive jurisdiction was 
 claimed both by the local tribunals and by the American 
 consul, as to a severe wound inflicted by the mate on one of 
 the seamen, in the alleged exercise of discipline over the crew. 
 The Council of State pronounced against the jurisdiction of 
 the local tribunals and authorities in both cases, and assigned 
 the following reasons for its decision : 
 
 " Considering that a neutral vessel cannot be indefinitely 
 regarded as a neutral place, and that the protection granted 
 to such vessels in the French ports cannot oust the territorial 
 jurisdiction, so far as respects the public interests of the 
 State ; that, consequently, a neutral vessel admitted into the 
 ports of the State is rightfully subject to the laws of the police 
 of that place where she is received ; that her officers and crew 
 are also amenable to the tribunals of the country for offences 
 and torts (u) committed by them, even on board the vessel, 
 against other persons than those belonging to the same, as 
 well as for civil contracts made with them ; but that, in 
 respect to offences and torts committed on board the vessel, 
 by one of the officers and crew against another, the rights of 
 the neutral power ought to be respected, as exclusively con- 
 cerning the internal discipline of the vessel, in which the 
 local authorities ought not to interfere, unless their protection 
 is demanded, or the peace and tranquillity of the port is dis- 
 turbed ; the Council of State is of opinion that this distinc- 
 tion, indicated in the report of the Grand Judge, Minister of 
 Justice, and conformable to usage, is the only rule proper to 
 be adopted, in respect to this matter ; and applying this doc- 
 trine to the two specific cases in which the consuls of the 
 United States have claimed jurisdiction ; considering that 
 one of these cases was that of an assault committed in the 
 boat of the American ship Newton, by one of the crew upon 
 another, and the other case was that of a severe wound 
 
 (u) The term used in the original is dtlits, which includes every wrong 
 done to the prejudice of individuals, whether they be dilits publics t>r dUlits 
 privts.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 139 
 
 inflicted by the mate of the American ship Sally upon one of 
 the seamen, for having made use of the boat without leave ; 
 is of opinion that the jurisdiction claimed by the American 
 consuls ought to be allowed, and the French tribunals pro- 
 hibited from taking cognizance of these cases " (x). 
 
 Mr. Wheaton, in a notice of Ortolan's work, came to the conclusion that I03a. 
 the French law established the true rule, and was most in conformity Distinction 
 with the practice of nations (y). A ship of war, and a private merchant 
 vessel cannot both 'claim the same immunities. As has already been 
 stated, it is doubtful whether a ship of war may not be proceeded against ships. 
 in some cases, but it is beyond doubt that merchant vessels are always 
 liable to be sued in a local court. It is also a separate point how far a 
 local court may exercise jurisdiction over acts done or persons found on 
 board a public or a private ship. 
 
 It has been laid down by many writers [that a ship of war is in 103b. 
 all respects a portion of the territory of the State to which she Doctrine of 
 belongs, and that when in the waters of another State not only is the !^ ernton ~ 
 vessel herself exempt 'from the local law, but the exemption extends * y< 
 to all persons and things on board her (z). Although this doctrine of 
 exterritoriality has been very widely received, there is a great weight of 
 authority against it. 
 
 In the case of John Brown, a British subject, who was imprisoned by 103c. 
 the Spaniards at Callao in 1819, for assisting in a Peruvian revolt, and Case of 
 who escaped on board a British ship of war then in the port of Lima, J 5 n 
 Lord Stowell on being asked his opinion as to whether Brown ought to 
 have been delivered up to the Spanish authorities, replied " that indi- 
 viduals merely belonging to the same country with the ship of war, are 
 exempted from the civil and criminal process of the country in its ordi- 
 nary jurisdiction of justice by getting on board such ship, and claiming 
 what is called the protection of its flag, is a pretension which, however 
 heard of in practice occasionally has no existence whatever in prin- 
 ciple " (a). In accordance with this opinion Lord Castlereagh directed the 
 English minister in Spain to disavow the act of the captain of the ship 
 of war in not delivering up John Brown. 
 
 In 1794 the opinion of Mr. William Bradford, the United States 103d. 
 Attorney-General was taken, as to whether a writ of habeas corpus would Opinion of 
 go to bring up a subject illegally detained on board a foreign ship of 
 war. He replied that although he could find no instance of this having Ge 
 been done, he was of opinion that a writ might be legally awarded in such 
 
 (x) Ortolan, Regies Internationales de la Mer, tome i. pp. 293298. 
 Appendice, Annexe H. p. 441. 
 
 (y) [Revue de Droit Frai^ais et Etranger, vol. ii. p. 206. Wheaton, by 
 Lawrence, p. 191]. 
 
 (z) [Historicus, Times, Nov. 4th, 1875. Italy and Germany maintain this 
 exterritoriality. See Report of Royal Commission on Fugitive Slaves, 1876, p. 7, 
 where the subject is fully discussed. This Report is a most valuable contribu- 
 tion to international law, and well repays the most careful reading]. 
 
 (a) [Report of Royal Commission on Fugitive Slaves, 1876, p. 77].
 
 140 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 103e. 
 
 Opinion of 
 Cockburn, 
 C.J., on 
 the exemp- 
 tion of 
 public 
 ships. 
 
 Rule laid 
 down by 
 Cockburn, 
 C.J. 
 
 103t 
 
 Criminals 
 and fugi- 
 tive slaves. 
 
 a case, and that the commander of the foreign ship of war could not claim 
 to be exempt from the jurisdiction of the State where he happens to be (6). 
 Lord Chief Justice Cockburn, in criticising the case of the Exchange, 
 allows the exemption of a ship of war " if restricted to the ship itself, 
 which was all the court had to deal with." But as regards those on 
 board, his Lordship adds, that "inasmuch as the crew may commit 
 offences against the local law, which the ship, being an inanimate thing, 
 cannot, it cannot be equally implied that the local sovereign has con- 
 sented that if they violate the local law they shall enjoy immunity from 
 its penalties." It is admitted that they are liable to be arrested for 
 offences against the local law committed on shore, why therefore " should 
 they be exempt because they get back to the ship before they are taken ? 
 And d fortiori, why should a person living under the local law, as a 
 subject of the local State, be able to withdraw himself from the opera- 
 tion of that law by getting on a ship which, but for this alleged exterri- 
 toriality, would clearly be within the jurisdiction ? Is it necessarily to 
 be implied that, because by the comity of nations the ports of every 
 State are open to the ships of war of other States, the local sovereign 
 has assented to his law becoming powerless in respect of crime committed 
 within its jurisdiction in case the criminal can get on board a foreign 
 ship lying in its waters ? Has this country ever assented to this doc- 
 trine ? Is it prepared to do so now ? Can any instance be cited in 
 which a criminal has been allowed to escape because he found his way to 
 a foreign ship of war ? Certainly none such has been brought to our 
 knowledge." 
 
 This opinion was delivered on the question as to what course an 
 English naval commander was to pursue, when a slave escaped on to his 
 vessel, while she was in the waters of a State that permitted slavery. 
 After reviewing all the leading authorities on this subject, the Lord 
 Chief Justice arrived at the conclusion that " The rule which reason and 
 good sense would, as it strikes me, prescribe, would be that, as regards 
 the discipline of a foreign ship of war, and offences committed on board, 
 as between members of her crew towards one another, matters should be 
 left entirely to the law of the ship, and that should the offender escape 
 to the shore, he should, if taken, be given up to the commander of the 
 ship on demand, and should be tried on shore only if no such demand be 
 made. But if a crime be committed on board the ship upon a local 
 subject, or if, a crime having been committed on shore, the criminal gets 
 on board a foreign ship, he should be given up to the local authorities. 
 In whatever way the rule should be settled, so important a principle of 
 international law ought not to be permitted to remain in its present un- 
 settled state" (c). 
 
 There is, no doubt, a distinction between a criminal going on board a 
 ship of war, and a slave escaping to it from his master. Nevertheless, 
 from an international point of view, to protect either is a violation of 
 the rights of the local sovereign. The law of England, as is shown 
 
 (6) [Opinions of Attorneys-General, vol. i. p. 25. See also, ibid., pp. 27, 
 54, 56. U. S. Papers on Foreign Affairs, vol. i. p. 446]. 
 
 (c) [Report of Royal Commission on Fugitive Slaves, 1876, pp. 37, 43].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 14 
 
 further on, recognises the existence of slavery in some countries, and 
 consequently the rights of slave-owners in such countries must be re- 
 spected. To assert that a slave, by coming on board a ship of war while 
 she is in the waters of a slave-owing State immediately becomes a free 
 man, is equivalent to asserting that a slave-owner's rights will not be 
 regarded, and is tantamount to making the State to which the ship of 
 war belongs pass judgment on the laws of a foreign and independent 
 State. The question cannot be confined even to criminals or slaves. 
 England has abolished imprisonment for debt, but when her ships of 
 war are in a State that incarcerates debtors, is a debtor to escape by 
 going on board an English ship of war '( No State would submit to such 
 a pretension. But the case of a slave and a debtor are very similar, so 
 far as the ship of war is concerned. Each claims the protection of its 
 flag from a liability imposed by the local law, and it is not for the com- 
 mander, by protecting either, virtually to decide whether the local law is 
 a proper or an improper one. 
 
 A merchant vessel is not in the same position as a ship of war. Every 103g. 
 State claims to exercise jurisdiction over its own merchant vessels Merc j ia { lt 
 wherever they are, and even when they are in the waters of another foreign 
 State. But when in a foreign port they must also obey the laws of the ports, 
 country to which the port belongs (d). They are thus at the same time 
 subject to two concurrent systems of law. Any State may decline to 
 exercise jurisdiction over foreign merchant vessels in its harbours to 
 whatever extent it pleases, as is the case with France ; but the right 
 nevertheless exists, and might be resumed on due notice being given. 
 Thus, a claim by the local officers of France to board the ship, search her, 
 and take out of her any one who has become amenable to the local laws, 
 could not lawfully be resisted or disputed after such due notice (e). 
 
 A peculiar case arose in 1841. The brig Creok, an American merchant 103h. 
 vessel, sailed from a port in Virginia with 135 slaves on board. On the ^ f ase ^ ^ 
 high seas some of the slaves rose, and took possession of the vessel, 
 killing a passenger, and wounding the captain and several of the crew. 
 They compelled the mate to navigate the ship to Nassau. On arrival 
 there the local authorities, at the request of the American Consul, 
 arrested such slaves as were proved to have committed acts of violence, 
 and the rest escaped to the shore, but whether with connivance of the 
 local authorities or not, did not appear. The United States demanded 
 that those who had gained the shore should be restored, but this was re- 
 fused by Great Britain, on the ground that they could not be seized 
 while they had committed no crime within British jurisdiction. The 
 matter was finally referred to an arbitrator, who awarded a pecuniary 
 indemnity to the American owner for the loss of his slaves (/). The 
 difficulty of this case arises from the fact that the Creole entered the 
 
 (d) [R. v. Anderson. L. R. 1 C. C. R. 161 ; R, v. Saltier, D. & B. C. C. 
 525 ; R. v. Lesley, 1 Bell, C. C. 220. Boyd, The Merchant Shipping Laws, 
 p. 438]. 
 
 (e) [Rep. on Fugitive Slaves, 1876, p. 26]. 
 
 (/) [Report of Decisions of Commissions under Convention of 1853, p. 242. 
 See also Wheaton, by Lawrence, p. 206 ; by Dana, p. 166. Hansard, Parl. 
 Debates (Lords), vol. Ix. p. 318].
 
 142 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 104. 
 Exe jP* lon 
 or private 
 
 from the 
 local juris- 
 
 not extend 
 to justify 
 
 gression 
 
 securit ^ 
 the State, 
 
 port of Nassau under duress, and against the will of her owners and 
 master. Yet it can hardly be maintained that even under such circum- 
 stances the local authorities were bound to try and prevent the slaves 
 from going on shore. The ship was within British dominions, and the 
 slaves, when trying to escape, violated no British law ; but, on the con- 
 trary, were endeavouring to dissolve a tie looked upon with abhorrence 
 by British law. The arrest of those who had committed acts of violence 
 rested on a different ground. They were seized, not because they had 
 endeavoured to regain their liberty, but because they had committed 
 piratical acts (g). 
 
 Whatever may be the nature and extent of the exemption 
 of .the public or private vessels of one State from the local 
 jurisdiction in the ports of another, it is evident that this ex- 
 emption, whether express or implied, can never be construed 
 to justify acts of hostility committed by such vessel, her 
 officers, and crew, in violation of the law of nations, against 
 n ie security of the State in whose ports she is received, or to 
 exclude the local tribunals and authorities from resorting to 
 suc ^ measures f self- defence as the security of the State may 
 require. 
 
 This just and salutary principle was asserted by the French 
 Court of Cassation, in 1832, in the case of the private Sar- 
 dinian steam- vessel, The Carlo Alberto, which, after having 
 landed on the southern coast of France the Duchess of Berry 
 and several of her adherents, with the view of exciting civil 
 war in that country, put into a French port in distress. The 
 judgment of the Court, pronounced upon the conclusions of 
 M. Dupin aine, Procureur-General, reversed the decision of 
 the inferior tribunal, releasing the prisoners taken on board 
 the vessel, upon the following grounds : 
 
 1. That the principle of the law of nations, according to 
 which a foreign vessel, allied or neutral, is considered as 
 forming part of the territory of the nation to which it belongs, 
 and consequently is entitled to the privilege of the same in- 
 violability with the territory itself, ceases to protect a vessel 
 which commits acts of hostility in the French territory, incon- 
 sistent with its character of ally, or neutral; as if, for 
 example, such vessel be chartered to serve as an instrument 
 of conspiracy against the safety of the State, and after having 
 landed some of the persons concerned in these acts, still 
 
 (g) [See Calvo, Droit International, rol. i. 260].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 143 
 
 continues to hover near the coast, with the rest of the con- 
 spirators on board, and at last puts into port under pretext of 
 distress. 
 
 2. That supposing such allegation of distress he founded in 
 fact, it could not serve as a plea to exclude the jurisdiction of 
 the local tribunals, taking cognizance of a charge of high 
 treason against the persons found on board, after the vessel 
 was compelled to put into port by stress of weather (h). 
 
 So also it has been determined by the Supreme Court of 105 - 
 the United States, that the exemption of foreign public ships, tion of 
 coming into the waters of a neutral State, from the local P ubl 's ln P 3 
 
 from the 
 
 jurisdiction, does not extend to their prize ships, or goods local juris- 
 captured by armaments fitted out in its ports, in violation ^^^* 
 of its neutrality, and of the laws enacted to enforce that to their 
 
 , . prize goods 
 
 neutrality. ^ ken f n 
 
 Such was their judgment in the case of the Spanish ship violation of 
 Santissima Trinidad, from which the cargo had been taken ity of the 
 out, on the high seas, by armed vessels commissioned by the i^^ich 
 United Provinces of the Rio de la Plata, and fitted out in the they are 
 ports of the United States in violation of their neutrality. 
 The tacit permission, in virtue of which the ships of war of 
 a friendly power are exempt from the jurisdiction of the 
 country, cannot be so interpreted as to authorize them to 
 violate the rights of sovereignty of the State, by committing 
 acts of hostility against other nations, with an armament sup- 
 plied in the ports, where they seek an asylum. In conformity 
 with this principle, the court ordered restitution of the goods 
 claimed by the Spanish owners, as wrongfully taken from 
 them (i). 
 
 8. Both the public and private vessels of every nation, on 106. 
 the high seas, and out of the territorial limits of any other tio " of the 
 State, are subject to the jurisdiction of the State to which State over 
 
 its public 
 they belong (k). and private 
 
 Vattel says that the domain of a nation extends to all its 
 just possessions ; and by its possessions we are not to under- seas, 
 stand its territory only, but all the rights (droits) it enjoys. 
 
 (h) Sirey, Recueil general de Jurisprudence, tome xxxii. Partie i. p. 578. 
 M, Dupin aine has published his learned and eloquent pleading in this 
 memorable case, in his Collection des Requisitoires, tome i. p. 447. 
 
 (i) The Santissima Trinidad, 7 Wheaton, 352. 
 
 (k) [R. v. Anderson, L. R. 1 C. C. R. 161].
 
 144 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 And he also considers the vessels of a nation on the high seas 
 as portions of its territory. Grotius holds that sovereignty 
 may be acquired over a portion of the sea, rationepersonarum, 
 ut si classis qui maritimus est exercitus, aliquo in loco maris 
 se habeat. But, as one of his commentators, Rutherforth, has 
 observed, though there can be no doubt about the jurisdiction 
 of a nation over the persons who compose its fleets when 
 they are out at sea, it does not follow that the nation has 
 jurisdiction over any portion of the ocean itself. It is not a 
 permanent property which it acquires, but a mere temporary 
 right of occupancy in a place which is common to all man- 
 kind, to be successively used by all as they have occasion (I). 
 
 This jurisdiction which the nation has over its public and 
 private vessels on the high seas, is exclusive only so far as 
 respects offences against its own municipal laws. Piracy and 
 other offences against the law of nations, being crimes not 
 against any particular State, but against all mankind, may be 
 punished in the competent tribunal of any country where the 
 offender may be found, or into which he may be carried, 
 although committed on board a foreign vessel on the high 
 seas (m). 
 
 Though these offences may be tried in the competent court 
 of any nation having, by lawful means, the custody of the 
 offenders, yet the right of visitation and search does not exist 
 in time of peace. This right cannot be employed for the pur- 
 pose of executing upon foreign vessels and persons on the 
 high seas the prohibition of a traffic, which is neither piratical 
 nor contrary to the law of nations, (such, for example, as the 
 slave trade,) unless the visitation and search be expressly per- 
 mitted by international compact (ri). 
 
 Every State has an incontestable right to the service of all 
 its members in the national defence, but it can give effect to 
 this right only by lawful means. Its right to reclaim the 
 military service of its citizens can be exercised only within its 
 own territory, or in some place not subject to the jurisdiction 
 
 (1) Vattel, liv. i. ch. 19, 216, liv. ii. ch. 7, 80. Grotius, de Jur. Bel. 
 ac. Pac. lib. ii. cap. iii. 13. Rutherforth's Inst. vol. ii. b. 2, ch. 9, 
 8, 19. 
 
 (m) Sir L. Jenkin's Works, vol. i. p. 714. 
 
 (n) The Louis, 2 Dods. Ad. 238 ; The Marianna Flora, 9 Wheaton, 39 ; 
 The Antelope, 10 Wheaton, 122 ; et vide infra, 120, et seq.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 145 
 
 of any other nation. The ocean is such a place, and any 
 State may unquestionably there exercise, on board its own 
 vessels, its right of compelling the military or naval services 
 of its subjects. But whether it may exercise the same right 
 in respect to the vessels of other nations, is a question of more 
 difficulty. 
 
 In respect to public commissioned vessels belonging to the 107. 
 State, their entire immunity from every species and purpose ^niTof 
 of search is generally conceded. As to private vessels belong- * n ? an 1 by 
 ing to the subjects of a foreign nation, the right to search 
 them on the high seas, for deserters and other persons liable 
 to military and naval service, has been uniformly asserted by 
 Great Britain, and as constantly denied by the United States. 
 This litigation between the two nations, who by the identity 
 of their origin and language are the most deeply interested in 
 the question, formed one of the principal objects of the late 
 war between them. It is to be hoped that the sources of this 
 controversy may be dried up by the substitution of a registry 
 of seamen, and a system of voluntary enlistment with limited 
 service, for the odious practice of impressment which has 
 hitherto prevailed in the British navy, and which can never be 
 extended, even to the private ships of a foreign nation, without 
 provoking hostilities on the part of any maritime State capable 
 of resisting such a pretension (o). 
 
 The subject was incidentally passed in review, though not 108. 
 directly treated of, in the negotiations which terminated in the on 1S ihfs S10n 
 treaty of Washington, 1842, between the United States and P int - 
 Great Britain. In a letter addressed by the American nego- 
 tiator to the British plenipotentiary on the 8th August, 1842, 
 it was stated that no cause had produced, to so great an 
 extent, and for so long a period, disturbing and irritating in- 
 fluences on the political relations of the United States and 
 England, as the impressment of seamen by the British 
 cruisers from American merchant vessels. 
 
 From the commencement of the French revolution to the 
 breaking out of the war between the two countries in 1812, 
 hardly a year elapsed without loud complaint and earnest 
 remonstrance. A deep feeling of opposition to the right 
 
 (o) Edinburgh Review, vol. xi. art. 1. Mr. Canning's Letter to Mr. Monroe, 
 September 23, 1807. American State Papers, vol. vi. p. 103.
 
 146 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 claimed, and to the practice exercised under it, and not unfre- 
 quently exercised without the least regard to what justice and 
 humanity would have dictated, even if the right itself had 
 been admitted, took possession of the public mind of America ; 
 and this feeling, it was well known, co-operated with other 
 causes to produce the state of hostilities which ensued. 
 
 At different periods, both before and since the war, negotia- 
 tions had taken place between the two governments, with the 
 hope of finding some means of quieting these complaints. 
 Sometimes the effectual abolition of the practice had been re- 
 quested and treated of; at other times, its temporary suspen- 
 sion ; and, at other times, again, the limitation of its exercise 
 and some security against its enormous abuses. 
 
 A common destiny had attended these efforts : they had all 
 failed. The question stood at that moment where it stood 
 fifty years ago. The nearest approach to a settlement was a 
 convention, proposed in 1803, and which had come to the 
 point of signature, when it was broken off in consequence of 
 the British Government insisting that the " Narrow Seas" 
 should be expressly excepted out of the sphere over which the 
 contemplated stipulations against impressment should extend. 
 The American minister, Mr. King, regarded this exception 
 as quite inadmissible, and chose rather to abandon the nego- 
 tiation than to acquiesce in the doctrine which it proposed to 
 establish. 
 
 England asserted the right of impressing British subjects. 
 She asserted this as a legal exercise of the prerogative of the 
 crown ; which prerogative was alleged to be founded on the 
 English law of the perpetual and indissoluble allegiance of 
 the subject, and his obligation, under all circumstances, and 
 for his whole life, to render military service to the crown when- 
 ever required. 
 
 This statement, made in the words of eminent British 
 jurists, showed at once that the English claim was far broader 
 than the basis on which it was raised. The law relied on was 
 English law; the obligations insisted on were obligations 
 between the crown of England and its subjects. This law 
 and these obligations, it was admitted, might be such as 
 England chose they should be. But then they must be con- 
 fined to the parties. Impressment of seamen, out of and
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. H7 
 
 beyond the English territory, and from on board the ships of 
 other nations, was an interference with the rights of other 
 nations ; it went, therefore, further than English prerogative 
 could legally extend; and was nothing but an attempt to 
 enforce the peculiar law of England beyond the dominions 
 and jurisdiction of the crown. The claim asserted an extra- 
 territorial authority for the law of British prerogative, and 
 assumed to exercise this extra-territorial authority, to the 
 manifest injury of the citizens and subjects of other States, 
 on board their own vessels, on the high seas. 
 
 Every merchant vessel on those seas was rightfully con- 
 sidered as part of the territory of the country to which it 
 belonged. The entry, therefore, into such vessel, by a belli- 
 gerent power, was an act of force, and was, primd facie, a 
 wrong, a trespass which could be justified only when done for 
 some purpose allowed to form a sufficient justification by the 
 law of nations. 'But a British cruiser enters an American 
 vessel in order to take therefrom supposed British subjects ; 
 offering no justification therefor under the law of nations, but 
 claiming the right under the law of England respecting the 
 king's prerogative. This could not be defended. English 
 soil, English territory, English jurisdiction, was the appro- 
 priate sphere for the operation of English law. The ocean 
 was the sphere of the law of nations ; and any merchant ves- 
 sel on the high seas was, by that law, under the protection of 
 the laws of her own nation, and might' claim immunity, 
 unless in cases in which that law allows her to be entered or 
 visited. 
 
 If this notion of perpetual allegiance, and the consequent 
 power of the prerogative, were the law of the world ; if it 
 formed part of the conventional code of nations, and was 
 usually practised, like the right of visiting neutral ships, for 
 the purpose of discovering and seizing enemy's property ; 
 then impressment might be defended as a common right, and 
 there would be no remedy for the evil until the international 
 code should be altered. But this was by no means the case, 
 There was no such principle incorporated into the code of 
 nations. The doctrine stood only as English law, not as in- 
 ternational law ; and English law could not be of force beyond 
 English dominion. Whatever duties or relations that law 
 
 i 2
 
 148 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 creates between the sovereign and his subjects, could only be 
 enforced within the realm, or within the proper possessions or 
 territory of the sovereign. There might be quite as just a 
 prerogative right to the property of subjects as to their per- 
 sonal services, in an exigency of the State ; but no govern- 
 ment thought of controlling, by its own laws, the property of 
 its subjects situated abroad ; much less did any government 
 think of entering the territory of another power, for the pur- 
 pose of seizing such property and appropriating it to its own 
 use. As laws, the prerogatives of the crown of England have 
 no obligation on persons or property domiciled or situated 
 abroad. 
 
 "When, therefore," says an authority not unknown or un- 
 regarded on either side of the Atlantic, " we speak of the 
 right of a State to bind its own native subjects everywhere, 
 we speak only of its own claim and exercise of sovereignty 
 over them, when they return within its own territorial juris- 
 diction, and not of its right to compel or require obedience to 
 such laws on the part of other nations, within their own 
 territorial sovereignty. On the contrary, every nation has an 
 exclusive right to regulate persons and things within its own 
 territory, according to its sovereign will and public polity." 
 109. But impressment was subject to objections of a much wider 
 jectfons to range. If it could be justified in its application to those who 
 IS 688 " are ^ ec ^ ared to ^ e i ts onl y objects, it still remained true that, 
 in its exercise, it touched the political rights of other govern- 
 ments, and endangered the security of their own native sub- 
 jects and citizens. The sovereignty of the State was con- 
 cerned in maintaining its exclusive jurisdiction and possession 
 over its merchant ships on the seas, except so far as the law 
 of nations justifies intrusion upon that possession for special 
 purposes ; and all experience had shown that no member of a 
 crew, wherever born, was safe against impressment when a 
 ship was visited. 
 
 In the calm and quiet which had succeeded the late war, a 
 condition so favourable for dispassionate consideration, Eng- 
 land herself had evidently seen the harshness of impressment, 
 even when exercised on seamen in her own merchant service ; 
 and she had adopted measures, calculated if not to renounce 
 the power or to abolish the practice, yet, at least, to super-
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 sede its necessity, by other means of manning the royal navy, 
 more compatible with justice and the rights of individuals, 
 and far more conformable to the principles and sentiments of 
 the age. 
 
 Under these circumstances, the government of the United 
 States had used the occasion of the British minister's pacific 
 mission to review the whole subject, and to bring it to his 
 notice and to that of his government. It had reflected on 
 the past, pondered the condition of the present, and en- 
 deavoured to anticipate, so far as it might be in its power, 
 the probable future ; and the American negotiator communi- 
 cated to the British minister the following, as the result of 
 those deliberations. 
 
 The American government, then, was prepared to say that 
 the practice of impressing seamen from American vessels 
 could not hereafter be allowed to take place. That practice 
 was founded on principles which it did not recognise, and 
 was invariably attended by consequences so unjust, so in- 
 jurious, and of such formidable magnitude, as could not be 
 submitted to. 
 
 In the early disputes between the two governments, on this 
 so long contested topic, the distinguished person to whose 
 hands were first intrusted the seals of the Department of 
 State declared, that "the simplest rule will be, that the 
 vessel being American shall be evidence that the seamen on 
 board are such." 
 
 Fifty years' experience, the utter failure of many negotia- 
 tions, and a careful reconsideration of the whole subject 
 when the passions were laid, and no present interest or emer- 
 gency existed to bias the judgment, had convinced the 
 American government that this was not only the simplest and 
 best, but the only rule, which could be adopted and observed, 
 consistently with the rights and honour of the United States, 
 and the security of their citizens. That rule announced, 
 therefore, what would hereafter be the principle maintained by 
 their government. In every regularly documented American 
 merchant vessel, the crew who navigated it would find their 
 protection in the flag which was over them (p). 
 
 (p) Wheaton's Hist. Law of Nations, pp. 737746. Mr. Webster's Letter 
 to Lord Ashburton, August 8, 1842. [See 1'arl. Papers, 1842, p. 59].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 109a. it i s hardly possible that this dispute should arise again. The practice 
 
 circunT- ^ ^P 1 " 6881 ^^ has fallen into complete desuetude in England, and 
 
 stances ^ e alterations in the municipal laws of each country, added to the 
 
 since the naturalization treaty between them, have altered the whole aspect of 
 
 fro PUte *ke Question (q). England no longer claims the perpetual allegiance of 
 
 her subjects ; and even if she did, it is highly improbable that she 
 
 would at the present day assert the right of taking them out of foreign 
 
 vessels on the high seas. 
 
 At the beginning of the century Great Britain was engaged in a 
 gigantic struggle with France, which she maintained to a great extent 
 at sea. It appears from an Admiralty Minute of 1812, that there were 
 supposed to be upwards of 20,000 British-born seamen in the American 
 marine ; many of them provided with fraudulent protections (r). Under 
 such circumstances it is hardly surprising that the royal prerogative 
 should have been called into force, for the purpose of seizing such as 
 could be got at. If the question is to be decided according to the rules 
 of international law as existing at the present day, Great Britain was 
 perhaps in the wrong. She claimed to take persons alleged to be her 
 subjects out of the ships of a friendly State on the high seas, and to 
 force them into her service. This claim was appended to the right of 
 search ; that is, it was only exercised over neutral vessels in time of war. 
 It was not alleged that the fact of English seamen being on board gave 
 a British cruiser any right of stopping and searching the neutral vessel, 
 but there being an admitted right of entering for the purpose of seizing 
 contraband or enemy's goods, it was contended that British officers being 
 rightfully on board, had also the power of seizing anyone they found 
 there, who owed allegiance to the British crown (s). But the claim of 
 England had in reality nothing to do with the right of search. The 
 seamen she seized were neither contraband of war nor enemy's goods ; 
 they were seized simply because they owed allegiance. It so happened 
 that the only way of catching them was by taking them out of foreign 
 ships ; and as they were not wanted during peace, there was no need 
 for asserting the claim except during war, when the right of search 
 existed. But these were circumstances which only accidentally con- 
 nected impressment with the right of search. The two have nothing 
 in common. It must, however, be remembered that international law 
 has not always been, and is not even now, fixed and definite, and that 
 the views of the present day are not in all respects the same as those 
 held at the beginning of the century (t). 
 
 109b. In 1861, the question as to how far a merchant vessel may be stopped 
 Case of The on the high seas and persons taken out of her by the officers of a foreign 
 Trent. government, reappeared in a very different form. The British mail- 
 
 steamer Trent sailed from Havana for St. Thomas on the 7th Novem- 
 ber, 1861, under charge of a commander in the navy. There were on 
 board as passengers two persons, viz., Messrs. Slidell and Mason, who 
 
 (?) [See at the end of this chapter]. 
 
 (r) [Report of Naturalization Commission, 1869, p. 35, where a history of 
 the impressment controversy will be found], 
 
 (s) [Proclamation of the Prince Regent, 1813, Annual Reg. 1813, p. 350]. 
 (t) [Wheatou, by Dana, p. 179].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 151 
 
 were commissioners of the Confederate States, proceeding to England and 
 France. About nine miles from Cuba, The Trent was stopped by The 
 San Jacinto, an American ship of war, the two commissioners, with 
 their secretaries, were taken out, and The Trent was then allowed to 
 continue her voyage. The commissioners were imprisoned in a mili- 
 tary fortress in the United States. The British Government instantly 
 demanded their restoration, with an apology for the aggression, and in 
 case of refusal Lord Lyons was directed to withdraw from Wash- 
 ington (M). Instructions were given to the ambassadors of France, 
 Austria, Prussia, Italy, and Russia, by their respective governments to 
 sustain the demands of Great Britain. 
 
 It was contended by the United States that the persons seized were 
 contraband of war, and that The Trent being a neutral merchant- vessel, 
 it was the right of The San Jacinto, as a belligerent cruiser, to stop her 
 for the purpose of ascertaining her true national character, and of 
 seizing any contraband found on board. The detention of the Com- 
 missioners was, however, not persisted in, and they were delivered up 
 on considerations connected with complaints previously made by the 
 United States as to the impressment of seamen from their vessels (x). 
 Although the American Government congratulated the captain of The 
 San Jacinto "for the great public service he had rendered," and although 
 his acts were approved by many eminent American jurists, the trans- 
 action cannot be regarded as justifiable. The Trent was on a bond fide 
 voyage from one neutral port to another. She was a mail steamer, a 
 class of vessel peculiarly exempt from molestation, and instead of being 
 captured and brought before a Prize Court, she was simply stopped on 
 the high seas, and certain arbitrary acts performed on board her by the 
 American captain. 
 
 One of the reasons alleged by the captain of The San Jacinto for 
 not bringing in The Trent for adjudication before a Prize Court was, 
 that he wished to spare the other passengers the inconvenience of 
 deviating from their voyage. Siich a reason was no doubt humane and 
 honourable, but it cannot be taken as sufficient to set aside a universal 
 rule of public law, that a ship and cargo are not lawful prize until con- 
 demned by a competent court, and that until so condemned a captor 
 has no right to do anything beyond bringing the ship before the court. 
 
 IV. The municipal laws and institutions of any State may no. 
 operate beyond its own territory, and within the territory of ?^g'i l - ar 
 another State, by special compact between the two States. tion. 
 
 Such are the treaties by which the consuls and other com- 
 mercial agents of one nation are authorised to exercise, over 
 their own countrymen, a jurisdiction within the territory of 
 the State where they reside. The nature and extent of this 
 peculiar jurisdiction depends upon the stipulations of the 
 
 () [Parl. Papers, 1862, N. America (No. 5), p. 3]. 
 (*) [Mr. Seward to Lord Lyons, 26th Dec. 1861].
 
 152 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 Treaty 
 be i. ween 
 China and 
 the United 
 
 llOa. 
 
 British 
 Consular 
 
 treaties between the two States. Among Christian nations it 
 is generally confined to the decision of controversies in civil 
 cases arising between the merchants, seamen, and other sub- 
 jects of the State in foreign countries ; to the registering of 
 wills, contracts, and other instruments executed in presence 
 of the consul ; and to the administration of the estates of 
 their fellow- subjects deceased within the territorial limits of 
 the consulate. The resident consuls of the Christian powers 
 in Turkey, the Barbary States, and other Mohammedan 
 countries, exercise both civil and criminal jurisdiction over 
 their countrymen, to the exclusion of the local magistrates 
 and tribunals. This jurisdiction is subject, in civil cases, to 
 an appeal to the superior tribunals of their own country- 
 The criminal jurisdiction is usually limited to the infliction of 
 pecuniary penalties, and in offences of a higher grade, the 
 consular functions are similar to those of a police magistrate, 
 or jug e d 'instruction. He collects the documentary and other 
 proofs, and sends them, together with the prisoner, home to 
 his own country for trial (?/). 
 
 By the treaty of peace, amity, and commerce, concluded at 
 Wang Hiya, 1844, between the United States and the Chinese 
 Empire, it is stipulated, Art. 21, that " citizens of the United 
 States, who may commit any crime in China, shall be subject 
 to be tried and punished only by the consul, or other public 
 functionary of the United States thereto authorised, according 
 to the laws of the United States." Art. 25. "All questions 
 in regard to rights, whether of property or of person, arising 
 between citizens of the United States and in China, shall 
 be subject to the jurisdiction, and regulated by the authori- 
 ties, of their own .government. And all controversies oc- 
 curring in China, between citizens of the United States, 
 and the subjects of any other government, shall be regu- 
 lated by the treaties existing between the United States 
 and such governments respectively, without interference on 
 the part of China." 
 
 From a very early time, owing to the total difference of religious 
 habits and feelings between Europeans and Asiatics, it was deemed 
 
 (y) De Steck, Essai sur les Consuls, sect. vii. 3040. Pardessus, Droit 
 commercial, pt. vi. tit. 6, ch. 2, 2, ch. 4, 1, 2, 3. [As to English 
 consuls, see Boyd, The Merchant Shipping Laws, Index, tit. Consular 
 officer].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 153 
 
 necessary by their respective governments to withdraw Europeans from Courts in 
 the authority of the native courts of these States. In process of time, on r 
 and with the consent, express or implied, of the Turkish Government, counties 
 a general system of Consular Courts became established throughout the 
 Sultan's dominions. The Ottoman Porte gives to the Christian Powers 
 of Europe authority to administer justice to their own subjects according 
 to their own laws, but it does not profess to give, nor could it give, 
 to one such Power any jurisdiction over the subjects of another Power. 
 It ha.s 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 
 tribunals of another, there can be no objection to their doing so witli 
 the consent of their own Sovereign and that of the Sovereign to whose 
 tribunals they resort (2). This kind of jurisdiction, exercised by the 
 consuls of Christian States in Mohammedan countries, is to be carefully 
 distinguished from the ordinary powers exercised by foreign consuls in 
 Christian States (a). Judicial powers are not necessarily incident to the 
 office of consul. These powers depend altogether upon treaty (b). 
 
 The numerous Orders in Council and other provisions for regulating 
 the British Consular Courts in Turkey, were repealed and consolidated 
 by an Order in Council, dated 12th December, 1873 (c). The position 
 of British subjects in China and Japan is very similar to that they 
 occupy in Turkey, and consular courts are established in those countries 
 with much the same powers as those in Turkey (d). 
 
 The jurisdiction exercised by England in these eastern countries is 
 regulated by an Act' of Parliament, which recites that " by treaty, capi- 
 tulation, grant, usage, sufferance, and other lawful means, Her Majesty 
 hath power and jurisdiction within divers countries and places out of 
 Her Majesty's dominions ; and that doubts have arisen how far the 
 exercise of such power and jurisdiction is controlled by and dependent 
 upon the laws of this realm ;" and enacts that " Her Majesty may 
 exercise any power or jurisdiction which Her Majesty now hath or may 
 at any time hereafter have, within any country out of Her Majesty's 
 dominions, in the same and as ample a manner as if Her Majesty had 
 acquired such power or jurisdiction by the cession or conquest of 
 territory (e). 
 
 Every sovereign State is independent of every other in the m. 
 
 ., .',.., Indepen- 
 
 exercise of its judicial power. ,j ence of 
 
 This general position must, of course, be qualified by the the stale 
 x . . as to its 
 
 exceptions to its application arising out of express compact, judicial 
 
 such as conventions with foreign States, and acts of confedera- P wer - 
 tion, by which the State may be united in a league with other 
 
 (2) [The Laconia, 2 Moo. P. C. N. S. 183]. 
 
 (a) [Messina v. Petrocochino, L. R. 4 P. C. 158 ; Dent v. Smith, L. R. 
 4 Q. B. 445]. 
 
 (b) [Dainese v. Hale, 1 Otto, 13]. 
 
 (c) [See London Gazette, 19th Dec. 1873]. 
 
 (d) [See Order in Council, 9th March, 1865. Hcrtslet, Commercial Treaties, 
 vol. xii. p. 281. Phillimore, vol. ii. 276, p. 314]. 
 
 (e) [6 & 7 Viet. c. 94, s. ij.
 
 154 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 States for some common purpose. By the stipulations of 
 these compacts it may part with certain portions of its judi- 
 cial power, or may modify its exercise with a view to the 
 attainment of the object of the treaty or act of union. 
 112. Subject to these exceptions, the judicial power of every 
 State is co-extensive with its legislative power. At the same 
 time it does not embrace those cases in which the municipal 
 institutions of another nation operate within the territory. 
 Such are the cases of a foreign sovereign, or his public minis- 
 ter, fleet or army, coming within the territorial limits of 
 another State, which, as already observed, are, in general, 
 exempt from the operation of the local laws. 
 
 113. I. The judicial power of every independent State, then, 
 Sejudidal extends, with the qualifications mentioned, 
 power over 1. To the punishment of all offences against the municipal 
 offences. laws of the State, by whomsoever committed, within the terri- 
 tory. 
 
 2. To the punishment of all such offences, by whomsoever 
 committed, on board its public and private vessels on the high 
 seas, and on board its public vessels in foreign ports. 
 
 3. To the punishment of all such offences by its subjects, 
 wheresoever committed. 
 
 4. To the punishment of piracy and other offences against 
 the law of nations, by whomsoever and wheresoever committed. 
 
 It is evident that a State cannot punish an offence against 
 its municipal laws committed within the territory of another 
 State, unless by its own citizens; nor can it arrest the persons 
 or property of the supposed offender within that territory : 
 but it may arrest its own citizens in a place which is not 
 within the jurisdiction of any other nation, as the high seas, 
 and punish them for offences committed within such a place, 
 or within the territory of a foreign State. 
 
 By the Common Law of England, which has been adopted, 
 in this respect, in the United States, criminal offences are 
 considered as altogether local, and are justiciable only by the 
 courts of that country where the offence is committed. But 
 this principle is peculiar to the jurisprudence of Great Britain 
 and the United States ; and even in these two countries it has 
 been frequently disregarded by the positive legislation of each, 
 in the enactment of statutes, under which offences committed
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 155 
 
 by a subject or citizen, within the territorial limits of a A 
 foreign State, have been made punishable in the courts of 
 that country to which the party owes allegiance, and whose 
 laws he is bound to obey. There is some contrariety in the ^ 
 opinions of different public jurists on this question; but the H'j 
 preponderance of their authority is greatly in favour of the 
 jurisdiction of the courts of the offender's country, in such a 
 case, wherever such jurisdiction is expressly conferred upon 
 those Courts, by the local laws of that country. This doctrine 
 is also fully confirmed by the international usage and constant 
 legislation of the different States of the European continent, by 
 which crimes in general, or certain specified offences against 
 the municipal code, committed by a citizen or subject in a 
 foreign country, are made punishable in the courts of his 
 own (/). 
 
 The cases in which , English Courts have jurisdiction to try offences H3a. 
 committed abroad, are exceptions to the general rule that crimes are Jurisdic* 
 local. The following are the principal exceptions: Political offences, ^ f 
 such as treason (g) ; administering unlawful oaths, and forging govern- Q r j jf 
 inent documents (h). As these acts must necessarily be intended to crimes 
 take effect in the country against which they are devised, they may committed 
 perhaps not be looked upon as a real exception. But homicide abroad abroad, 
 is an undoubted exception. A British subject who commits murder or 
 manslaughter abroad on land, whether within the Queen's dominions or 
 without, and whether he kills a British subject or not, can be tried 
 wherever he may be apprehended in England or Ireland. This is 
 not to prevent his being tried elsewhere (i). Offences against property 
 or person committed at any place, ashore or afloat, out of Her Majesty's 
 dominions, by any master, seaman, or apprentice, who, at the time when 
 the offence is committed, or within three months previously, has been 
 employed in any British ship, may be tried in England (k). 
 
 Laws of trade and navigation cannot affect foreigners, 114- 
 beyond the territorial limits of the State, but they are bind- trade and 
 ing upon its citizens, wherever they may be. Thus, offences navi s ation - 
 against the laws of a State, prohibiting or regulating any 
 
 (/) Foelix, Droit international prive, 510 532. See American Jurist, 
 vol. xxii. pp. 381386. 
 
 (g) [See Sir James Stephen's Digest of Criminal Law as to what is Treason, 
 ch. vi.]. 
 
 (h) [52 Geo. III. c. 104, s. 7. Wharton, Conflict of Laws, 916J. 
 
 (i) [24 & 25 Viet. c. 100, s. 9]. 
 
 (yfc) [17 & 18 Viet. c. 104, s. 267. See Boyd, The Merchant Shipping 
 Laws, p. 229].
 
 156 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 particular traffic, may be punished by its tribunals, when 
 committed by its citizens, in whatever place ; but if com- 
 mitted by foreigners, such offences can only be thus punished 
 when committed within the territory of the State, or on board 
 of its vessels, in some place not within the jurisdiction of any 
 other State. 
 
 115. The public jurists are divided upon the question, how far a 
 
 tion^of 1 " sovereign State is obliged to deliver up persons, whether its 
 criminals, own subjects or foreigners, charged with or convicted of 
 crimes committed in another country, upon the demand of a 
 foreign State, or of its officers of justice. Some of these 
 writers maintain the doctrine, that, according to the law and 
 usage of nations, every sovereign State is obliged to refuse an 
 asylum to individuals accused of ciimes affecting the general 
 peace and security of society, and whose extradition is de- 
 manded by the government of that country within whose 
 jurisdiction the crime has been committed. Such is the 
 opinion of Grotius, Heineccius, Burlamaqui, Vattel, Ruther- 
 forth, Schmelzing, and Kent (I). According to Puffendorf, 
 Voet, Martens, Kliiber, Leyser, Kluit, Saalfeld, Schmaltz, 
 Mittermeyer, and Heffter, on the other hand, the extradition 
 of fugitives from justice is a matter of imperfect obligation 
 only ; and though it may be habitually practised by certain 
 States, as the result of mutual comity and convenience, 
 requires to be confirmed and regulated by special compact, 
 in order to give it the force of an international law (m). And 
 the last-mentioned learned writer considers the very fact of 
 the existence of so many special treaties respecting this matter 
 as conclusive evidence that there is no such general usage 
 among nations, constituting a perfect obligation, and having 
 the force of law properly so called. Even under systems of 
 confederated States, such as the Germanic Confederation and 
 
 (I) Grotius de Jur. Bel. ac. Pac. lib. ii. cap. xi. 3 5. Heineccius, 
 Prselect. in Grot. j. t. Burlamaqui, tome ii. pt. tv. ch. 3, 2329. Vattel, 
 liv. ii. ch. 6, 76, 77. Rutherforth, Inst. of Nat. Law, vol. ii. ch. 9, p. 12. 
 Schmelzing, Systematischer Grundriss des praktischen Europaischen Vb'lker- 
 rechts, 161. Kent's Comm. vol. i, pp. 36, 37, 5th ed. 
 
 (m) Puffendorf, Elementa, lib. viii. cap. 3, 23, 24. Voet, de Stat. 11, 
 cap. 1, No. 6. Martens, Droit des Gens, liv. iii. ch. 3, 101. Kliiber, 
 Droit des Gens, pt. ii. tit. 1, eh. 2, 66. Leyser, Meditationes ad Pandect. 
 Med. 10. Kluit, de Deditioue, Profugorum, 1, p. 7. Saalfeld, Handbuch 
 des positiven Volkerrechts, 40. Schmaltz, Europaisches Volkerrecht, p. 160 ; 
 Mittermeyer, das deutsche Strafverfahren, Theil i. 59, pp. 314319 ; Heffter, 
 Europaische Vblkemcht, 63.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 157 
 
 the North American Union, this obligation is limited to the 
 cases and conditions mentioned in the federal compacts (ri). 
 
 The negative doctrine that independent of special compact, 
 no State is bound to deliver up fugitives from justice upon 
 the demand of a foreign State, was maintained at an early 
 period by the United States government, and is confirmed by 
 a considerable preponderance of judicial authority in the 
 American courts of justice, both State and Federal (o). 
 
 The constitution of the United States (Art. 4, s. 2), provides 11 ? > 
 that " a person charged in any State with treason, felony, or tinn "by the 
 other crime, who shall flee from justice, and be found in ^j tl f t ' io ^ n ^ 
 another State, shall, on demand of the executive authority of 
 the State from which he fled, be delivered up, to be removed 
 to the State having jurisdiction of the crime." 
 
 It is still a debated question whether the surrender of fugitives, 116a. 
 except under a treaty,, is an absolute international duty. The weight Obligation 
 of modern authority inclines towards treating this as a matter of . extra<1 i' 
 comity (p). In such a matter as this, if any rules can be laid down at decided 
 all, they must be founded only on the practice of nations. A State is point, 
 not likely to change its law or practice in this respect, because it is not 
 in accordance with the theories of text-writers. 
 
 The law of England has apparently undergone a change on this H6b. 
 . point during the present century. In some of the older cases it is laid S r:lc ,^ ce , ^ 
 down by the judges that the " government may send a prisoner to 
 answer for a crime wherever committed "_ (q). In Lord Loughborough's 
 time, the crew of a Dutch ship mastered the vessel and ran away with 
 her, and brought her into Deal, and it was a question whether the 
 English Courts could seize them and send them to Holland. It was 
 held that they could (r). So late as 1827 the Provincial Court of 
 Appeals for Lower Canada held that a fugitive accused of larceny in 
 Vermont (U. S.), who escaped into Canada, could be surrendered to the 
 United States, although there was then no treaty on the subject (s). 
 There seems to be no doubt that this would not now be done. The consti- 
 tutional doctrine in England is, that the Crown may make treaties with 
 
 (n) Mittermeyer, ibid. 
 
 (o) See Mr. Jefferson to Mr. Genet, Sept. 12th, 1793. The decision of 
 Chancellor Kent, In re Washburn, 4 Johnson, Ch. Rep. 166, is counter- 
 balanced by that of Tilghman, C. J., in Respub. v. Deacon, 10 Sergeant & 
 Rawle, 125 ; by that of Parker, C. J., in Rcspub. v. Green, 17 Mass. 515548 ; 
 and by that of the Supreme Court in Holnvs v. Jennison, 14 Peters, 540. 
 
 (p) [Phillimore, vol. i. 367. Hetfter, Droit international, p. 128. 
 Molesworth on Foreign Jurisdiction, p. 37. Calvo, vol. i.' 377. Creasy, 
 First Platform of International Law, 208, &c.. 
 
 (q) [East India Co. v. Campbell, 1 Ves. 247]. 
 
 (r) [Mure v. Kay, 4 Taunt. 34]. 
 
 (s) [In re Fisher, Stuart, Lower Canada Rep. 245].
 
 158 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 116c. 
 
 Practice of 
 the United 
 States. 
 
 Case of 
 Arguelles. 
 
 foreign States for the extradition of criminals ; but those treaties can 
 only be carried into effect by Act of Parliament, for the executive has 
 no power, without statutory authority, to seize an alien here and deliver 
 him to a foreign power. Lord Denman said in the House of Lords 
 that he believed all Westminster Hall, including the Judicial Bench, 
 were unanimous in holding the opinion that in this country there was 
 no right of delivering up ; indeed, no means of securiiig persons accused 
 of crimes committed in foreign countries (t). It may thus be regarded 
 as certain that England will not surrender fugitives except under a 
 treaty. Nevertheless, she does not hesitate to ask other countries for 
 fugitives from herself. Thus, in 1874, the Spanish Government, at the 
 request of England, gave up Austin Bidwell, one of the Bank forgers, 
 without there being at the time any treaty between the two countries (u). 
 The practice of the United States has not always been uniform. In 
 1791, the Governor of South Carolina made a request that the President 
 should demand the surrender of certain persons from Florida (then 
 Spanish territory), who had committed crimes in South Carolina, and 
 then fled to Florida. Mr. Jefferson said respecting this, " The laws of 
 the United States, like those of England, receive every fugitive, and no 
 authority has been given to our executives to give them up ***** 
 If, then, the United States could not deliver up to Florida a fugitive 
 from the laws of his country, we cannot claim as a right the delivery 
 of fugitives from us " (x). Mr. Monroe, as Secretary of State, in his 
 instructions to the American Commissioners at Ghent, in 1814, says 
 " Offenders, even conspirators, cannot be pursued by one power into 
 the territory of another, nor are they delivered up by the latter, except 
 in compliance with treaties, or by favour " (y). These passages show 
 that, in the opinion of the writers, the Executive were neither bound, 
 nor able to surrender fugitives at the time, in the absence of treaty or 
 special legislation. The opinion Mr. Legare, Attorney-General, delivered 
 in 1841 is to the same effect (3). In 1864 a somewhat different opinion 
 was adopted. Arguelles, the Governor of a district in Cuba, wrong- 
 fully sold certain negroes into slavery while in his charge, with the aid 
 of forged papers, and then escaped to New York. There was at the 
 time no treaty between Spain and America, but Spain asked for the 
 surrender of Arguelles as a matter of comity, and the United States 
 eornplied. The Senate thereupon requested the President to inform 
 them, under what authority of law or treaty he had surrendered 
 Arguelles. Mr. Seward prepared an elaborate defence of the affair, 
 in which he examined the state of international law when not regulated 
 by treaty. After citing numerous authorities (a), he came to the con- 
 clusion, "upon the plainest reason, and a uniform concurrence of 
 
 (t) [Forsyth, Cases and Opinions, p. 369. And see Earl Russell to Mr 
 Adams, 12th June, 1862 ; U. S. Dipl. Cor. 1862, p. 111]. 
 
 (u) [Clarke on Extradition (2nd ed.), p. 71, note]. 
 
 (x) [Jefferson's Works (ed. 1854), vol. iii. p. 299]. 
 
 (y) [See Holmes v. Jennison, 14 Peters, 549]. 
 
 (2) [Opinions of Attorneys-General, vol. 3, p. 661]. 
 
 (a) [Wheaton, 115. Walleck, ch. vii. 28. Story, Conflict of Laws, 
 626. U. S. v. Davit, 2 Sunnier, 4fe6].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 159 
 
 authority, that the United States, in its relations to foreign nations, 
 certainly possesses the authority to surrender to the 'pursuing justice of 
 a foreign State, a fugitive criminal found within our territory " (b). 
 After examining the constitutional question, as to whether the President 
 had power to surrender Arguelles, Mr. Seward was of opinion that the 
 act was in pursuance of a national authority sanctioned by the law of 
 nations ; and was in exercise of an executive function belonging to the 
 President's office under the constitution (c). 
 
 In 1873, the earlier rule of refusing to grant extradition without a H6d. 
 treaty, was reverted to in a case where the law should have been pushed Case of 
 to its furthest limits to obtain the conviction of the offender. In that Carl ^ ogt> 
 year, Carl Vogt, a German subject, was accused of robbery, arson, and 
 murder in Belgium, and escaped to the United States. There was at 
 the time a treaty with Germany, but none with Belgium. Both these 
 countries applied for the fugitive, but the United States refused to give 
 him up to either. The application of Germany was refused on the 
 ground that the crimes were not committed within her jurisdiction, and 
 that of Belgium on the ground of there being no treaty (d). In giving 
 an opinion on this case, the Attorney-General said, " Some writers have 
 contended that there is a reciprocal obligation upon nations to surrender 
 fugitives from justice; but it now seems to be generally agreed that this 
 is altogether a matter of comity. It is to be presumed, where there are 
 treaties upon the subject, that fugitives are to be surrendered only in 
 cases and upon the terms specified in such treaties " (e). It seems 
 altogether highly improbable that America will now surrender criminals 
 independently of treaty. 
 
 French jurists are of opinion that the right of sending fugitive I16e. 
 criminals to the country where their crime was committed, is inherent Extradition 
 in every government, and exists independently of all treaties. Treaties * n F rance - 
 are deemed to regulate the mode in which the right is to be exercised, 
 and not to create it (/). A circular of the Minister of Justice, issued in 
 1841, states that most civilized countries, except England and America, 
 would surrender notorious criminals without being bound to do so by 
 treaty (</). 
 
 It is thus evident that the practice of nations does not furnish a Practice of 
 definite rule on the subject. It may therefore be assumed that the States is 
 surrender of criminals is not at present looked upon as an absolute 1?* uni " 
 international duty. Every State may refuse to harbour fugitives if it 
 pleases ; but if it prefers to receive and protect them, other States 
 have no remedy but to enter into treaties with it to regulate the future. 
 
 It seems to be agreed that only criminals accused of grave crimes, n$f 
 such as murder, robbery with violence, forgery, &c., should be sur- What 
 rendered (7i). criminals 
 
 (1) [U. S. Dipl. Cor. 1864, pt. iv. p. 40], 
 
 (c) [Ibid. p. 56]. 
 
 (d) [U. S. Dipl. Cor. 1873, pp. 81 and 300]. 
 
 (e) [Opinions of Attorneys-General (U. S.), vol. xiv. p. 288]. 
 (/) [Mouton, Les Lois penales de la France, torn. i. p. 9J. 
 
 ((/) [Dalloz, Jurisp. Gen. 1841, p. 440]. 
 
 (h) [See Field, International Code, 214, notes, where the provisions of the 
 principal existing treaties are analysed].
 
 160 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 are subject Mr. Field, in his International Code, gives the following classes of 
 to extra- ac t s as no t creating a liability to extradition : (1) Crimes or offences of a 
 purely political character ; (2) any offence committed in furthering 
 civil war, insurrection or political commotion, which, if committed 
 between belligerents, would not be a crime ; (3) desertions from, or 
 evasions of, military or naval service ; (4) offences which, by reason of 
 the lapse of time or any other cause, the demanding nation cannot 
 lawfully punish (i). 
 
 116g. It is an almost universal rule that no State will surrender political 
 Political refugees (&). But if the hospitality of a State is so abused by such 
 e ugees. re f u <r ee s, that the safety of its neighbours becomes imperilled, it then 
 becomes its duty to adopt such measures as will control them, and 
 make their residence harmless to other States (/). After the attempt 
 to assassinate Napoleon III. on the 10th of January, 1858, France 
 represented that the plot had been formed in England, and asked that 
 England should provide for the punishment of such offences. Lord 
 Palmerston accordingly introduced a Bill for the punishment of con- 
 spiracies formed in England to commit murder beyond Her Majesty's 
 dominions, but it fell through (m). Sardinia at the same time passed a 
 law punishing such acts when committed in her territory (n). 
 
 117. By Art. X. of the treaty concluded at Washington on the 
 blrt<fn h " 9th August, 1842, between the United States and Great 
 Treaty. Britain, it was "agreed that Her Britannic Majesty and the 
 United States shall, upon mutual requisitions hy 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, committed within the jurisdiction of either, 
 shall seek an asylum, or shall be found within the terri- 
 tories 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 committed; 
 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 
 
 (i) [Field, International Code, 215]. 
 (k) [Forsyth, Cases and Opinions, p. 371. Woolsey, 79]. 
 (1) [Bluntschli, Le Droit international codifie, 396]. 
 (m) [Annual Reg. 1858, pp. 5, 33, 202. Annuaire des deux Mondes 
 18578, pp. 32, 110, 420]. 
 
 (n) [Annuaire des deux Mondes, 18578, p. 216].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 161 
 
 apprehension of the fugitive or person so charged, that he 
 may he 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 evi- 
 dence be deemed sufficient to sustain the charge, it shall be 
 the duty of the examining judge or magistrate to certify 
 the same to the proper executive authority, that a warrant 
 may issue for the surrender of such fugitive. The expense 
 of such apprehension and delivery shall be borne and de- 
 frayed by the party who makes the requisition and receives 
 the fugitive." 
 
 The construction of this treaty has given rise to some difficulties. It 117a. 
 has been held that piracy in it does not include piracy jure gentium, but Construe- ^ 
 is confined to piracy by municipal law. As pirates jure gentium can be " 
 tried anywhere, it was considered that there was no need to give them 
 lip (o). In another ctise the Lord Chief Justice said, " We must assume 
 that the terms employed are used in a sense which they would have in 
 the law of both countries, and not in a sense wholly peculiar to some 
 local law in one of them." And, therefore, where certain acts were 
 made forgery by the law of New York, but did not amount to forgery 
 in England, or by the general law of the United States, the fugitive 
 accused of such acts was not delivered up (p). If the evidence presents 
 several views of the case, on any one of which, if adopted, there may 
 be a conviction, it has been held in Canada that the prisoner may be 
 extradited (</). It has also been determined in Canada that the extra- 
 dition treaty contains the whole law of surrender between the United 
 States and Canada (r). The offence must also have been committed 
 within the jurisdiction of the country demanding the surrender of the 
 fugitive. In 1858, Thomas Allsop, a British subject, was charged as 
 an accessory before the fact to the murder of a Frenchman in Paris, 
 and escaped to the United States. He could have been tried for this 
 in England (s), but the law officers held that his surrender could not be 
 demanded from America under the treaty, since he was not charged with 
 a crime committed within British jurisdiction (t). But where a person 
 was charged with murder on the high seas, on board a British ship, this 
 
 (o) [In re Tirnan, 5 B. & S. 643 ; 10 L. T. N. S. 449. Cockburn, C.-J., 
 dissented from the opinion of the majority. See also the case of The Chesa- 
 peake, Parl. Papers, N. America, No. 10 (1876), p. 37]. 
 
 (p) [In re Windsor, 6 B. & S. 527 ; In re Tmeman Smith, 4 Upper Canada 
 Practice Rep. 215. As to murder, see Anderson's case, Ann. Reg. 1861, p. 
 520. As to construction of treaty with France, see The-Lennie Mutineers, 
 Parl. Papers, N. America, 1876 (No. 1), p. 97]. 
 ;A>. v. Gould, 20 Upper Canada C. P. 154]. 
 
 (0 
 
 R. v. Tubbee, 1 Upper Canada Prac. Rep. yJ. 
 
 24 & 25 Viet. c. 100, s. 9 ; and 24 & 25 Viet. c. 94, s. 1]. 
 
 Forsyth, Cases and Opinions on Constitutional Law, p. 368. And 
 
 Opinions of Attorneys- General (U. S.), voL via. 215].
 
 162 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 was held to be within British jurisdiction, and the prisoner was accord- 
 ingly surrendered by the United States (). 
 
 117b. I Q 1870, an Extradition Act was passed in England (z), which pro- 
 Extradition vides inter alia, that " A fugitive criminal shall not be surrendered to a 
 Act, 1870. foreign State unless provision is made by the law of that State, or 
 by arrangement, that the fugitive shall not, until he has been restored 
 or had an opportunity of returning to Her Majesty's dominions, be 
 detained or tried in that foreign State for any offence committed prior 
 to his surrender, other than the extradition crime proved by the facts 
 Case of on w hi c h the surrender is grounded " (y). In February, 1875, a person 
 Laurence. named Laurence escaped from the United States, and sailed for Eng- 
 land. The American Government requested that he should be arrested 
 on his arrival on a charge of forgery. This was done, and he was 
 accordingly sent back. Before the trial Her Majesty's Government 
 were informed that he was also to be tried on a charge of smuggling, an 
 offence not included in the treaty. Lord Derby thereupon instructed 
 the British Minister in America to protest if Laurence was tried for any 
 crime but that for which he had been extradited. Mr. Fish contended 
 that neither by the general law of extradition, nor the practice of both 
 countries, could such a proviso be implied in the treaty (z). He cited 
 the cases of Von Aerman (a), Paxton (b), Caldwell (c), and Burley(d), 
 to show that, under the treaty, criminals had been extradited for one 
 offence and tried for another ; and he contended that the Act of 1870, 
 being subsequent to the treaty, and made by only one party, could not 
 incorporate any new terms into it. Lord Derby declined to recede, 
 and refused to give up various other American fugitives, whose sur- 
 render had been asked for, unless the United States would agree to try 
 them for no other offences but those they were extradited for. His 
 Lordship quoted the case of The Lennie mutineers (e), where it was held 
 that a prisoner delivered up under the French Extradition Treaty for 
 murder, could not be tried in England for being an accessory after the 
 fact. The discussion ended, without any conclusion being arrived at ; 
 Mr. Fish informing Lord Derby that Laurence would not be tried for 
 anything but forgery, the offence for which he was surrendered (/). 
 
 The President, in his message to Congress in 1877, stated that both 
 the English and American Governments " are now in accord in the 
 belief that the question is not one that should be allowed to frustrate 
 the ends of justice, or to disturb the friendship between the two nations. 
 
 (u) [In re Bennett, 11 L. T. N. S. 488]. 
 (x) [33 & 34 Viet. c. 52. See Appendix B.]. 
 (y) [Ibid. sect. 3, sub-sect. (2)]. 
 
 (z) [Mr. Fish to CoL Hoffmann, Parl. Papers, N. America, 1876 (No. 1), 
 p. 80]. 
 
 (a) [4 Upper Canada Rep. 288]. 
 
 (b) [10 Lower Canada Jur. 212]. 
 
 (c) [8 Blatchford, C. C. 131]. 
 
 (d) [Parl. Papers, N. America, 1876 (No. 3)]. 
 
 (e) [Old Bailey, 4th May, 1876, Parl. Papers, K America, 1876 (No. 1), 
 p. 97. See 36 & 37 Viet. c. 60, s. 3. Appendix B.]. 
 
 (/) [Mr. Fish to Mr. Pierrepont, Aug. 5th, 1876, Pail. Papers, N America 
 1877 (No. 1), p. 5].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 163 
 
 No serious difficulty has arisen in accomplishing the extradition of 
 criminals where necessary. It is probable that all points of disagree- 
 ment will, in due time, be settled, and, if need be, more explicit decla- 
 rations be made in a new treaty " (</). 
 
 The French Courts have recently laid it down as a principle of inter- French 
 national law that a prisoner whose extradition has been obtained, cannot decision, 
 be tried for any crimes but those mentioned in the demand for his 
 surrender (h). 
 
 By the convention concluded at Washington on the 9th 118. 
 November, 1843, between the United States and France, it betwten 
 
 was agreed : France and 
 
 "Art. 1. That the high contracting parties shall, on re- states, 
 quisitions made in their name, through the medium of their 
 respective diplomatic agents, deliver up to justice persons 
 who, being accused of the crimes enumerated in the next 
 following article, committed within the jurisdiction of the 
 requiring party, shall seek an asylum or shall be found within 
 the territories of the other : Provided, That this shall be done 
 only when the fact of the commission of the crime shall be so 
 established, as that the laws of the country, in which the 
 fugitive or the person so accused shall be found, would justify 
 his or her apprehension and commitment for trial, if the crime 
 had been there committed. 
 
 "Art. 2. Persons shall be so delivered up who shall be 
 charged, according to the provisions of this convention, with 
 any of the following crimes, to wit : murder (comprehending 
 the crimes designated in the French penal code by the terms 
 assassination, parricide, infanticide, and poisoning), or with 
 an attempt to commit murder, or with rape, or with forgery, 
 or with arson, or with embezzlement by public officers, when 
 the same is punishable with infamous punishment. 
 
 "Art. 3. On the part of the French government the sur- 
 render shall be made only by authority of the Keeper of the 
 Seals, Minister of Justice ; and on the part of the Govern- 
 ment of the United States, the surrender shall be made only 
 by the authority of the Executive thereof. 
 
 "Art. 4. The expenses of any detention ,and delivery, 
 effected in virtue of the preceding provisions, shall be borne 
 
 (7) [Annual Message to Congress, 1877. See the Times, 18th Dec. 1877]. 
 (h) [Dalloz. Jurisp. Gen. 1874, p. 502].
 
 164 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 and defrayed by the government in whose name the requisi- 
 tion shall have been made. 
 
 "Art. 5. The provisions of the present convention shall 
 not be applied in any manner to the crimes enumerated 
 in the second Article, committed anterior to the date 
 thereof, nor to any crime or offence of a purely political 
 character." 
 
 119. The following additional article to the above convention was 
 article. concluded between the contracting parties at Washington on 
 the 24th February, 1845, and subsequently ratified. 
 
 " The crime of robbery, denning the same to be the felonious 
 and forcible taking from the person of another, of goods or 
 money, to any value, by violence or putting him in fear ; and 
 the crime of burglary, defining the same to be, breaking and 
 entering by night into a mansion-house of another, with intent 
 to commit felony ; and the corresponding crimes included 
 under the French law in the words vol qualifie crime, not 
 being embraced in the second article of the convention of 
 extradition concluded between the United States and France 
 on the 9th of November, 1843, it is agreed by the present 
 article, between the high contracting parties, that persons 
 charged with those crimes shall be respectively delivered up, 
 in conformity with the first article of the said convention ; 
 and the present article, when ratified by the parties, shall 
 constitute a part of the said convention, and shall have 
 the same force as if it had been originally inserted in the 
 same " (t). 
 12 - In the negotiation of treaties, stipulating for the extradition 
 
 Extradition , j. j * / a , 
 
 treaties. f persons accused or convicted of specified crimes, certain 
 rules are generally followed, and especially by constitutional 
 governments. The principle of these rules is, that a State 
 should never authorize the extradition of its own citizens or 
 subjects, or of persons accused or convicted of political or 
 purely local crimes, or of slight offences, but should confine 
 the provision to such acts as are, by common accord, regarded 
 as grave crimes (k). 
 
 The delivering up by one State of deserters from the mili- 
 
 (i) [The treaties of France with other countries are collected in Billot, De 
 1'Extradition (1874), pp. 471571]. 
 
 (k) Ortolan, Regies Internationales de la Her. t. i. p. 340.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 1G5 
 
 tary or naval service of another also depends entirely upon 
 mutual comity, or upon special compact between different 
 nations (I). 
 
 In countries whose jurisprudence is founded on the civil law, crimes 120a 
 committed abroad by subjects can be punished at home. Such States, Surrender 
 therefore, usually decline to surrender their own subjects (m). But su t,j ec ts by 
 where the common law prevails crimes are regarded as local, and a State, 
 punishable only by the laws of the place where they were committed. 
 In this case the surrender of subjects for crimes committed abroad is 
 absolutely necessary if the offenders are to be punished at all. British 
 courts have no jurisdiction, except in cases of treason and homicide (n), 
 to try British subjects for offences committed in foreign countries. 
 Therefore, unless England agrees to surrender her siibjects accused of 
 other offences abroad, they will escape scot free. This has actually 
 happened in a very recent case. A British subject was, in 1877, accused Case of 
 of larceny in Switxerland, and escaped to England. The Swiss Govern- Wilson, 
 ment applied for his extradition, under their treaty with England made 
 in 1874. In February, 1875, an Order in Council had been issued 
 pursuant to the Extradition Act, 1870, declaring that the Act applied 
 to Switzerland (o). But the Order also contained this clause : " No 
 Swiss shall be delivered up by Switzerland to the Government of the 
 United Kingdom, and no subject of the United Kingdom shall be 
 delivered up by the government thereof to Switzerland." Counsel for 
 the Swiss Government contended that the terms of this clause were not 
 imperative, but merely meant that neither government should be bound 
 to deliver up its own subjects. The Court, however, came to the con- 
 clusion that the clause was imperative, and that under it each govern- 
 ment could not surrender its own subjects. The prisoner was therefore 
 discharged (p). Lord Chief Justice Cockburn characterised this as a 
 blot on our system of extradition. Both England and the United States 
 are willing to surrender their own subjects (g), but continental nations, 
 as a rule, are not. The only means of insuring the punishment of all 
 extraditable offenders is either for continental nations to surrender their 
 own subjects, or for England and America to make their treaties with 
 the continental States non-reciprocal ; that is, that they should agree to 
 surrender their own subjects, while allowing the continental States to 
 keep theirs. M. Bluntschli says, it is thought preferable that a few 
 offenders should escape, rather than that a State should agree to give 
 up its own subjects, although it cannot punish them at home (r). It is 
 
 (1) Byukershoek, Quaest. Jur. Pub. lib. i. cap. 22. Note to Duponceau's 
 Transl. p. 174. 
 
 (m) [As to France, see Billot, De 1'Extradition, p. 64. As to Germany, see 
 Clarke on Extradition (2nd ed.), p. 66]. 
 
 (n) [See ante, 118a]. 
 
 (o) [London Gazette, 1875, vol. i. p. 702]. 
 
 (p) [In re Wilson. See the Times, 3rd Nov. 1877]. 
 
 (q) [Burley's case, Parl. Papers, 1876, N. America (No. 3), p. 12. Per 
 Cockburn, C.-J., in In re Windsor, 6 B. & S. 527 ; Ex partc Von Acrnam, 
 3 Blatchford, C. C. 160]. 
 
 (r) [Le Droit International Codifie, 3)9, note. A royal commission is
 
 166 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 131. 
 Extra- 
 territorial 
 operation 
 of a 
 criminal 
 sentence. 
 
 122. 
 
 Piracy 
 under the 
 law of 
 nations. 
 
 difficult to agree with this. The only real ground for refusing to sur- 
 render subjects is when they are not likely to be fairly treated by the 
 State demanding them ; and this does not apply to most civilized States. 
 The convenience of trying crimes in the country where they were 
 committed is obvious. It is very much easier to transport the criminal 
 to the place of hia offence, than to carry all the witnesses and proofs to 
 some other country where the trial is to be held. 
 
 A criminal sentence pronounced under the municipal law 
 in one State can have no direct legal effect in another. If it 
 is a sentence of conviction, it cannot be executed without the 
 limits of the State in which it is pronounced upon the person 
 or property of the offender ; and if he is convicted of an in- 
 famous crime, attended with civil disqualifications in his own 
 country, such a sentence can have no legal effect in another 
 independent State (s). 
 
 But a valid sentence, whether of conviction or acquittal, 
 pronounced in one State, may have certain indirect and col- 
 lateral effects in other States. If pronounced under the muni- 
 cipal law in the State where the supposed crime was com- 
 mitted, or to which the supposed offender owed allegiance, 
 the sentence, either of conviction or acquittal, would, of 
 course, be an effectual bar (exceptio rei judicatce) to a 
 prosecution in any other State. If pronounced in another 
 foreign State than that where the offence is alleged to have 
 been committed, or to which the party owed allegiance, the 
 sentence would be a nullity, and of no avail to protect him 
 against a prosecution in any other State having jurisdiction of 
 the offence. 
 
 The judicial power of every State extends to the punish- 
 ment of certain offences against the law of nations, among 
 which is piracy. 
 
 Piracy is defined by the text writers to be the offence of 
 depredating on the seas, without being authorised by any 
 sovereign State, or with commissions from different sovereigns 
 at war with each other (t). 
 
 now sitting on the subject of extradition. Its report, however, has not yet 
 appeared]. 
 
 (a) Martens, Precis, &c., liv. iii. ch. 3, 86. Kliiber, Droit des Gens 
 Moderne de 1'Europe, pt. ii. tit. 1, ch. 2, 64, 65. Fcelix, Droit Inter- 
 national Prive, 565. 
 
 (t) See authorities cited in note to the case of United States v. Smith, 
 5 Wheaton, 157.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 107 
 
 Piracy being an offence against the law of nations, acts that amount 122a. 
 to it must be such as are prohibited by all municipal laws, and must ^ '" 7 j^, ents 
 take place where all nations have equal jurisdiction that is, upon the 
 high seas. The offenders, at the time of the commission of the act, 
 should be, in fact, free from lawful authority, or should have made 
 themselves so by their deed ; in short, they must be in the predica- 
 ment of outlaws (u). While the vessel, upon which the offenders are, 
 remains subject to the authority of the State to which it belongs, the 
 crime is not piracy jure gentium ; but as soon as this authority has been 
 thrown off, either by a portion of the crew or passengers overpowering 
 the rest, or by the unanimous act of all on board, the mutineers become 
 pirates, if they have committed any crimes in obtaining possession of 
 the ship, or if they stop and molest any other vessels or persons on the 
 high seas (#). 
 
 Dr. Lushington has said, " I apprehend that in the administration of 
 our criminal law, generally speaking, all persons are held to be pirates 
 who are found guilty of piratical acts ; and piratical acts are robbery 
 and murder on the high seas * * * * It was never deemed necessary 
 to inquire whether the parties so convicted had intended to rob or to 
 murder on the high seas indiscriminately" (x). 
 
 The officers and crew of an armed vessel commissioned 123. 
 against one nation, and depredating upon another, are not liable c . in , ls ~ 
 to he treated as pirates in thus exceeding their authority, cruisers. 
 The State by whom the commission is granted, being respon- 
 sible to other nations for what is done by its commissioned 
 cruisers, has the exclusive jurisdiction to try and punish all 
 offences committed under colour of its authority (y). 
 
 The offence of depredating under commissions from dif- 
 ferent sovereigns at war with each other is clearly piratical, 
 since the authority conferred by one is repugnant to the 
 other ; but it has been doubted how far it may be lawful to 
 cruise under commissions from different sovereigns allied 
 against a common enemy. The better opinion, however, 
 seems to be, that although it might not amount to the crime 
 of piracy, still it would be irregular and illegal, because the 
 two co-belligerents may have adopted different rules of con- 
 duct respecting neutrals, or may be separately bound by 
 engagements unknown to the party (2). 
 
 (w) [Wheaton, by Dana,, Note 83, p. 194]. 
 
 (v) [Forsyth, Cases and Opinions, p. 117]. 
 
 (x) [The Magellan Pirates, 16 Jurist, 1145. Shipping and Mercantile 
 Gazette, 27th July, 1853]. 
 
 (y) Byukershoek, Quist. Jur. Pub. lib. i. cap. 17. Rutherforth's Inst. 
 vol. ii. p. 595. 
 
 (z) Bynkershoek, Quvest. Jur. Pub. lib. i. cap. 17, p. 130, Uuponccau's
 
 168 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 124. 
 
 Piracy 
 triable 
 every- 
 where. 
 
 Distinc- 
 tion 
 between 
 piracy by 
 the law of 
 nations 
 and piracy 
 under 
 municipal 
 statutes. 
 
 Pirates being the common enemies of all mankind, and 
 all nations having an equal interest in their apprehension 
 and punishment, they may be lawfully captured on the 
 high seas by the armed vessels of any particular State, 
 and brought within its territorial jurisdiction for trial in its 
 tribunals (a). 
 
 This proposition, however, must be confined to piracy as 
 defined by the law of nations, and cannot be extended to 
 offences which are made piracy by municipal legislation. 
 Piracy under the law of nations may be tried and punished in 
 the courts of justice of any nation, by whomsoever and 
 wheresoever committed; but piracy created by municipal 
 statute can only be tried by that State within whose terri- 
 torial jurisdiction, and on board of whose vessels, the offence 
 thus created was committed. There are certain acts which 
 are considered piracy by the internal laws of a State, to 
 which the law of nations does not attach the same significa- 
 tion. It is not by force of the international law that those 
 who commit these acts are tried and punished, but in conse- 
 quence of special laws which assimilate them to pirates, and 
 which can only be applied by the State which has enacted 
 them, and then with reference to its own subjects, and in 
 places within its own jurisdiction. The crimes of murder 
 and robbery committed by foreigners, on board of a foreign 
 vessel, on the high seas, are not justiciable in the tribunals 
 of another country than that to which the vessel belongs ; but 
 if committed on board of a vessel not at the time belonging, 
 in fact as well as right, to any foreign power or its subjects, 
 but in possession of a crew acting in defiance of all law, and 
 acknowledging obedience to no flag whatsoever, these crimes 
 may be punished as piracy under the law of nations in the 
 courts of any nation having custody of the offenders (b). 
 
 Transl. torn. ii. p. 236. Valin, Commentaire sur 1'Ord. de la Marine. " The 
 law," says Sir L. Jenkins, " distinguishes between a pirate who is a high- 
 wayman, and sets up for robbing, either having no commission at all, or else 
 
 hath two or three, and a lawful man of war that exceeds his commission." 
 
 Works, vol. ii. p. 714. 
 
 (a) " Every man, by the usage of our European nations, is justiciable in the 
 place where the crime is committed : so are pirates, being reputed out of the 
 protection of all laws and privileges, and to be tried in what ports soever they 
 may be taken." Sir L. Jenkins' Works, ib. 
 
 (b) U. S. v. Klintock, 5 Wheaton, 144 ; U. S. v. Pirates, ibid. 184.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 169 
 
 When an insurrection or rebellion has broken out in any State, the 124a. 
 rebel cruisers may be treated as pirates by the established government, Insurgents 
 it' the rebel government has not been recognised as a belligerent by the ^j^at'lsea!! 
 parent State, or by foreign nations ; but this right ceases to exist on 
 the recognition of the rebels as belligerents (e). During the American 
 war of independence, an Act was passed by the English parliament, the 
 object of which was to declare that the legal status of the revolted Ameri- 
 cans was that of felons or pirates, but as a matter of fact none of the 
 prisoners were so treated (/). The American civil war assumed such 
 gigantic proportions at the outset, that there was very little time during 
 which it could be doubted whether it was actually a civil war or only a 
 partial insurrection, and the President's proclamation of the 19th April, 
 1861, declaring the Confederate ports blockaded, settled the point, by 
 virtually recognising the South as belligerents. From that time the 
 duly commissioned Southern cruisers became entitled to the rights of 
 war, and ceased to be pirates. 
 
 When rebels cannot produce a regular commission from their govern- 124b. 
 ment, the question of whether they are pirates becomes to a great extent Rfbels 
 one of intention. If their acts are not done with a piratical intent, but ""^,^"3 * 
 with an honest intention to assist in the war, they cannot be treated as s ion. 
 pirates. But it is not because they assume the character of belligerents, 
 that they can thereby protect themselves from the consequences of acts 
 really piratical (g). If their acts are at first unauthorised, biit are sub- 
 sequently avowed by the insurgent government, this may or may not 
 take them out of the category of pirates. A recognition of belligerency 
 does not imply that other acts than those of war will be recognised, and 
 the avowal of any past proceedings is not an act of war (h). 
 
 A case which gave rise to considerable discussion at the time, occurred 124c. 
 during the Neapolitan insurrection of 1857. The case of 
 
 The Cagliari, a Sardinian merchant steamer, running between Genoa T. he . C(ig ~ 
 and Tunis, left Genoa, on one of her regular voyages, on the 25th June, 
 1857, with thirty-three passengers, a crew of thirty-two men, and a cargo 
 partly consisting of firearms. While on the high seas on the same even- 
 ing, about twenty-five of her passengers suddenly produced concealed 
 arms, took forcible possession of the ship, placed the master and some of 
 the other passenger^ and crew under restraint, and took the ship to 
 Ponga, a Neapolitan fortress and prison on an island. The mutineers 
 landed at Ponga, and overpowering the garrison took possession of the 
 fortress, and liberated 300 prisoners. Thus reinforced they committed 
 other excesses, and then proceeded in The Cagliari to Sapri, where they 
 were soon after all killed or taken prisoners by the Neapolitan troops. 
 The master then resumed his authority over The Cagliari, and left 
 Sapri, announcing his intention of going to Naples and informing the 
 
 (e) [Rose v. Himcly, 4 Cranch, 272 ; The Prize Causes, 2 Black. 273 
 Miller v. U. S. 11 Wallace, 268. See ante, 27a, et seq.}. ' 
 
 (f) [17 Geo. III. c. 9]. 
 
 ((/) [In re Tirnan, 5 B. & S. 643 : 10 L. T. N. S. 449 ; U. S. v. Klintock 
 5 Wheaton, 149]. 
 
 (h) [See judgment of Mr. Justice Wilson in the case of Burley, Par]. Papers 
 N. America, 1876 (No. 3), p. 19].
 
 170 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 Neapolitan government of what had occurred. About twelve miles west 
 of Capri, on the high seas, The Cagliari fell in with two Neapolitan 
 cruisers, Avho boarded her, and not deeming the explanations of the 
 captain satisfactory, took possession of the ship and conveyed her to 
 Naples. The ship was condemned as prize by a Neapolitan Prize Court, 
 and the crew were imprisoned. TJie Cagliari at the time of her capture 
 carried the Sardinian flag, and on receiving the news of this event, the 
 Sardinian government demanded the release of the ship and her crew. 
 Naples refused on the ground that the vessel had been engaged in war- 
 like acts against the country, and that the master and crew had assisted 
 in these acts. Among the crew were two British subjects, named Watts 
 and Park, who acted as engineers. England demanded their release, but 
 it was not until they had been confined for ten months that Naples sur- 
 rendered them, and then only upon the ground of yielding to superior 
 force. The ship and the rest of the crew were afterwards surrendered 
 on the same ground to a British consul no notice being taken of Sar- 
 dinia and were sent by the consul to Genoa. The right of Sardinia to 
 claim their release was never admitted by Naples. 
 
 After this, the Superior Prize Court of Naples decided that The Cagliari 
 was rightly seized on the high seas, as having been engaged in acts 
 which were partly warlike and partly piratical, with the fault of her 
 master and crew. 
 
 The British law officers were of opinion that the seizure was, under 
 the circumstances, justifiable, but that there was no ground for the con- 
 demnation, or for the imprisonment of the two British subjects. They 
 said, " We foi'bear from enlarging upon the serious consequences which 
 would, in our opinion, result to every maritime State, and to none more 
 than Great Britain, from it being held that nothing short of complete legal 
 proof of guilt or the actual commission of crime, at the moment of capture, 
 will justify a national ship of war in capturing a vessel under such cir- 
 cumstances as those in which The Cagliari was captured." There was no 
 doubt the ship had been concerned in the insurrectionary movement, 
 and the captors could not be expected to institute a full inquiry on the 
 high seas, for the purpose of ascertaining whether the actual crew found 
 on board had participated in this or not. 
 
 The case, however, was materially altered when it came before the 
 Prize Court at Naples. The evidence clearly showed that the captain 
 and crew had acted under compulsion, and that the owners of the ship 
 were entirely innocent. Nor was any complicity proved against the 
 two English engineers. Naples ought, therefore, to have immediately 
 surrendered the ship to Sardinia, and liberated the crew. The only jus- 
 tifiable grounds for such a seizure, were on the supposition that The 
 Cagliari was a rebel vessel, and not entitled to carry the Sardinian flag. 
 An insurrection may be carried on by sea as well as by land, and the 
 government may capture ships of its revolted subjects on the high seas. 
 But as no war existed at the time, Naples had no belligerent right of 
 search, or of bringing foreign vessels for adjudication before a Prize 
 Court. A Prize Court was not the proper tribunal to hear the case. If 
 Tlie Cayliari was to be adjudicated on at all, it should have been before 
 a municipal court, and her crew should have been tried as rebels or
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 171 
 
 pirates. As it was proved that she was entitled to carry the Sardinian 
 flag, every claim to her detention thereupon disappeared, since no ship 
 of a foreign State can be seized on the high seas during peace. An 
 indemnity of 3000 waa paid to England on behalf of Watts and Park, 
 but no compensation was made to the Sardinian government (i). 
 
 Another case occurred in 1873. The Virginia was registered as a 124d. 
 vessel of the United States in 1870. She then left the United States T ^j' 
 and made several voyages without returning there, but she preserved 
 her American papers and carried the American flag when in foreign 
 ports. In October, 1873, and while an insurrection was raging in Cuba, 
 she cleared from Kingston, in Jamaica, with her crew and about 108 
 passengers. Certain arms and ammunition she had brought into 
 Kingston were seized and forfeited under the Customs' laws, and she 
 left that port apparently without any arms. She sailed from Kingston 
 ostensibly for Port Limon, in Costa Rica, but in reality proceeded 
 towards Cuba. While on the high seas and flying the American flag, 
 she was chased by a Spanish ship of war, and being captured was car- 
 ried into Santiago da Cuba. On arriving there the Spanish authorities 
 tried the passengers and crew by court martial, and shot thirty- seven of 
 them. Of these sixteen were British subjects. It appeared that the 
 majority of the passeiigers and crew were Cubans, and that their real 
 intention was to assist in the Cuban insurrection. But some of them, 
 including some of the British subjects who were shot, had shipped on 
 the supposition that The Virginius was going on a bond fide voyage to 
 Costa Rica. When these executions became known, England and Ame- 
 rica promptly interfered, and called upon the Spanish government to pre- 
 vent any further slaughter of their subjects. Matters became very serious 
 between Spain and the United States, and at one time war seemed im- 
 minent. Spain, however, was willing to make reasonable concessions, 
 and at a conference held at Washington, she agreed to restore The Vir- 
 ginius and the survivors of her passengers and crew, and to salute the 
 United States flag, unless before the 25th December, 1873, Spain could 
 prove to the satisfaction of the American government that The Virginius 
 was not entitled to carry their flag. The ship was accordingly given up 
 to a United States ship of war, with the survivors, but it being shown 
 before the appointed time that The Virginius was not legally entitled to 
 the American flag, the salute was dispensed with. England also de- 
 manded and obtained compensation for the families of the executed 
 British subjects (k). The Virginius was not a pirate. She was, no 
 doubt, on her way to assist in an insurrection, but at the time she was 
 captured she was on the high seas, and had not as yet committed any 
 overt acts implicating her in the revolt. Spain was entitled, perhaps, 
 to treat her own subjects as she pleased, but the execution of foreigners 
 found on board a foreign ship, upon the mere supposition that they were 
 going to assist rebels, was wholly unjustifiable. 
 
 (i) [See Parl. Papers, 1857. Correspondence respecting The Caglia-rl. 
 Annuaire des deux mondes, 1857 8, p. 209. Annual Reg. 1858, pp. 63 66 
 and p. 181]. 
 
 (k) [See Parl. Papers. Correspondence respecting Tlic Virginius (C. 991). 
 Spain (No. 3), 1874. Annual Reg. 1873, p. 253. U. S. Dipl. Cor. 1874]. '
 
 172 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 124e. One of the most curious cases has recently occurred off the coast of 
 The Peru. Pierola, an insurgent leader, seized upon the Peruvian turret 
 
 <car ' ship Huascar, and established himself on hoard with all his adherents. 
 The revolt had no hasis of operation on land, and consequently could 
 not by any possibility amount to a war. The Huascar cruised about the 
 coast, and stopped several British ships, in one case demanding any 
 despatches there might be for the Peruvian government, in another 
 asking if there were any troops on board, in another seizing on a 
 quantity of coal. A British subject was also detained on board and 
 compelled to act as engineer. No actual violence was resorted to, as no 
 resistance was in any case offered, but the demands were made by officers 
 armed with swords and pistols. The British Admiral (/) commanding 
 on the Pacific station, on hearing of these acts, called upon The Huascar 
 to surrender, and offered, if this was done without resistance to land the 
 crew at some neutral place within reasonable distance. The Huascar 
 refused, and thereupon the admiral attacked her, not far from the shore, 
 with two English wooden vessels, The Shah and The Amethyst. Great 
 gallantry was displayed on both sides in the action, but no lives were 
 lost. After a time The Huascar retired into shallow water, and an expe- 
 dition was fitted out from the British ships to blow her up at night with 
 a torpedo. She, however, eluded this, and shortly after surrendered to 
 the Peruvian government. That government had previously disclaimed 
 all connection with, or responsibility for, the acts of The Huascar. In 
 the discussion in Parliament upon this case the Attorney-General said, 
 " The ship had committed acts which made her an enemy of Great 
 Britain ; and that, therefore, the admiral in command of The Shah was 
 justified in the course which he took. TJie Huascar was not in a position 
 to claim belligerent rights, in that she was a ship in the hands of insur- 
 gents who had not reached a position entitling them to say that they 
 were, or were likely to be, able to supplant the government against 
 which they had rebelled, and to conduct the affairs of the country. As 
 a matter of fact, The Huascar was simply a rover of the sea, and she had 
 committed acts which entitled Admiral De Horsey, in command of one 
 of Her Majesty's ships, to make war upon her." Sir W. Harcourt had 
 asked in the House, " whether, if The Huascar had been taken by the 
 admiral, he (the Attorney-General) would have advised a prosecution 
 for piracy against the crew ? In strictness they were pirates, and might 
 have been treated as such, but it was one thing to assert that they had 
 been guilty of acts of piracy, and another to advise that they should be 
 tried for their lives and hanged at Newgate. This vessel, The Huascar, 
 was under no commission of any sort. She was roving the seas without 
 a commission, having been taken possession of by a mutinous crew . . . 
 What right had The Huascar to stop a British merchant vessel and 
 demand to see whether she had any despatches on board ? " He concluded 
 that the reasons given by the admiral for his acts were perfectly just and 
 proper (m). The Peruvian government expressed their intention of asking 
 
 (1) [Rear-Admiral De Horsey]. 
 
 (m) [See the Times, Aug. 13th, 1877, p. 7. And see Parl. Papers, 1877. 
 on this subject, No. 369].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 173 
 
 reparation from England (ft) ; but as the law officers gave it as their 
 opinion that Admiral de Horsey 's proceedings were in law justifiable, 
 and as the Lords of the Admiralty, although of opinion that it would 
 have been better first to endeavour to obtain redress by means of remon- 
 strances, nevertheless approved of what he did, it does not seem likely 
 that England will accord any reparation to Peru (o). Nor is any due. 
 The Peruvian government had expressly disclaimed all connection with 
 the vessel, and refused to be responsible for her acts. Nor were they, 
 indeed, capable of controlling her. As soon, therefore, as she had 
 molested British commerce, there was no other course open to the British 
 admiral, but to take the matter into his own hands. 
 
 The African slave trade, though prohibited by the muni- 125. 
 cipal laws of most nations, and declared to be piracy by the whither 1 
 statutes of Great Britain and the United States, and since prohibited 
 the treaty of 1841, with Great Britain, by Austria, Prussia, O f nations 
 and Russia, is not such by the general international law ; and 
 its interdiction cannot be enforced by the exercise of the 
 ordinary right of visitation and search. That right does not 
 exist, in time of peace, independently of special compact (p). 
 
 The African slave trade, once considered not only a lawful, 
 but desirable branch of commerce, a participation in which 
 was made the object of wars, negotiations, and treaties be- 
 tween different European States, is now denounced as an 
 odious crime by the almost universal consent of nations. 
 This branch of commerce was, in the first instance, succes- 
 sively prohibited by the municipal laws of Denmark, the 
 United States, and Great Britain, to their own subjects. Its 
 final abolition was stipulated by the treaties of Paris, Kiel, 
 and Ghent, in 1814, confirmed by the declaration of the Con- 
 gress of Vienna of the 8th of February, 1815, and reiterated 
 by the additional article annexed to the treaty of peace 
 concluded at Paris on the 20th November, 1815 (q). The 
 accession of Spain and Portugal to the principle of the aboli- 
 tion was finally obtained by the treaties between Great Britain 
 and those powers of the 23rd September, 1817, and the 22nd 
 January, 1815. And by a convention concluded with Brazil 
 in 1826, it was made piratical for the subjects of that country 
 to be engaged in the trade after the year 1830. 
 
 () [Parl. Papers, 1877, Peru (No. I.), p. 18]. 
 
 (o) [Ibid. pp. 14, 24]. 
 
 (p) Le Louis, Uods. Ad. 210 ; La Jeune Eughiic, 10 Wheaton, 66. 
 
 (q) [See Hertslet, Map of Europe by Treaty, vol. i. pp. 60, 695].
 
 174 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 126. By the treaties of the 30th November, 1831, and 22nd May, 
 
 Treaties to 
 
 suppress 1833, between France and Great Britain, to which nearly all 
 trad 81 ^ 6 ^ e mar iti me powers of Europe have subsequently acceded, 
 the mutual right of search was conceded, within certain geo- 
 graphical limits, as a means of suppressing the slave trade. 
 The provisions of these treaties were extended to a wider 
 range by the Quintuple Treaty, concluded on the 20th De- 
 cember, 1841, between the five great European powers, and 
 subsequently ratified between them, except by France, which 
 power still remained only bound by her treaties of 1831 
 and 1833 with Great Britain. By the treaty concluded at 
 Washington, the 9th August, 1842, between the United 
 States and Great Britain, referring to the 10th Article of the 
 Treaty of Ghent, by which it had been agreed that both the 
 contracting parties should use their best endeavours to pro- 
 mote the entire abolition of the traffic in slaves, it was pro- 
 vided, Article 8, that "the parties mutually stipulate that 
 each shall prepare, equip, and maintain in service, on the 
 coast of Africa, a sufficient and adequate squadron, or naval 
 force of vessels, of suitable numbers and descriptions, to 
 carry in all not less than eighty guns, to enforce, separately 
 and respectively, the laws, rights, and obligations of each of 
 the two countries, for the suppression of the slave trade, the 
 said squadrons to be independent of each other, but the two 
 governments stipulating, nevertheless, to give such orders to 
 the officers commanding their respective forces, as shall 
 enable them most effectually to act in concert and co-operation, 
 upon mutual consultation, as exigencies may arise, for the 
 attainment of the true object of this article ; copies of all 
 such orders to be communicated by each government to the 
 other, respectively." By the Treaty of the 29th May, 1845, 
 between France and Great Britain, new stipulations were, 
 entered into between the two powers, by which a joint co- 
 operation of their naval forces on the coast of Africa, for the 
 suppression of the slave trade, was substituted for the 
 mutual right of search, provided by the previous treaties of 
 1831 and 1833. 
 
 126a. By a treaty concluded between England and the United States on the 
 
 Treaty of 7th April, 1862, it is agreed that the high contracting parties mutually 
 
 consent that those ships of their respective navies, which shall be pro-
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 175 
 
 vided with special instructions, may visit such merchant vessels of the England 
 two nations as may upon reasonable grounds be suspected of having ^. tlie 
 been fitted out for, or being engaged in the slave trade. This right of g^^ s 
 search is only to be exercised by authorized vessels of war, and only as 
 regards merchant vessels ; nor may it be put in force within the limits 
 of a settlement or port, or within the territorial waters of the other 
 party. The mode in which the search is to be conducted, and the geo- 
 graphical limits within which the right may be enforced, are defined by 
 the treaty (r). An additional convention concluded on the 3rd June, 
 1870, abolished certain courts that had been established in Africa to 
 adjudicate on vessels alleged to be slavers, and provides that suspected 
 vessels shall be brought before the nearest Prize Court of their own 
 country, or handed over to one of its cruisers, if one should be near the 
 scene of capture. Instructions for the ships of each country employed 
 in this service are annexed to the treaty (s). 
 
 This general concert of nations to extinguish the traffic . 1 . 27 - 
 has given rise to the opinion, that, though once tolerated, and O f British 
 even protected and encouraged by the laws of every maritime aml Amen- 
 country, it ought henceforth to be considered as interdicted by 
 the international code of Europe and America. This opinion 
 first received judicial countenance from the judgment of the 
 Lords of Appeal in Prize Causes, pronounced in the case of 
 an American vessel, The Amedie, in 1807, the trade having 
 been previously abolished by the municipal laws of the 
 United States and of Great Britain. The judgment of the 
 Court was delivered by Sir William Grant, in the following 
 terms : 
 
 " This ship must be considered as being employed, at the 128. 
 time of capture, in carrying slaves from the coast of Africa J^; e 
 to a Spanish colony. We think that this was evidently the 
 original plan and purpose of the voyage, notwithstanding the 
 pretence set up to veil the true intention. The claimant, 
 however, who is an American, complains of the capture, and 
 demands from us the restitution of property, of which, he 
 alleges, that he has been unjustly dispossessed. In all the 
 former cases of this kind which have come before this Court, 
 the slave trade was liable to considerations very different from 
 those which belong to it now. It had, at that time, been 
 prohibited (so far as respected carrying slaves to the colonies 
 of foreign nations) by America, but by our own laws it was 
 
 (r) [U. S. Statutes at Large, vol. xii. p. 279]. 
 (s) [Ibid. vol. xvi. p. 777].
 
 176 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 still allowed. It appeared to us, therefore, difficult to con- 
 sider the prohibitory law of America in any other light than 
 as one of those municipal regulations of a foreign State of 
 which this Court could not take any cognizance. But by the 
 alteration which has since taken place, the question stands on 
 different grounds, and is open to the application of very dif- 
 ferent principles. The slave trade has since been totally 
 abolished by this country, and our legislature has pronounced 
 it to be contrary to the principles of justice and humanity. 
 Whatever we might think, as individuals, before, we could 
 not, sitting as judges in a British court of justice, regard the 
 trade in that light while our own laws permitted it. But we 
 can now assert that this trade cannot, abstractedly speaking, 
 have a legitimate existence. 
 
 " When I say abstractedly speaking, I mean that this coun- 
 try has no right to control any foreign legislature that may 
 think fit to dissent from this doctrine, and to permit to its 
 own subjects the prosecution of this trade ; but we have now 
 a right to affirm that primd facie the trade is illegal, and thus 
 to throw on claimants the burden of proof, that, in respect of 
 them, by the authority of their own laws, it is otherwise. As 
 the case now stands, we think we are entitled to say that 
 a claimant can have no right, upon principles of universal 
 law, to claim the restitution in a Prize Court of human 
 beings carried as slaves. He must show some right that has 
 been violated by the capture, some property of which he has 
 been dispossessed, to which he ought to be restored. In this 
 case, the laws of the claimant's country allow of no property 
 such as he claims. There can, therefore, be no right to resti- 
 tution. The consequence is, that the judgment must be 
 affirmed " (t). 
 
 129. In the case of The Fortuna, determined in 1811, in the 
 f 0r " Hi gk Court of Admiralty, Lord Stowell, in delivering the 
 judgment of the Court, stated that an American ship, quasi 
 American, was entitled, upon proof, to immediate restitution ; 
 but she might forfeit, as other neutral ships might, that title, 
 by various acts of misconduct, by violations of belligerent 
 rights most clearly and universally recognised. But though 
 
 (t) Acton's Admiralty Reports, vol. i. p. 240.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 177 
 
 the Prize Court looked primarily to violations of belligerent 
 rights as grounds of confiscation in vessels not actually be- 
 longing to the enemy, it had extended itself a good deal 
 beyond considerations of that description only. It had been 
 established by recent decisions of the Supreme Court, that 
 the Court of Prize, though properly a court purely of the law 
 of nations, has a right to notice the municipal law of this 
 country in the case of a British vessel which, in the course of 
 a prize-proceeding, appears to have been trading in violation 
 of that law, and to reject a claim for her on that account. 
 That principle had been incorporated into the prize-law of this 
 country within the last twenty years, and seemed now fully 
 incorporated. A late decision in the case of The Amcdie 
 seemed to have gone the length of establishing a principle, 
 that any trade contrary to the general law of nations, although 
 not tending to, or accompanied with, any infraction of the law 
 of that country whose tribunals were called upon to consider 
 it, might subject the vessels employed in that trade to confis- 
 cation. The Amedie was an American ship, employed in 
 carrying on the slave trade ; a trade which this country, since 
 its own abandonment of it, had deemed repugnant to the law 
 of nations, to justice, arid humanity ; though without pre- 
 suming so to consider and treat it where it occurs in the prac- 
 tice of the subjects of a State which continued to tolerate 
 and protect it by its own municipal regulations ; but it put 
 upon the parties the burden of showing that it was so 
 tolerated and protected, and in failure of producing such 
 proof, proceeded to condemnation, as it did in the case of that 
 vessel. " How far that judgment has been universally con- 
 curred in and approved," continued Lord Stowell, "is not for 
 me to inquire. If there be those who disapprove of it, I cer- 
 tainly am not at liberty to include myself in that number, 
 because the decisions of that court bind authoritatively the 
 conscience of this ; its decisions must be conformed to, and 
 its principles practically adopted. The principle laid down in 
 that case appears to be, that the slave trade, carried on by a 
 vessel belonging to a subject of the United States, is a trade 
 which, being unprotected by the domestic regulations of their 
 legislature and government, subjects the vessel engaged in it 
 to a sentence of condemnation. If the ship should therefore
 
 178 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 turn out to be an American, actually so employed it matters 
 not, in my opinion, in what stage of the employment, whether 
 in the inception, or the prosecution, or the consummation of 
 it the case of The Amedie will bind the conscience of this 
 court to the effect of compelling it to pronounce a sentence of 
 confiscation " (u). 
 
 130. In a subsequent case, that of The Diana, Lord Stowell 
 limited the application of the doctrine invented by Sir W. 
 Grant, to the special circumstances which distinguished the 
 case of The Amedie. The Diana was a Swedish vessel, cap- 
 tured by a British cruiser on the coast of Africa whilst 
 actually engaged in carrying slaves to the Swedish West 
 India possessions. The vessel and cargo were restored to the 
 Swedish owner, on the ground that Sweden had not then pro- 
 hibited the trade by law or convention, and still continued to 
 tolerate it in practice. It was stated by Lord Stowell, in 
 delivering the judgment of the High Court of Admiralty in 
 this case, that England had abolished the trade as unjust 
 and criminal ; but she claimed no right of enforcing that pro- 
 hibition against the subjects of those States which had not 
 adopted the same opinion ; and England did not mean to set 
 herself up as the legislator and custos morum for the whole 
 world, or presume to interfere with the commercial regulations 
 of other States. The principle of the case of The Amedie 
 was, that where the municipal law of the country to which the 
 parties belonged had prohibited the trade, British tribunals 
 would hold it to be illegal upon general principles of justice 
 and humanity ; but they would respect the property of per- 
 sons engaged in it under the sanction of the laws of their own 
 country (x). 
 
 The above three cases arose during the continuance of the 
 war, and whilst the laws and treaties prohibiting the slave- 
 trade were incidentally executed through the exercise of the 
 belligerent right of visitation and search. 
 
 131. In the case of The Diana, Lord Stowell had sought to dis- 
 The Louvs., e circumstances of that case from those of The 
 
 Amedie, so as to raise a distinction between the case of the 
 subjects of a country which had already prohibited the slave - 
 
 (u) 1 Dods. Ad. Rep. 81. 
 (x) I Dods. Ad. Rep. 95.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 179 
 
 trade, from that of those whose governments still continued 
 to tolerate it. At last came the case of the French vessel 
 called The Louis, captured after the general peace, by a 
 British cruiser, and condemned in the inferior Court of 
 Admiralty. Lord Stowell reversed the sentence in 1817, 
 discarding altogether the authority of The Amedie as a pre- 
 cedent, both upon general reasoning, which went to shake 
 that case to its very foundations, and upon the special ground, 
 that even admitting that the trade had been actually pro- 
 hibited by the municipal laws of France (which was doubtful), 
 the right of visitation and search (being an exclusively belli- 
 gerent right), could not consistently with the law of nations 
 be exercised, in time of peace, to enforce that prohibition by 
 the British courts upon the property of French subjects. In 
 delivering the judgment of the High Court of Admiralty in 
 this case, Lord Stowell held that the slave-trade, though 
 unjust and condemned by the statute law of England, was not 
 piracy, nor was it a crime by the universal law of nations. 
 A court of justice, in the administration of law, must look to 
 the legal standard of morality a standard which, upon a 
 question of this nature, must be found in the law of nations 
 as fixed and evidenced by general, ancient, and admitted 
 practice, by treaties, and by the general tenor of the laws, 
 ordinances, and formal transactions of civilized States ; and 
 looking to these authorities, he found a difficulty in main- 
 taining that the transaction was legally criminal. To make 
 it piracy or a crime by the universal law of nations, it 
 must have been so considered and treated in practice by 
 all civilized States, or made so by virtue of a general 
 convention. 
 
 The slave-trade, on the contrary, had been carried on by all 
 nations, including Great Britain, until a very recent period, 
 and was still carried on by Spain and Portugal, and not yet 
 entirely prohibited by France. It was not, therefore, a 
 criminal act by the consuetudinary law of nations ; and every 
 nation, independently of special compact, retained a legal 
 right to carry it on. No nation could exercise the right of 
 visitation and search upon the common and unappropriated 
 parts of the ocean, except upon the belligerent claim. No one 
 nation had a right to force its way to the liberation of Africa 
 
 N 2
 
 180 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 by trampling on the independence of other States; or to 
 procure an eminent good by means that are unlawful ; or to 
 press forward to a great principle by breaking through other 
 great principles that stand in the way. The right of visita- 
 tion and search on the high seas did not exist in time of 
 peace. If it belonged to one nation it equally belonged to all, 
 and would lead to gigantic mischief and universal war. 
 Other nations had refused to accede to the British proposal of 
 a reciprocal right of search in the African seas, and it would 
 require an express convention to give the right of search in 
 time of peace (y). 
 
 132. The leading principles of this judgment were confirmed in 
 
 < Wittu 182 kj tne Court of King's Bench, in the case of Madrazo 
 v. Willes, in which the point of the illegality of the slave- 
 trade, under the general law of nations, came incidentally in 
 question. The court held that the British statutes against 
 the slave-trade were applicable to British subjects only. The 
 British Parliament could not prevent the subjects of other 
 States from carrying on the trade out of the limits of the 
 British dominions. If a ship be acting contrary to the 
 general law of nations, she is thereby subject to condemna- 
 tion ; but it was impossible to say that the slave-trade is 
 contrary to the law of nations. It was, until lately, carried 
 on by all the nations of Europe ; and a practice so sanctioned 
 could only be rendered illegal on the principles of interna- 
 tional law, by the consent of all the powers. Many States 
 had so consented, but others had not ; and the adjudged 
 cases had gone no farther than to establish the rule, that 
 ships belonging to countries that had prohibited the trade 
 were liable to capture and condemnation, if found engaged 
 in it (2). 
 
 132a. The subsequent case of Buron v. Denman (a), places the matter in a 
 
 Buron v. still clearer light. A treaty was entered into between Commander 
 
 Denman. Denman, of H.M.S. Wanderer, and King Sciacca, the Sovereign of 
 
 Gallinas, a territory near Sierra Leone, for the abolition of slavery in 
 
 his dominions. Acting upon this treaty, Commander Denman destroyed 
 
 certain barracoons of the slave dealers, and liberated the slaves, whom 
 
 (y) 2 Dods. Ad. Rep. 210. 
 
 (s) 3 Barn. & Aid. 353. [See also Santos v. midge, 6 C. B. N. S. 841 ; 
 29 L. J. C. P. 348 ; R. v. Zulueta, 1 C. & R. 215 ; Pinner v. Arnold 
 C. M. & R. 613 ; Eposiio v. Eowden, 7 E. & B. 763]. 
 
 (a) [3 Exch. 167 ; and see Forbes v. Cochrane, 2 B. & C. 448].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 181 
 
 he conveyed to Sierra Leone. Some of these slaves belonged to Buron, 
 the plaintiff. Baron Parke, in summing up, directed the jury, that the 
 proceedings of Commander Denman, at the time of their execution, had 
 been wrongful, and would have entitled the plaintiff to recover for the 
 loss of his goods and slaves, were it not that the defendant had acted 
 under the authority of a political treaty, which had been subsequently 
 ratified by the Home Government, whereof his acts had become acts of 
 State, for which the Government, and not its officer, was responsible. 
 
 These cases establish beyond controversy, that the tribunals of England 
 recognize the right of property of the owner in the slave, so long as the 
 slave is in the country by the law of which the owner's right is up- 
 held (6). It has also been held in a recent case in the supreme court of 
 the United States, that a promissory note given as the price of slaves in a 
 State where slavery was at the time lawful, could be enforced after the 
 abolition of slavery throughout the Union (c). 
 
 A similar course of reasoning was adopted by the supreme 133. 
 court of the United States in the case of Spanish and Por- ^^ 
 tuguese vessels captured by American cruisers whilst the 
 trade was still tolerated by the laws of Spain and Portugal. 
 It was stated, in the judgment of the court, that it could 
 hardly be denied that the slave-trade was contrary to the law 
 of nature. That every man had a natural light to the fruits 
 of his own labour, was generally admitted ; and that no other 
 person could rightfully deprive him of those fruits, and 
 appropriate them against his will, seemed to be the necessary 
 result of this admission. But, from the earliest times, war 
 had existed, and war conferred rights in which all had ac- 
 quiesced. Among the most enlightened nations of antiquity, 
 one of these rights was, that the victor might enslave the van- 
 quished. That which was the usage of all nations could not 
 be pronounced repugnant to the law of nations, which was 
 certainly to be tried by the test of general usage. That 
 which had received the assent of all must be the law of all. 
 
 Slavery, then, had its origin in force ; but as the world had 
 agreed that it was a legitimate result of force, the state of 
 things which was thus produced by general consent could not 
 be pronounced unlawful. 
 
 Throughout Christendom this harsh rule had been ex- 
 ploded, and war was no longer considered as giving a right to 
 enslave captives. But this triumph had not been universal. 
 
 (b) [Report of Commission on Fugitive Slaves, 1875, p. 54]. 
 
 (c) \_Boycc v. Tabb, 18 Wallace, 5*6].
 
 182 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 The parties to the modern law of nations do not propagate 
 their principles by force ; and Africa had not yet adopted 
 them. Throughout the whole extent of that immense con- 
 tinent, so far as we know its history, it is still the law of 
 nations that prisoners are slaves. The question then was 
 could those who had renounced this law he permitted to par- 
 ticipate in its effects by purchasing the human beings who 
 are its victims ? 
 
 Whatever might be the answer of a moralist to this ques- 
 tion, a jurist must search for its legal solution in those prin- 
 ciples which are sanctioned by the usages, the national acts, 
 and the general assent, of that portion of the world of which 
 he considers himself a part, and to whose law the appeal is 
 made. If we resort to this standard as the test of inter- 
 national law, the question must be considered as decided in 
 favour of the legality of the trade. Both Europe and America 
 embarked in it ; and for nearly two centuries it was carried 
 on without opposition and without censure. A jurist could 
 not say that a practice thus supported was illegal, and that 
 those engaged in it might be punished, either personally or 
 by deprivation of property. 
 
 In this commerce, thus sanctioned by universal assent, 
 every nation had an equal right to engage. No principle of 
 general law was more universally acknowledged than the 
 perfect equality of nations. Russia and Geneva have equal 
 rights. It results from this equality, that no one can right- 
 fully impose a rule on another. Each legislates for itself, 
 but its legislation can operate on itself alone. A right, then, 
 which was vested in all by the consent of all, could be 
 divested only by consent ; and this trade, in which all had 
 participated, must remain lawful to those who could not be 
 induced to relinquish it. As no nation could prescribe a rule 
 for others, no one could make a law of nations ; and this 
 traffic remained lawful to those whose governments had not 
 forbidden it. 
 
 If it was consistent with the law of nations, it could not in 
 itself be piracy. It could be made so only by statute ; and 
 the obligation of the statute could not transcend the legislative 
 power of the State which might enact it. 
 
 If the trade was neither repugnant to the law of nations,
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 183 
 
 nor piratical, it was almost superfluous to say in that court 
 that the right of bringing in for adjudication in time of peace, 
 even where the vessel belonged to a nation which had pro- 
 hibited the trade, could not exist. The courts of justice of 
 no country executed the penal laws of another ; and the 
 course of policy of the American governmeiit on the subject 
 of visitation and search, would decide any case against the 
 captors in which that right had been exercised by an American 
 cruiser, on the vessel of a foreign nation not violating the 
 municipal laws of the United States. It followed that a 
 foreign vessel engaged in the African slave-trade, captured 
 on the high seas in time of peace, by an American cruiser, 
 and brought in for adjudication, would be restored to the 
 original owners (d). 
 
 Another question of great difficulty with regard to slaves is that of 133a. 
 their position after quitting a country where they are held in bondage, ^ u ll g lve 
 and then returning to it. No one will deny that a slave is justified 
 in escaping from his master, if he can do so without having recourse to 
 violence, and no country would give him up to his owner in such a case. 
 It has, however, been asserted, that when a slave has once set foot on 
 British soil, he becomes at once and for ever a free man, and that his 
 owner's rights thereupon cease to exist. Such a position cannot be sup- 
 ported. The law of England recognizes the right of an owner in a slave- 
 owning State over his slaves, and therefore British law cannot impress 
 the quality of freedom upon a slave who has violated his master's right, 
 so as to make the slave able to continue free on his return to the owner's 
 country. In a case decided by Lord Stowell, Grace, a slave in Antigua, Case of 
 accompanied her mistress to England, and then returned with her to *' r ie s ' ave 
 Antigua. She was there seized by the waiter of the Customs, as for- 
 feited for having been imported into the island, contrary to a statute 
 prohibiting the further importation of slaves. Her owner put in a 
 claim for her, and Lord Stowell decided in his favour, on the ground 
 that while in England she was free, but that her liberty had been 
 placed " into a sort of parenthesis," and as she had returned to Antigua, 
 her owner's rights over her revived, and he was therefore entitled to 
 her (e). Lord Chief Justice Cockburn has recently expressed his ap- 
 proval of this decision (/) ; and this principle is to be found in other 
 cases (</). Mr. Justice Story has also expressed his concurrence with 
 this judgment (h), and the decisions of the American courts are to the 
 same effect (i). 
 
 (d) The Antelope, 10 Wheaton, 66. [See The Slavers, 2 Wallace, 350]. 
 
 (e) [The Slave Grace, 2 Hagg. Ad. 181]. 
 
 (/) [See Report on Fugitive Slaves, 1875, p. xlviii.]. 
 
 (g) [Forbes v. Oochrane, 2 B. & C. 448 ; Williams v. Brown, 3 Bos. & Pul. 
 69]. (h) [Life of Story, vol. i. p. 552]. 
 
 (i) [Stradcr v. Graham, 10 Howard, 52 ; Dred Scotv. Sandford, 19 Howard, 
 393].
 
 181 
 
 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 133b. 
 
 Slaves 
 escaping 
 to ships 
 of war. 
 
 British 
 Admiralty 
 instruc- 
 tions. 
 
 Opinion of 
 Sir J. 
 Stephen. 
 
 I33c. 
 
 Slavery in 
 the United 
 States. 
 
 The mode in which the question is most likely to present itself at the 
 present time, is by slaves escaping on to the ships of war of foreign 
 States. To give back a slave to his master, knowing that he will be 
 maltreated, and made to suffer for having attempted to regain his 
 liberty, is repugnant to the feelings of human nature ; and yet to pro- 
 tect him and carry him off to some country where slavery does not exist, 
 is a violation of his owner's rights. The instructions of the Admiralty 
 to the commanders of British ships of war, recommend that as a rule 
 fugitive slaves should not be received on board, but the commanders are 
 instructed that " In any case in which you have received a fugitive 
 slave into your ship, and taken him under the protection of the British 
 flag, whether within or beyond the territorial waters of any State, you 
 will not admit or entertain any demand made upon you for his sur- 
 render, on the ground of slavery. 
 
 " No rule is, or can be laid down, as to when a fugitive is to be re- 
 ceived on board or not " (k) . 
 
 Sir James Stephen has come to the conclusion, " That commanding 
 officers of British ships of war in territorial waters are under an obliga- 
 tion, imposed by international law, to deliver up fugitive slaves who 
 have taken refuge on board their ships when required to do so by the 
 local authorities, in accordance with the local law. That the law of 
 England does not forbid them to discharge this obligation. That it is 
 doubtful whether by refusing to discharge it, they might not incur a 
 personal responsibility to the owner of the slave. That the privilege of 
 exterritoriality (whatever may be its exact nature and extent), is really 
 irrelevant to the subject " (I). 
 
 While slavery existed in some of the States of the American Union, it 
 was held by the supreme court, that laws made by any of the States to 
 prevent, or even to assist, the arrest of fugitive slaves, were unconsti- 
 tutional and void (m). However, the civil war resulted in the total 
 abolition of slavery throughout the Union. The Thirteenth Amend- 
 ment to the Constitution provides that, 1. " Neither slavery nor invol- 
 untary servitude, except as a punishment for crime, whereof the party 
 shall have been duly convicted, shall exist within the United States, 
 or any place subject to their jurisdiction. 
 
 " 2. Congress shall have power to enforce this article by appropriate 
 legislation " (ri). 
 
 134. II. The judicial power of every State extends to all civil 
 
 Sjudidal P rocee ding8, in rein, relating to real or personal property 
 
 power as to within the territory. 
 
 Shfthe This follows, in respect to real property, as a necessary 
 
 territory, consequence of the rule relating to the application of the lex 
 
 (k) [Solicitor's Journal, vol. xx. p. 833. The subject is fully considered in 
 the Report of the Royal Commission ou Fugitive Slaves, 1875]. 
 
 (I) [Report on Fugitive Slaves, 1875, p. Ixi.] 
 
 (m) [Prigg v. Pennsylvania, 16 Peters, 539, 622]. 
 
 (M) [Thirteenth Amendment to the Constitution of the U. S. See Memor 
 v. HapiKrsett, 21 Wallace, 162].
 
 cases in 
 rem. 
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 185 
 
 loci rei sites. As every thing relating to the tenure, title, and 
 transfer of real property (immolilia) is regulated by the local 
 law, so also the proceedings in courts of justice relating to 
 that species of property, such as the rules of evidence and of 
 prescription, the forms of action and pleadings must neces- 
 sarily be governed by the same law (o). 
 
 A similar rule applies to all civil proceedings in rem, re- 135. 
 specting personal property (moHlia) within the territory, ^t^een 1011 
 which must also be regulated by the local law, with this the rule of 
 qualification, that foreign laws may furnish the rule of decision anc i t he 
 in cases where they apply, whilst the forms of process, and rule of P ro ' 
 rules of evidence and prescription are still governed by the affecting 
 lex fori. Thus the lex domicilii forms the law in respect to 
 a testament of personal property or succession db intcstato, if 
 the will is made, or the party on whom the succession de- 
 volves resides, in a foreign country ; whilst at the same time 
 the lex fori of the State in whose tribunals the suit is pending 
 determines the forms of process and the rules of evidence and 
 prescription. 
 
 Though the distribution of the personal effects of an intes- 136. 
 tate is to be made according to the law of the place where the ^ ^^ona! 
 deceased was domiciled, it does not therefore follow that the property ab 
 distribution is in all cases to be made by the tribunals of that 
 place to the exclusion of those of the country where the pro- 
 perty is situate. Whether the tribunal of the State where the 
 property lies is to decree distribution, or to remit the property 
 abroad, is a matter of judicial discretion to be exercised 
 according to the circumstances. It is the duty of every govern- 
 ment to protect its own citizens in the recovery of their 
 debts and other just claims ; and in the case of a solvent 
 estate it would be an unreasonable and useless comity to send 
 the funds abroad, and the resident creditor after them. 
 But if the estate be insolvent, it ought not to be sequestered 
 for the exclusive benefit of the subjects of the State where 
 it lies. In all civilized countries, foreigners, in such a 
 case, are entitled to prove their debts and share in the 
 distribution (p). 
 
 (o) yidewpra, 81. 
 imt's Comment 
 cases there cited. 
 
 (2?) Kent's Commentaries on American Law (5th ed.), vol. ii. pp. 431, 432, 
 and the ca
 
 186 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 137- Though the forms in which a testament of personal pro- 
 
 win, 1 how perty made in a foreign country is to be executed, are regulated 
 
 earned into ^y fa e local law. such a testament cannot be carried into 
 
 effect in * 
 
 another effect in the State where the property lies, until, in the 
 
 country. language of the law of England, probate has been obtained 
 
 in the proper tribunal of such State, or, in the language of 
 
 the civilians, it has been homologated, or registered, in such 
 
 tribunal (g). 
 
 So also a foreign executor, constituted such by the will of 
 the testator, cannot exercise his authority in another State 
 without taking out letters of administration in the proper 
 local court. Nor can the administrator of a succession ab in- 
 testato, appointed ex officio under the laws of a foreign State, 
 interfere with the personal property in another State belong- 
 ing to the succession, without having his authority confirmed 
 by the local tribunal. 
 
 137a. If the testator died without leaving any personal property in England, 
 
 Probate of generally speaking, his will need not be proved in any Court of Probate 
 wills in j n England (?). But if a foreign executor should find it necessary to 
 institute a suit in this country, to recover a debt due to his testator, he 
 must then prove the will here, or a personal representative must be con- 
 stituted by the Court of Probate here to administer ad litem (s). The 
 English Court of Probate generally follows the decision of the foreign 
 court, when a will proved abroad also requires probate in England. 
 The court should, however, be satisfied, either that the will was valid by 
 the law of the testator's domicile, or that a court of the foreign country 
 has acted upon it, and given it efficiency (t). 
 
 138. The judgment or sentence of a foreign tribunal of corn- 
 ness of petent jurisdiction proceeding in rem, such as the sentences 
 
 foreign O f p r i ze Courts under the law of nations, or Admiralty and 
 
 sentences . . ^ 
 
 in rem. Exchequer, or other revenue courts, under the municipal law, 
 
 are conclusive as to the proprietary interest in, and title to, 
 the thing in question, wherever the same comes incidentally 
 in controversy in another State. 
 
 (q) Armstrong v. Lear, 12 Wheaton, p. 169. Code Civil, liv. iii. tit. 2, 
 art. 1000. 
 
 (/) [Williams on Executors (7th ed.), p. 360 ; Jauncey v. Sealcy, 1 Vernon, 
 397]. 
 
 (s) [Williams on Executors, p. 361. Attorney-General v. Bowens, 4 M. & W. 
 193 ; Price v. Dev:hunts, 4 M. & Cr. 80]. 
 
 (t) [Williams on Executors, p. 362. In the goods of Des ffais, 34 L. J. 
 P. M. & A. 58. With regard to the Probate in England of Scotch and Irish 
 wills, see 21 & 22 Viet. c. 56, s. 12 : 20 & 21 Viet. c. 79, s. 95].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 187 
 
 Whatever doubts may exist as to the conclusiveness of 
 foreign sentences in respect of facts collaterally involved in the 
 judgment, the peace of the civilized world, and the general 
 security and convenience of commerce, obviously require that 
 full and complete effect should be given to such sentences, 
 wherever the title to the specific property, which has been 
 once determined in a competent tribunal, is again drawn in 
 question in any other court or country. 
 
 The English courts endeavour to uphold all decisions of foreign tri- 138 a. 
 
 bunals, when such decisions have been rightly obtained. Mr. Justice f . . 
 , , . . , L . and Ameri- 
 
 btory lays down the rule as regards foreign judgments in rem in very can ,j ec j. 
 
 explicit terms. He says the judgment is conclusive " when there have sions. 
 been proceedings in rem as to movable property within the jurisdiction 
 of the court pronouncing the judgment (u). Whatever it settles as to the 
 right or title, or whatever disposition it makes of the property by sale, 
 revendication, transfer, or other act, will be held valid in every other 
 country where the question comes directly or indirectly in judgment 
 before any other foreign tribunal. But this doctrine, however, is always 
 to be understood with this limitation, that the judgment has been 
 obtained bond fide and without fraud ; for if fraud has intervened, it will 
 doubtless avoid the force and validity of the sentence (x). So it must 
 appear that there have been regular proceedings to found the judgment 
 or decree ; and that the parties in interest in rem have had notice or an 
 opportunity to appear and defend their interests, either personally or by 
 their proper representatives, before it was pronounced ; for the common 
 justice of all nations requires that no condemnation should be pro- 
 nounced before the party has an opportunity to be heard " (y). " We 
 think the inquiry is," said Mr. Justice Blackburn, in giving an opinion 
 in the House of Lords (z), "first, whether the subject-matter was so sitxi- 
 ated as to be within the lawful control of the State, under the authority 
 of which the court sits ; and, secondly, whether the sovereign authority 
 of that State has conferred on the court jurisdiction to decide as to the 
 disposition of the thing, and the court has acted within its jurisdiction. 
 If these conditions are fulfilled, the adjudication is conclusive against all 
 the world." The judgment is binding even though it appears that the 
 foreign court based its decision on a mistaken idea of English law (a). 
 
 How far a bankruptcy declared under the laws of one 13 9- 
 country will affect the real and personal property of the bank- pr0 perty 
 rupt situate in another State, is a question of which the usage under fo ' 
 
 (u) [Rose v. Himely, 4 Cranch, 241]. 
 
 (x) [Williams v. Amroyd, 7 Cranch, 423]. 
 
 (y) [Story, Conflict of Laws, 592. Boyd, The Merchant Shipping Laws, 
 p. 459. Monroe v. Douglas, 4 Sandford, 126 ; Sawyer v. Maine Fire Ins. Co., 
 12 Massachusetts, 291]. 
 
 (z) [Castrique \. Imrie, L. K. 4 H. L. 429]. 
 
 (a) [Ibid., p. 414].
 
 188 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 reign bank- O f nations, and the opinions of civilians, furnish no satisfactory 
 cee P din^." solution. Even as between co-ordinate States, belonging to 
 the same common empire, it has been doubted how far the 
 assignment under the bankrupt laws of one country will 
 operate a transfer of property in another. In respect to real 
 property, which generally has some indelible characteristics 
 impressed upon it by the local law, these difficulties are en- 
 hanced in those cases where the lex loci rei sitte requires 
 some formal act to be done by the bankrupt, or his attorney, 
 specially constituted, in the place where the property lies, in 
 order to consummate the transfer. In those countries where 
 the theory of the English bankrupt system, that the assign- 
 ment transfers all the property of the bankrupt, wherever 
 situate, is admitted in practice, the local tribunals would 
 probably be ancillary to the execution of the assignment by 
 compelling the bankrupt, or his attorney, to execute such 
 formal acts as are required by the local laws to complete the 
 conveyance (6). 
 
 The practice of the English Court of Chancery in assuming 
 jurisdiction incidentally of questions affecting the title to 
 lands in the British colonies, in the exercise of its jurisdiction 
 in personam, where the party resides in England, and thus 
 compelling him, indirectly, to give effect to its decrees as to 
 real property situate out of its local jurisdiction, seems very 
 questionable on principle, unless where it is restrained to the 
 case of a party who has fraudulently obtained an undue 
 advantage over other creditors by judicial proceedings insti- 
 tuted without personal notice to the defendant. 
 
 But whatever effect may, in general, be attributed to the 
 assignment in bankruptcy as to property situate in another 
 State, it is evident that it cannot operate where one creditor 
 has fairly obtained by legal diligence a specific lien and right 
 of preference, under the laws of the country where the pro- 
 perty is situate (c). 
 
 . 140> III. The judicial power of every State may be extended to 
 Extent of all controversies respecting personal rights and contracts, or 
 power"* injuries to the person or property, when the party resides 
 
 (b) See Lord Eldon's observations in Sclkrigg v. Davis, Hose's Cases in 
 Bankruptcy, vol. ii. p. 311; Banfitld v. Solomon, 9 Vesey, 77. 
 
 (c) Kent's Comment, on American Law, vol. ii. pp. 405 408, 5th ed.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 189 
 
 within the territory, wherever the cause of action may have foreigners 
 originated. SSL 
 
 This general principle is entirely independent of the rule territory. 
 of decision which is to govern the tribunal. The rule of deci- 
 sion may be the law of the country where the judge is sitting, 
 or it may be the law of a foreign State in cases where it 
 applies ; but that does not affect the question of jurisdiction, 
 which depends, or may be made to depend, exclusively upon 
 the residence of the party. 
 
 The operation of the general rule of international law, as Depends 
 to civil jurisdiction, extending to all persons who owe even a "?^j j"^~ 
 temporary allegiance to the State, may be limited by the posi- lations. 
 tive institutions of any particular country. It is the duty, 
 as well as the right, of every nation to administer justice to 
 its own citizens ; but there is no uniform and constant practice 
 of nations, as to taking cognizance of controversies between 
 foreigners. It may be assumed or declined, at the discretion 
 of each State, guided by such motives as may influence its 
 juridical policy. All real and possessory actions may be 
 brought, and indeed must be brought, in the place where the 
 property lies ; but the law of England, and of other countries Law of 
 where the English common law forms the basis of the local and Am- 
 jurisprudence, considers all personal actions, whether arising rica - 
 ex delicto or ex contractu, as transitory; and permits them 
 to be brought in the domestic forum, whoever may be the 
 parties, and wherever the cause of action may originate. This 
 rule is supported by a legal fiction, which supposes the injury 
 to have been inflicted, or the contract to have been made, 
 within the local jurisdiction. In the countries which have 
 modelled their municipal jurisprudence upon the Roman civil 
 law, the maxim of that code, actor sequitur forum rei, is 
 generally followed, and personal actions must therefore be 
 brought in the tribunals of the place where the defendant has 
 acquired a fixed domicile. 
 
 By the law of France, foreigners who have established their 141. 
 domicile in the country by special license (autorisation) of the ]^ ncl1 
 king, are entitled to all civil rights, and, among others, to 
 that of suing in the local tribunals as French subjects. 
 Under other circumstances, these tribunals have jurisdiction 
 where foreigners are parties in the following cases only :
 
 190 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 1. Where the contract is made in France, or elsewhere, 
 between foreigners and French subjects. 
 
 2. In commercial matters, on all contracts made in France, 
 with whomsoever made, where the parties have elected a 
 domicile, in which they are liable to be sued, either by the 
 express terms of the contract, or by necessary implication 
 resulting from its nature. 
 
 3. Where foreigners voluntarily submit their controversies 
 to the decision of the French tribunals, by waving a plea to 
 the jurisdiction. 
 
 In all other cases, where foreigners not domiciled in France 
 by special license of the king are concerned, the French tri- 
 bunals decline jurisdiction, even when the contract is made in 
 France (d). 
 
 A late excellent writer on private international law considers 
 this jurisprudence, which deprives a foreigner, not domiciled 
 in France, of the faculty of bringing a suit in the French tri- 
 bunals against another foreigner, as inconsistent with the 
 European law of nations. The Koman law had recognized 
 the principle, that all contracts the most usual among men 
 arise from the law of nations, ex jure gentium ; in other 
 words, these contracts are valid, whether made between 
 foreigners, or between foreigners and citizens, or between 
 citizens of the same State. This principle has been incor- 
 porated into the modern law of nations, which recognizes the 
 right of foreigners to contract within the territorial limits of 
 another State. This right necessarily draws after it the 
 authority of the local tribunals to enforce the contracts 
 thus made, whether the suit is brought by foreigners or by 
 citizens (e). 
 
 142. The practice which prevails in some countries, of proceed- 
 
 h^against m g a g amst absent parties, who are not only foreigners, but 
 
 absent have not acquired a domicile within the territory, by means of 
 
 some formal public notice, like that of the viis et modis of the 
 
 Roman civil law, without actual personal notice of the suit, 
 
 cannot be reconciled with the principles of international jus- 
 
 (d) Code Civil, art. 13, 14, 15. Code de Commerce, art. 631. Discussions 
 sur le Code Civil, torn. i. p. 48. Pothier, Procedure Civile, partie i. ch. 1, 
 p. 2. Valin, sur FOrd. de la Marine, torn. i. pp. 113, 253, 254. Pardessus 
 Droit Commercial, Pt. VI. tit. 7, ch. 1, 1. 
 
 (e) Fcelix, Droit International Prive, 122, 123.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 tice. So far, indeed, as it merely affects the specific property 
 of the absent debtor within the territory, attaching it for the 
 benefit of a particular creditor, who is thus permitted to gain 
 a preference by superior diligence, or for the general benefit of 
 all the creditors who come in within a certain fixed period, 
 and claim the benefit of a rateable distribution, such a prac- 
 tice may be tolerated ; and in the administration of inter- 
 national bankrupt law it is frequently allowed to give a pre- 
 ference to the attaching creditor, against the law of what is 
 termed the locus concursiis creditorum, which is the place of 
 the debtor's domicile (/). 
 
 Where the tribunal has jurisdiction, the rule of decision is .. 143 - 
 the law applicable to the case, whether it be the municipal or between 
 a foreign code : but the rule of proceeding is generally deter- the rule of 
 
 decision 
 
 mined by the lex forl of the place where the suit is pending. an d rule of 
 
 But it is not always easy to distinguish the rule of decision 
 from the rule of proceeding. It may, however, be stated in contract. 
 general, that whatever belongs to the obligation of the con- 
 tract is regulated by the lex domicilii, or the lex loci con- 
 tractus, and whatever belongs to the remedy for enforcing the 
 contract is regulated by the lexfori. 
 
 If the tribunal is called upon to apply to the case the law of 
 the country where it sits, as between persons domiciled in 
 that country, no difficulty can possibly arise. As the obligation 
 of the contract and the remedy to enforce it are both derived 
 from the municipal law, the rule of decision and the rule of 
 proceeding must be sought in the same code. In other cases 
 it is necessary to distinguish with accuracy between the obli- 
 gation and the remedy. 
 
 The obligation of the contract, then, may be said to consist 
 of the following parts : 
 
 1. The personal capacity of the parties to contract. 
 
 2. The will of the parties expressed, as to the terms and 
 conditions of the contract. 
 
 3. The external form of the contract. 
 
 The personal capacity of parties to contract depends upon 
 those personal qualities which are annexed to their civil con- 
 dition, by the municipal law of their own State, and which 
 travel with them wherever they go, and attach to them in 
 
 (/) [Schibsly v. Westcnholz, L. R. 6 Q. B. 155].
 
 192 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 whatever foreign country they are temporarily resident. Such 
 are the privileges and disabilities conferred by the lex domicilii 
 in respect to majority and minority, marriage and divorce, 
 sanity or lunacy, and which determine the capacity or in- 
 capacity of parties to contract, independently of the law of the 
 place where the contract is made, or that of the place where 
 it is sought to be enforced. 
 
 It is only those universal personal qualities, which the laws 
 of all civilized nations concur in considering as essentially 
 affecting the capacity to contract, which are exclusively regu- 
 lated by the lex domicilii, and not those particular prohibi- 
 tions or disabilities, which are arbitrary in their nature and 
 founded upon local policy; such as the prohibition in some 
 countries, of noblemen and ecclesiastics from engaging in 
 trade and forming commercial contracts. The qualities of a 
 major or minor, of a married or single woman, &c., are 
 universal personal qualities, which, with all the incidents 
 belonging to them, are ascertained by the lex domicilii, but 
 which are also everywhere recognized as forming essential 
 ingredients in the capacity to contract (#). 
 
 144. How far bankruptcy ought to be considered as a privilege 
 
 ru"^" or Disability of this nature, and thus be restricted in its opera- 
 tion to the territory of that State under whose bankrupt code 
 the proceedings take place, is, as already stated, a question of 
 difficulty in respect to which no constant and uniform usage 
 prevails among nations. Supposing the bankrupt code of any 
 country to form a part of the obligation of every contract 
 made in that country with its citizens, and that every such 
 contract is subject to the implied condition, that the debtor 
 may be discharged from his obligation in the manner pre- 
 scribed by the bankrupt laws, it would seem, on principle, 
 that a certificate of discharge ought to be effectual in the tri- 
 bunals of any other State where the creditor may bring his 
 suit. If, on the other hand, the bankrupt code merely forms 
 a part of the remedy for a breach of the contract, it belongs to 
 the lexfori, which cannot operate extra-territorially within the 
 jurisdiction of any other State having the exclusive right of 
 regulating the proceedings in its own courts of justice ; still 
 less can it have such an operation where it is a mere partial 
 (g) Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, 1.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 193 
 
 modification of the remedy, such as an exemption from arrest, 
 and imprisonment of the debtor's person on a cessio bonorum. 
 Such an exemption being strictly local in its nature, and to 
 be administered, in all its details, by the tribunals of the State 
 creating it, cannot form a law for those of any foreign State. 
 But if the exemption from arrest and imprisonment, instead 
 of being merely contingent upon the failure of the debtor, to 
 perform his obligation through insolvency, enters into and 
 forms an essential ingredient in the original contract itself, 
 by the law of the country where it is made, it cannot be en- 
 forced in any other State by the prohibited means. Thus by 
 the law of France, and other countries where the contrainte 
 par corps is limited to commercial debts, an ordinary debt 
 contracted in that country by its subjects cannot be enforced 
 by means of personal arrest in any other State, although the 
 lex fori may authorise imprisonment for every description of 
 debts (7i). 
 
 There is no doubt of the general rule that when an action is brought 144 a. 
 in one country for acts which have taken place in another, the rights Remedy 
 and merits of the case are to be decided by the law of the place where c^^tted 
 the acts occurred. There is, however, a limitation to the rule when the j n a foreign 
 case is one, not of contract, but of tort. The civil liability arising out of country. 
 a wrong derives its birth from the law of the place where the wrong was 
 committed, and its character is determined by that law ; but in order 
 that a wrong committed abroad should give a remedy in England, it is 
 essential that the wrong should be of such a character that it would give 
 a cause of action if committed in England (). Thus a collision occurred 
 in the Scheldt between a British ship and a Norwegian barque, in which 
 the latter was damaged by the fault of the British ship. By the law of 
 Belgium, the British ship was compelled to take a pilot on board while 
 navigating the Scheldt, but, though the pilotage was compulsory, the law 
 of Belgium did not free the master from responsibility while the ship 
 was in the pilot's charge. By the law of England, a master is not respon- 
 sible for damage occasioned by the fault or incapacity of a qualified pilot, 
 when the employment of such a pilot is compulsory by law (&). It being 
 proved that the collision occurred through the fault of the pilot on board 
 the British ship, the Privy Council refused to hold the owner liable in 
 England, although he might be so in Belgium (I). 
 
 (h) Mf.lan v. The Duke of Filz- James, 1 B. & P. 131. 
 
 (t) [The ff alley, L. R. 2 P. C. 193; Phillips v. Eyre, L. R. 6 Q. B. 28 ; 
 The M. Moxham, 1 P. D. 111]. 
 
 (k) [17 & 18 Viet. c. 104, s. 388. See Boyd, The Merchant Shipping Laws, 
 p. 345]. 
 
 (1) [The, Halky, L. R. 2 P. C. 193. See also Smith v. Condry, 1 Howard, 
 28, where similar principles were applied in America]. 
 
 o
 
 194 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 145 - The obligation of the contract consists of the will of the 
 
 Obligation n .. , , ... 
 
 of a con- parties, expressed as to its terms and conditions. 
 
 tract. rj^Q interpretation of these depends, of course, upon the lex 
 
 loci contractus, as do also the nature and extent of those im- 
 plied conditions which are annexed to the contract by the local 
 law or usage. Thus the rate of interest, unless fixed by the 
 parties, is allowed by the law as damages for the detention of 
 the debt, and the proceedings to recover these damages may 
 strictly be considered as a part of the remedy. The rate of 
 interest is, however, regulated by the law of the place where 
 the contract is made, unless, indeed, it appears that the 
 parties had in view the law of some other country. In that 
 case, the lawful rate of interest of the place of payment, or to 
 which the loan has reference, by security being taken upon 
 property there situate, will control the lex loci contractus (m\ 
 146. The external form of the contract constitutes an essential 
 
 contract & P ar ^ ^ ^ s obligation. 
 
 This must be regulated by the law of the place of contract, 
 which determines whether it must be in writing, or under 
 seal, or executed with certain formalities before a notary, or 
 other public officer, and how attested. A want of compliance 
 with these requisites renders the contract void ab initio, and 
 being void by the law of the place, it cannot be carried into 
 effect in any other State. But a mere fiscal regulation does 
 not operate extra- territorially ; and therefore the want of a 
 stamp, required by the local law to be impressed on an instru- 
 ment, cannot be objected where it is sought to be enforced in 
 the tribunals of another country. 
 
 There is an essential difference between the form of the 
 contract and the extrinsic evidence by which the contract is to 
 be proved. Thus the lex loci contractus may require certain 
 contracts to be in writing, and attested in a particular manner, 
 and a want of compliance with these forms will render them 
 entirely void. But if these forms are actually complied with, 
 the extrinsic evidence by which the existence and terms of the 
 contract are to be proved in a foreign tribunal, is regulated by 
 the lex fori. 
 c 147 The most eminent public jurists concur in asserting the 
 
 Conclusive- 
 
 (m) Kent's Comm. on American Law, vol. ii. p. 459, 5th edit. Fcelix, 
 Droit International Prive, 85.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 195 
 
 principle, that a final judgment, rendered in a personal action, ness of 
 in the courts of competent jurisdiction of one State, ought to judgments 
 have the conclusive effect of a res adi udicata in every other in P ersoliaJ 
 
 actions. 
 
 State, wherever it is pleaded in bar of another action for the 
 same cause (n). 
 
 But no sovereign is bound, unless by special compact, to 
 execute within his dominions a judgment rendered by the 
 tribunals of another State ; and if execution be sought by 
 suit upon the judgment, or otherwise, the tribunal in which 
 the suit is brought, or from which execution is sought, is, on 
 principle, at liberty to examine into the merits of such judg- 
 ment, and to give effect to it or not, as may be found just and 
 equitable (o). The general comity, utility, and convenience 
 of nations have, however, established a usage among most 
 civilized States, by which the final judgments of foreign courts 
 of competent jurisdiction are reciprocally carried into execu- 
 tion, under certain regulations and restrictions, which differ 
 in different countries (p). 
 
 By the law of England, the judgment of a foreign tribunal, 148. 
 of competent jurisdiction, is conclusive where the same matter jjjf 1 ^ 
 comes incidentally in controversy between the same parties ; foreign 
 and full effect is given to the exceptio reijudicata, where it is JU ! 
 pleaded in bar of a new suit for the same cause of action. A 
 foreign judgment is primd facie evidence, where the party 
 claiming the benefit of it applies to the English courts to 
 enforce it, and it lies on the defendant to impeach the justice 
 of it, or to show that it was irregularly obtained. If this is 
 not shown, it is received as evidence of a debt, for which a 
 new judgment is rendered in the English court, and execution 
 awarded. But if it appears by the record of the proceedings, 
 on which the original judgment was founded, that it was 
 unjustly or fraudulently obtained, without actual personal 
 notice to the party affected by it ; or if it is clearly and 
 unequivocally shown, by extrinsic evidence, that the judg- 
 ment has manifestly proceeded upon false premises or in- 
 adequate reasons, or upon a palpable mistake of local or 
 
 (?i) Vattel, liv. ii. ch. vii. 84, 85. Martens, Droit des Gens, 93, 94, 
 95. KlUber, Droit des Gens, 59. Deutsche Bundes Recht, 366. 
 (o) Kent's Conim., vol. ii. p. 119, 5th edit. 
 (p) Foelix, 292311. 
 
 o 2
 
 196 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 foreign law ; it will not be enforced by the English tri- 
 bunals (q). 
 149. The same jurisprudence prevails in the United States of 
 
 i aw . America, in respect to judgments and decrees rendered by the 
 
 tribunals of a State foreign to the Union. As between the 
 different States of the Union itself, a judgment obtained in 
 one State has the same credit and effect in all the other 
 States, which it has by the laws of that State where it was 
 obtained ; that is, it has the conclusive effect of a domestic 
 judgment (r). 
 150. The law of France restrains the operation of foreign judg- 
 
 FraLce. ments within narrower limits. Judgments obtained in a 
 foreign country against French subjects are not conclusive, 
 either where the same matter comes again incidentally in con- 
 troversy, or where a direct suit is brought to enforce the judg- 
 ment in the French tribunals. And this want of comity is 
 even carried so far, that, where a French subject commences 
 a suit in a foreign tribunal, and judgment is rendered against 
 him, the exception of Us finita is not admitted as a bar to a 
 new action by the same party, in the tribunals of his own 
 country. If the judgment in question has been obtained 
 against a foreigner, subject to the jurisdiction of the tribunal 
 where it was pronounced, it is conclusive in bar of a new 
 action in the French tribunals, between the same parties. But 
 the party who seeks to enforce it must bring a new suit upon 
 it, in which the judgment is primd facie evidence only ; the 
 defendant being permitted to contest the merits, and to show 
 not only that it was irregularly obtained, but that it is unjust 
 and illegal (s). 
 
 The execution of foreign judgments in personam is recipro- 
 cally allowed, by the law and usage of the different States of 
 the Germanic Confederation, and of the European continent 
 in general, except Spain, Portugal, Russia, Sweden, Norway, 
 
 (q) Frankland v. McGusty, 1 Knapp, P. C. 274 ; Novelli v. Rossi, 2 Barn. 
 & Adol. 757; Becquet v. M'Carthy, 3 ib. 951. [Godard v. Gray, L. K. 6 
 Q. B. 139; Ochscnbcin v. Papelier, L. K. 8 Oh. Ap. 695; Messina v. Petro- 
 cocchino, L. R. 4 P. C. 144.] 
 
 (r) Mills v. Uuryee, 7 Cranch, pp. 481484; Hampton v. M'Connel, 
 3 Wheaton, 234. 
 
 (s) Code Civil, art. 2123, 2128. Code de Procedure Civil, art. 546. Par- 
 dessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, 2, No. 1488. Merlin, Re- 
 peitoire, torn. vi. tit. Jugcment. Questions dc Droit, torn. iii. tit. Jugctiicnt. 
 Toullier, Droit Civil Frangais, torn. x. Nos. 7686.
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 197 
 
 France, and the countries whose legislation is based on the 
 French civil code (f). 
 
 A decree of divorce obtained in a foreign country, by a frau- * 51 - 
 dulent evasion of the laws of the State to which the parties divorces, 
 belong, would seem, on principle, to be clearly void in the 
 country of their domicile, where the marriage took place, 
 though valid under the laws of the country where the divorce 
 was obtained. Such are divorces obtained by parties going 
 into another country for the sole purpose of obtaining a dis- 
 solution of the nuptial contract, for causes not allowed by 
 the laws of their own country, or where those laws do not 
 permit a divorce a rinculo for any cause whatever. This 
 subject has been thrown into almost inextricable confusion, 
 by the contrariety of decisions between the tribunals of 
 England and Scotland ; the courts of the former refusing to 
 recognise divorces a vinculo pronounced by the Scottish tri- 
 bunals, between English subjects who had not acquired a bond 
 fide permanent domicile in Scotland ; whilst the Scottish courts 
 persist in granting such divorces in cases where, by the law of 
 England, Ireland, and the colonies connected with the United 
 Kingdom, the authority of parliament alone is competent to 
 dissolve the marriage, so as to enable either party, during the 
 lifetime of the other, again to contract lawful wedlock (u). 
 
 In the most recent English decision on this subject, the 
 House of Lords, sitting as a Court of Appeals in a case 
 coming from Scotland, and considering itself bound to ad- 
 minister the law of Scotland, determined that the Scottish 
 courts had, by the law of that country, a rightful jurisdiction 
 to decree a divorce between parties actually domiciled in Scot- 
 land, notwithstanding the marriage was contracted in England. 
 But the Court did not decide what effect such a divorce would 
 have, if brought directly in question in an English court of 
 justice (x). 
 
 In the United States, the rule appears to be conclusively 
 settled that the lex loci of the State in which the parties are 
 bond fide domiciled, gives jurisdiction to the local courts to 
 
 (t) Fcelix, Droit International Prive, 293311. 
 
 (u) Dow's Parliament. Cases, vol. i. p. 117; Torcy v. Lindsay, p. 124. 
 Lolly's case, 2 Clark & Fin. 567. See Fergusson's Reports of Decisions in the 
 Consistorial Courts of Scotland, passim. 
 
 (a-) War-render v. Warrcndcr, 9 Bligh, 89 ; S. C. 2 Clark & Fin. 488.
 
 198 
 
 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 decree a divorce, for any cause recognised as sufficient by the 
 local law, without regard to the law of that State where the 
 marriage was originally contracted (y). This, of course, ex- 
 cludes such divorces as are obtained in fraudulent evasion of 
 the laws of one State, by parties removing into another for 
 the sole purpose of procuring a divorce (2). 
 
 15la. 
 
 Validity of 
 a foreign 
 divorce in 
 England. 
 
 151 b. 
 Domicile 
 
 When two persons have been married in England and are afterwards 
 divorced abroad, the validity of this divorce in England will depend 
 upon three considerations. (1) The divorce must have been pronounced 
 upon grounds which would be sufficient to enable an English court to 
 divorce the parties. (2) The parties must be domiciled in the country 
 whose courts decree their divorce. (3) The divorce must not have been 
 obtained by collusion or by a fraudulent evasion of British law. If these 
 conditions are not complied with, the divorce will not be recognised in 
 England. The first condition was expressly laid down in Lolley' s case (a). 
 Lolley was married in England. He afterwards took his wife to Scot- 
 land in order to institute a suit for divorce there, and with a view to 
 this suit Lolley committed adultery in Scotland. He was throughout a 
 domiciled Englishman. The Scotch court decreed a divorce, and Lolley 
 then married again in England, and was indicted for bigamy. He pleaded 
 his Scotch divorce, but this was held to be of no effect in England. The 
 twelve judges were " unanimously of opinion that no sentence or act 
 of any foreign country or State could dissolve an English marriage d, 
 vinculo, for ground on which it was not liable to be dissolved d vinculo 
 in England." Lolley was accordingly convicted and sent to the hulks (&) 
 It seems to be now a settled rule of English law, that a divorce decreed 
 abroad of persons who married in England, and were domiciled British 
 eubjects at the time of their marriage, will not be recognised in England, 
 if at the time of their divorce the parties were not domiciled in the 
 country decreeing the divorce (c). The same rule appears to hold good 
 in the United States (d). Whether, if so domiciled, the English courts 
 would recognise and act upon such a divorce appears to be a question 
 not wholly free from doubt ; but the better opinion seems to be that 
 they would do so if the divorce be for a ground of divorce recognised as 
 such in this country, and the foreign country be not resorted to for the 
 collusive purpose of calling in the aid of its tribunals (e). 
 
 Doubts have been sometimes expressed as to whether a domicile for all 
 
 (y) Dorsey v. Dorsey, Chandler's Law Reporter, vol. i. p. '287. 
 (z) Kent's Comm. vol. ii. p. 107, 5th edit. 
 () [Russ. & Ry. 237]. 
 (6) [2 Cl. & F. 569]. 
 
 (c) [Conway v. Beazley, 3 Hagg. Ecc. 639 ; Dolphin v. Robins, 7 H. of L. 
 Cas. 391; Pitt v. Pitt, 4 Macqueen, Scotch Ap. 627]. 
 
 (d) [Kerr v. Kerr, 41 New York, 272 ; Phelps v. Baker, 60 Barbour, ] 07. 
 Field, Int. Code (2nd edit.), ch. 1. p. 448. Bishop on Marriage (5th edit.), 
 vol. ii. 144]. 
 
 (e) [Shaw v. Att.-General, L. R. 2 P. & D. 161. See Maguire v. Maguire, 
 7 Dana (Kentucky), 185].
 
 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 199 
 
 purposes is necessary to give a foreign Court such jurisdiction as will necessary 
 ensure the recognition of the divorce in England. Lord Colonsay said *8 lv , e 
 in a case before the House of Lords in 1868, " It was said that a foreign {"J^,!, " 
 Court has no jurisdiction in the matter of divorce, unless the parties are divorce, 
 domiciled in the country ; but what is meant by ' domicile ? ' I observe 
 that it is designated sometimes as a bond fide domicile, sometimes as a 
 real domicile, sometimes as a complete domicile, sometimes as a domicile 
 for all purposes. But I must, with deference, hesitate to hold that on 
 general principles of jurisprudence, or rules of international law, the 
 jurisdiction to redress matrimonial wrongs, including the granting of a 
 decree of divorce ct vinculo, depends on there being a domicile such as 
 seems to be implied in some of these expressions. Jurisdiction to 
 redress wrongs in regard to domestic relations does not necessarily 
 depend on domicile for all purposes." His lordship observed that if the 
 divorce was obtained in fraudem legis, it would not be given effect to in 
 England. " But if you put the case of parties resorting to Scotland with 
 no such view, and being resident there for a considerable time, though 
 not so as to change the domicile for all purposes, and then suppose that 
 the wife commits adultery in Scotland, and that the husband discovers 
 it, and immediately raises an action of divorce in the Court in Scotland, 
 where the witnesses reside, and where his own duties detain him, and 
 that he proves his case and obtains a decree, which decree is unquestion- 
 ably good in Scotland, and would, I believe, be recognized in most other 
 countries, I am slow to think that it would be ignored in England, be- 
 cause it had not been pronounced by the Court of Divorce here " (/). 
 The other law lords do not appear to have shared in this opinion. It was, 
 however, not necessary to decide the point, because in the case before the 
 Court the domicile of the parties was English ; the husband had com- 
 mitted adultery in England, and both parties had then gone to Scotland, 
 and remained forty days there, simply to give the Scotch Court jurisdic- 
 tion. The divorce was therefore an evasion of English law. " The 
 result is," said Lord Westbury, " that a sentence of divorce under such 
 circumstances may be binding in Scotland, although of no validity in 
 
 the territory of England But this disgraceful anomaly can 
 
 only be removed by the Legislature " (</). 
 
 An interesting case regarding the effect to be attributed to the second 151 c. 
 marriage of a woman in Germany, who had been previously married in Case " '^ e 
 France, where divorce is not permitted, occurred in 1875. The Princesse jj'^^^ 8 
 de Bauffremont was married in France to a Frenchman, and in August, 
 
 1874, obtained a separation de corps from the French Courts. In May, 
 
 1875, she was naturalized at Saxe-Altenbourg, and became a subject of 
 the German Empire. She then domiciled herself near Dresden, and in 
 October, 1875, married the Prince Bibesco, at Berlin, according to the 
 laws of Germany. The opinion of M. de Holtzendorff, a professor at 
 Munich, was asked as to the effect of this second marriage, and he fully 
 considers the subject in his reply (h). By the law of Germany, naturali- 
 
 (/) [Shaw v. Gould, L. R. 3 H. L. 96. See also Brodie v. Brodie, 2 S\v. 
 & Tr. 259]. 
 
 (g) [Ibid., p. 88]. 
 
 (h) [See lievue de Droit International, 1876, p. 205].
 
 200 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 
 
 zation will not be conferred unless the applicant is capable of contracting 
 by the law of his own country (i). This refers to a general incapacity to 
 contract, and the incapacity of a French subject to marry after a separa- 
 tion de corps, is a special incapacity, and one not contemplated in the 
 German law. Hence the naturalization of the Princess was valid in 
 Germany. The French code (k) provides without any limitation, that 
 the quality of French subject is lost by naturalization abroad, and by the 
 common law of Germany a separation de corps is looked upon as equiva- 
 lent to a divorce (I). Thus M. de Holtzendorff argued that the Princess, 
 having rightfully ceased to be a French, and having become a Ger- 
 man subject, also acquired the right of marrying again, and that the 
 marriage was certainly valid in Germany. Whether the marriage would 
 be recognised in France appears to be an open question, but there is 
 some authority for supposing that it would (m). 
 
 (t) [Law of 1st June, 1870]. 
 
 (i) [Code Civil, art. 17]. 
 
 (I) [Sclmlte, Handbuch des Katholishchen Elierechts (ed. 1855), p. 596], 
 
 (m) [Merlin, Questions de Droit, Divorce, 11, p. 350. Story, 214J.
 
 CHAPTER HA. 
 
 NATIONAL CHARACTER AND DOMICILE. 
 
 QUESTIONS relating to national character and domicile, are of such im- 151 A. 
 pcrtance in private international law, and have so frequently arisen since Distinc- 
 Mr. Wheaton published the last additions to his text, that some account ^ ons ^ e " 
 of the present state of the law on these points seems necessary. The ques- tiomil "j^ 
 tion of domicile as it affects the property of merchants during war is racter, 
 considered in a subsequent part of this work (a). It has beeu distin- domicile, 
 guished from domicile jure gentium during peace (6). 
 
 It is necessary at the outset to distinguish clearly what is meant by 
 the terms national character and domicile. The distinction was explained 
 by Lord Westbury in the House of Lords as follows: "The law of 
 England, and of almost all civilized countries, ascribes to each individual 
 at his birth two distinct legal states or conditions ; one, by virtue of 
 which he becomes the subject of some particular country, binding him 
 by the tie of natural allegiance, and which may be called his political 
 status ; another, by virtue of which he has ascribed to him the character 
 of a citizen of some particular country, and as such is possessed of certain 
 municipal rights, and subject to certain obligations, which latter 
 character is the civil status or condition of the individual, and may be 
 quite different from his political status. The political status may depend 
 on different laws in different countries ; whereas the civil status is 
 governed universally by one single principle, namely, that of domicile, 
 which is the criterion established by law for the purpose of determining 
 civil status. For it is on this basis that the personal rights of the party, 
 that is to say, the law which determines his majority or minority, his 
 marriage succession, testacy or intestacy must depend " (c). The political 
 status of the individual is called his national character, his civil status is 
 referred to by the term domicile. Domicile and residence are two dis- 
 tinct things. Residence is a matter of fact, although it is difficult to 
 define what amounts to it (d), but domicile is an idea of law. It is a 
 relation which the law creates between an individual and a particular 
 country in which the individual is said to have his domicile (e). National 
 character is also an idea of law, but it is quite distinct from domicile. 
 
 (a) [See post, 318 to 339]. 
 
 (b) [Per Dr. Lushington in Hodgson v. De Bcauchesnc, 12 Moo. P. C. 
 13]. 
 
 (c) \Udny v. Udny, L. R. 1 Sc. & Div. 457]. 
 
 (d) {King v. Foxwell, 3 Ch. D. 520]. 
 
 (c) [Bell'v. Kennedy, L. R. 1 Sc. & Div. 307].
 
 202 
 
 NATIONAL CHARACTER AND DOMICILE. 
 
 151B. 
 Definitions 
 of domicile. 
 
 151 C. 
 
 Domicile 
 of origin 
 and of 
 choice. 
 
 A person may be invested with the national character, of one country, 
 and be domiciled in another (/). Allegiance is a term synonymous 
 with national character. By it is understood the obligations of fidelity 
 and obedience, which an individual owes to the State whose national 
 character he bears (</). 
 
 It is remarkable no definition of domicile has as yet been universally 
 accepted (h). It has been said to be " A residence at a particular place ac- 
 companied with positive or presumptive proof of an intention to remain 
 there for an unlimited tirne"(t). This explains what constitutes a domicile, 
 perhaps better than it can otherwise be expressed, but it is not strictly 
 a definition. The actual fact of residence makes it probable the party 
 is domiciled there, but on the other hand a person may be domiciled in 
 a country he seldom visits. In its ordinary acceptation a person's domi- 
 cile means the country where he lives and has his home (k), and if he 
 has been married and has not been separated from his wife, the country 
 of his domicile will probably be the one where his wife lives that is 
 where his chief establishment for the purposes of habitation is. But the 
 presumption thus created may be repelled by evidence that it was not 
 the person's intention to remain there for an indefinite time (I). Two 
 ingredients are essential to domicile. There must be the fact that an 
 abode which can in some shape or other be considered a home exists in 
 the country, and there must be the intention that this abode shall not 
 cease to be the home within any definite period. The domicile of a 
 wile is that of her husband (m), but if the husband and wife live apart, 
 without being judicially separated, it seems that the wife may acquire a 
 separate domicile from that of the husband (ri). 
 
 It is a settled principle that no man shall be without a domicile, and 
 to secure this result the law attributes to every individual as soon as he 
 is born the domicile of his father, if the child be legitimate, and the 
 domicile of the mother if illegitimate. This has been called the domi- 
 cile of origin, and is involuntary. Other domiciles, including domicile 
 by operation of law, as on marriage, are domiciles of choice. For as 
 soon as an individual is sui juris, it is competent to him to elect and 
 assume another domicile, the continuance of which depends upon his 
 act and will. When another domicile is put on, the domicile of origin 
 is for that purpose relinquished, and remains in abeyance during the 
 continuance of the domicile of choice ; but as the domicile of origin is 
 the creature of law, and independent of the will of the party, it would 
 be inconsistent with the principles on which it is by law created and 
 ascribed, to suppose that it is capable of being by the act of the party 
 
 (/) [Per Lord Chancellor Hatherley in Udny v. Udny, L. R. 1 Sc. & Div. 
 452. Field, Int. Code (2nd ed.), p. 128]. 
 
 (g) [Field, Int. Code, 261]. 
 
 (h) [Maltass v. Maltass, 1 Robertson, 74]. 
 
 (i) [C/uyer v. Daniel, 1 Binney, 349, note ; Mitchell v. U. S. 21 Wallace, 
 852]. 
 
 (k) [Story, Conflict of Laws, 41], 
 
 (1) [Forbes v. Forbes, Kay, 364; Aitchison v. Dixon, L. R. 10 Eq. 589]. 
 
 (m) [Story, 46]. 
 
 (n) [Le Sueur v. Le Sueur, 1 P. D. 139].
 
 NATIONAL CHARACTER AND DOMICILE. 203 
 
 entirely obliterated and extinguished. It revives and exists whenever 
 there is no other domicile, and it does not require to be regained or 
 re-constituted animo et facto, in the manner which is necessary for the 
 acquisition of a domicile of choice. 
 
 Domicile of choice is a conclusion or inference which the law derives ^ ** 
 from the fact of a man fixing voluntarily his sole or chief residence in a ^"Jg' e 
 particular place, with an intention of continuing to reside there for an 
 unlimited time. This is a description of the circumstances which create 
 or constitute a domicile, not a definition of the term. There must be 
 a residence freely chosen and not prescribed or dictated by any external 
 necessity, such as the duties of office, the demands of creditors, or the 
 relief from illness ; and it must be residence fixed, not for a limited 
 period or particular purpose, but general and indefinite in its future 
 contemplation. It is true that residence originally temporary, or in- 
 tended for a limited period, may afterwards become general and unli- 
 mited, and in such a case, so soon as the change of purpose, or animus 
 mancndi can be inferred, the fact of domicile is established. 
 
 The domicile of origin may be extinguished by act of law, as, for 
 example, by sentence of death or exile for life, which puts an end to 
 the statis clvilis of the criminal ; but it cannot be destroyed by the will 
 or act of the party. 
 
 Domicile of choice, as it is gained animo et facto, so it may be put an 
 end to in the same manner. When put an end to, the domicile of origin 
 revives and continues until the individual acquires another domicile of 
 choice. Suppose a natural born Englishman to settle in Holland and 
 acquire a Dutch domicile. After a time he quits Holland and travels 
 in France or Italy without settling anywhere. As soon as he quits 
 Holland, his English domicile of origin revives, and continues till he 
 acquires another domicile of choice (o). 
 
 What is a man's domicile is a question of fact ; the consequences of 151 E. 
 being invested with it, when ascertained, are a question of law. The Change of 
 intention of a person to acquire a domicile of choice must be collected domiclle - 
 from various indicia incapable of precise definition (p). When a domi- 
 cile has been acquired it is presumed to continue until it is shown to be 
 renounced, and when a change is alleged, the burden of proof rests upon 
 the party making the allegation (q). Mere length of residence in a 
 foreign country will not of itself confer a new domicile, but it raises a 
 presumption that it was the intention of the party to acquire such 
 domicile (r). This presumption may be rebutted by evidence showing 
 that there was not such an intention. It may also be presumed that a 
 person is less likely to relinquish a domicile of origin than a domicile 
 of choice ; greater proof of intention is required in the former than in 
 the latter case (s). This is so especially when the party is connected 
 
 (o) [See judgment of Lord Westbury m Udny v. Udny, L. R. 1 Sc. & Div. 
 4579]. 
 
 (p) [Forbes v. Forbes, Kay, 353]. 
 
 (q) [Desman v. U. S., 3 Otto, 605; Crockenden v. Fuller, 1 Sw. & Tr. 442; 
 Mitchell v. U. S., 21 Wallace, 350]. 
 
 (r) [Brunei v. Brunei, L. R. 12 Eq. 300]. 
 
 (.9) [Bdl v. Kennedy, L. R. 1 Sc. & Div. 307; Shaw v. Shaw, 98 Massa-
 
 204 
 
 NATIONAL CHARACTER AND DOMICILE. 
 
 151F. 
 
 Intention 
 to change 
 domicile. 
 
 151 GK" 
 
 Aquisition 
 of domicile 
 and na- 
 tional cha- 
 racter. 
 
 151 H. 
 
 Incidents of 
 
 national 
 
 character. 
 
 with the country of his domicile of origin by some specific ties, such as 
 being a peer of the realm, or serving in some public capacity such as the 
 army or civil service (t). 
 
 To change his domicile of origin a person must choose a new domicile 
 the word " choose " indicates that the act is voluntary on his part 
 he must choose a new domicile by fixing his sole or principal residence 
 in a new country with the intention of residing there for a period not 
 limited as to time (u). To change a domicile of choice it need only 
 be relinquished, without any new domicile of choice being necessarily 
 chosen. 
 
 The intention required for a change of domicile as distinguished from 
 the action embodying it, is not necessarily an intention to change a civil 
 status; that is, an intention to cease to be subject to the laws of one 
 country, and to place oneself under the laws of another. It is sufficient 
 to work the change, if there be an intention to settle in a new country 
 as a permanent home. If this intention exists, and is sufficiently carried 
 into effect by acts, certain legal consequences follow, whether such con- 
 sequences were intended or not, and perhaps even though the person in 
 question may have intended the exact contrary. To prove such inten- 
 tion (in the absence of any express declaration), the evidence must lead 
 to the inference that if the question had been formally submitted to the 
 person whose domicile was in question, he would have expressed his 
 wish in favour of a change (x). 
 
 According to the French code the domicile of every Frenchman " est 
 le lieu ou il a son principal etablissement" (y). 
 
 Domicile depends almost entirely upon the will of the individual. He 
 is invested with a domicile of origin at his birth, and this is involuntary, 
 but he may by his own act change this and cause it to be inoperative, 
 while the new domicile subsists, by locating himself in any country he 
 pleases with the intention of settling there. National character, on the 
 other hand, depends upon the will of the State. To divest himself of 
 the national character he acquired at the time of his birth, an individual 
 must in many cases obtain the consent of his own government, and to 
 acquire a new national character the consent of the country of his adop- 
 tion is always necessary (z). 
 
 National character confers benefits, and imposes duties on the indi- 
 vidual. It entitles him to the protection of his country wherever he 
 may be, but it requires him to fulfil the duties of supporting the State, 
 or defending it against its enemies. The extent to which States will 
 protect their subjects, or claim their allegiance when abroad, depends 
 
 chusetts, 158 ; Whicker v. Hume, 7 H. of L. Cas. 124. Wharton. Conflict of 
 Laws, 55]. 
 
 (0 [Hamilton v. Dallas, 1 Ch. D. 257; Hodgson v. De Bcaucliesnc, 12 Moo. 
 T. C. 285; Slutrpe v. Crispin, L. R. 1 P. & M. 611]. 
 
 (u) [King v. Foxwell, 3 Ch. D. 520]. 
 
 (x) [Douglas v. Douglas, L. R. 12 Eq. 6445; Haldane v. Eckford, L. R. 
 8 Eq. 631]. 
 
 (y) [Code Civil, art. 102]. 
 
 (z) [Westlake, 20. Inqli* v. ,9a*fow' Snug Harbour, 3 Peters, 125. 
 Halleck, p. 695].
 
 NATIONAL CHARACTER AND DOMICILE. 205 
 
 entirely upon the discretion and municipal laws of each. A government 
 can always refuse to protect one of its subjects, if it considers that his 
 conduct has shown an intention of renouncing all ties and fulfilling no 
 duties towards his country. It may, also, in case he comes within its 
 jurisdiction, force him to fulfil any obligations incurred before he quitted 
 it. If he has acquired another national character, without his native 
 State renouncing its authority over him, the claims of each State to him 
 can only be determined by treaty, if any exist, or by diplomatic action 
 between the respective governments (a). 
 
 The fact of establishing a permanent residence in a foreign country, 151 1. 
 without being naturalized in it, places a person in a different position Permanent 
 towards his native country from that he occupies while only quilting it [^fo^f 
 as a traveller. He does not thereby lose the right to its protection, but countries, 
 it renders the invocation of it less reasonable. He cannot claim to be 
 exempt from taxes and other burdens not imposed on a simple stranger, 
 and he has no ground of complaint if its municipal laws invest him with 
 both the benefits and disabilities of a native (/;). If the country is in- 
 vaded, and his property is injured or destroyed by some act of war, he 
 has no claim to any special protection from his native country so long 
 as his position is no worse than that of the other inhabitants. Numerous 
 applications were made to England to protect the property of British 
 subjects resident in France, from the requisitions of the Franco-German 
 war of 1870-71, but Lord Granville replied, that such British subjects 
 must bear the same burdens as the other inhabitants (c). 
 
 Down to the year 1870, England imariibly denied the right of her 151 J, 
 subjects to expatriate themselves. She placed no restrictions whatever Expatria- 
 on emigration, but maintained that her subjects carried their national * lon ?L 
 character with them wherever they went, and were always liable to be j au( ]_ 
 treated as subjects on their return (d). This claim has now been aban- 
 doned. It is expressly provided by Act of Parliament, that " Any British 
 subject who has at any time before, or may at any time after the passing 
 of this Act, when in any foreign State and not under any disability, 
 voluntarily become naturalized in such State, shall from and alter the 
 time of his so having become naturalized in that foreign State, be deemed 
 to have ceased to be a British subject and be regarded aa an alien." It 
 is also provided that if naturalized abroad before the passing of the act, 
 he yet wishes to remain a British subject, he shall make a declaration to 
 that effect, and take the oath of allegiance, and he will then be deemed 
 to have been continually a British subject, except in the State where he 
 was naturalized, as long as he remains a subject of it (e). Natural born .Who are 
 British subjects includes not only persons born in British dominions, natura l 
 but also the children and grand-children of British subjects, born out of 
 
 (a) [This subject is fully considered in the Eeport of the Naturalization 
 Commission, 1869, and Sir A. Cockburn on Nationality. The Report is, to a 
 great extent, reprinted in the U. S. Diplomatic Correspondence, Io73. Ap- 
 pendix]. 
 
 (b) [Phillimore, vol. ii. p. 6]. 
 
 (c) [Annual Register, 1871. Pub. Docts., p. 259]. 
 
 (d) [As to the impressment of seamen, see ant'', 108]. 
 
 () [The Naturalization Act, 1870, 33 & 34 Viet. c. 14, s. 6. Appendix A.]
 
 206 NATIONAL CHARACTER AND DOMICILE. 
 
 British the ligeance of Her Majesty, unless the father was at the time of the 
 subjects. child's birth outlawed or attainted for treason (/). Such persons are, 
 therefore, entitled to claim British protection imless they have been 
 naturalized in some other country. But if they were born abroad and 
 have thereby become the subjects of some other State, it seems that Eng- 
 land will not protect them against that State (g). 
 
 8 151 K The question of expatriation is one of vital importance in the United 
 Law of the States. It was estimated in 1868 that upwards of six million persons 
 United had emigrated to that country since 1790, and that they and their descen- 
 ex^atrf 8 * dants num bered more than twenty millions (h). The position of the 
 lion. n government is, therefore, most anomalous if that number of its subjects 
 owe allegiance to foreign States, and it is remarkable that under such cir- 
 cumstances the law should have so long continued doubtful. The Execu- 
 tive government have always claimed an unlimited right of expatriation 
 for the subjects of all other countries, but until the last few years, when 
 the question presented itself in the Supreme Court, not one of the judges 
 atiirmed, while several denied the right for its own citizens (i). To 
 remedy this an Act of Congress has been passed which provides that 
 " Any declaration, instruction, order, or decision of any officer of the 
 United States, which denies, restricts, impairs, or questions the right of 
 expatriation is declared inconsistent with the fundamental principles of 
 the Republic " (&). This act is, however, only declaratory, and no pro- 
 vision is made in it respecting what is to be considered an act of expa- 
 triation. It furnishes no rule for the Executive to determine whether a 
 person is still an American citizen or not, although it subsequently de- 
 clares that " All naturalized citizens of the United States, while in 
 foreign countries, are entitled to, and shall receive from, the government 
 the same protection of persons and property which is accorded to native 
 born citizens " (I). 
 
 151 L. Two laws exist for determining who is a citizen. The Act of Con- 
 
 Who are g ress O f the 10th of February, 1855,provides that "persons heretofore born, 
 
 t Z United aild hereai ' ter to be born > out of tne limits and jurisdiction of the United 
 
 States. States, whose fathers were, or shall be at the time of their birth, citizens 
 
 of the United States, shall be deemed and considered, and are hereby 
 
 declared to be citizens of the United States : Provided, however, that 
 
 the rights of citizenship shall not descend to persons whose fathers 
 
 never resided in the United States "(m). The Fourteenth Amendment to 
 
 the Constitution declares " All persona born or naturalized in the United 
 
 (/) [7 Anne, c, 5, s. 3 ; 4 Geo. II., c. 21, s. 1; 13 Geo. III. c. 21, s. 1. See 
 Boyd, The Merchant Shipping Laws, p. 15]. 
 
 (g) [Lord Russell to Sir J. Crampton, 9th July, 1862. Nat. Comm. Eep. 
 p. 74]. 
 
 (h) [Report of U. S. Committee on Foreign Affairs, 1868]. 
 
 (i) [Opinions of Attorneys-General, vol. viii. p. 139. Kent, Comm., 
 vol. ii. p. 49. Inglw v. Sailor's Snug Harbour, 3 Peters, 125. Halleck, 
 p. 695]. 
 
 (A-) [Act of July, 1868, c. 249, s. 1. U. S. Revised Statutes, tit. xxv. 
 Citizenship, sec. 1999]. 
 
 (I) [Ibid., s. 2; sec. 2000]. 
 
 (m) [V. S. Statutes at Large, vol. x. p. 604].
 
 NATIONAL CHARACTER AND DOMICILE. 207 
 
 States, and subject to the jurisdiction thereof, are citizens of the United 
 States" (). 
 
 The law thus states distinctly who are citizens, but the right of expa- 151 M. 
 triation being admitted, it becomes a matter of difficulty to determine ^ l * ^J 
 when individuals cease to be citizens, or at all events when they cease c iti zens 
 to be entitled to the protection of the United States. abroad. 
 
 " The American citizen," said Chief Justice Marshall, " who goes into 
 a foreign country, although he owes local and temporary allegiance to 
 that country, yet, if he performs no other act changing his position, is 
 entitled to the protection of our Government ; and if without the viola- 
 tion of any municipal law, he should be oppressed unjustly, he would 
 have a right to claim that protection, and the interposition of the 
 American Government in his favour would be considered a justifiable 
 interposition. But his situation is completely changed, where, by his 
 own act, he has made himself the subject of a foreign power. Although 
 this act may not be sufficient to rescue him from punishment for any 
 crime committed against the United States, a point not intended to be 
 decided, yet it certainly places him out of the protection of the United 
 States while within the territory of the sovereign to whom he has sworn 
 allegiance " (o). 
 
 In 1873, Mr. Fish issued instructions to the American Minister in 
 France, in which, after quoting the above dictum of Chief Justice 
 Marshall, he thus explains the principles upon which the American 
 Government now acts in protecting its subjects abroad. " If on the 
 one hand the Government assumes the duty of protecting his rights and 
 privileges, on the other hand the citizen is supposed to be ever ready to 
 place his fortune and even his life at its service, should the public 
 necessities demand such a sacrifice. If, instead of doing this, he per- 
 manently withdraws his person from the national jurisdiction ; if he 
 places his property where it cannot be made to contribute to the national 
 necessities ; if his children are born and reared upon a foreign soil, with 
 no purpose of returning to submit to the jurisdiction of the United 
 States, then, in accordance with the principles laid down by Chief 
 Justice Marshall, and recognised in the 14th Amendment, and in the 
 Act of 1868, he has so far expatriated himself as to relieve this Govern- 
 ment from the obligation of interference for his protection. 
 
 " Each case as it arises must be decided on its own merits. In each 
 the main fact to be determined will be this, has there been such a 
 practical expatriation as removes the individual from the jurisdiction of 
 the United States ? 
 
 " If there has not been the applicant will be entitled to protec- 
 tion " (p). 
 
 Although the American Government may refuse to protect any indi- \yhat 
 vidual citizen who is abroad without an apparent intention of returning, amounts to 
 it does not follow that such a person is necessarily expatriated. If he expatria- 
 
 (n) [Ratified, 20th June, 1868. U. S. Statutes at Large, vol. xv. p. 706]. 
 (o) [Murray v. The Charming Betsy, 2 Cranch, 119]. 
 
 (p) [Mr. Fish to Mr. Washburne, 28th June, 1873. U. S. Dipl. Cor. 1873, 
 p. 259. See also Ib. 1875, p. 489 and p. 503].
 
 208 
 
 NATIONAL CHARACTER AND DOMICILE. 
 
 tion of an 
 American 
 citizen. 
 
 American 
 certificates 
 of natura- 
 lization. 
 
 151 N. 
 
 Naturali- 
 zation 
 Treaty be- 
 tween Eng- 
 land and 
 America. 
 
 1510. 
 Former 
 discussion 
 between 
 England 
 and Ameri- 
 ca as to 
 the allegi- 
 ance of 
 their sub- 
 jects. 
 
 is naturalized abroad, this will amount to an act of expatriation, and the 
 same effect may be attributed to the acceptance of public or military 
 employment in a foreign State without naturalization. Naturalization 
 is without doubt the highest, but not the only evidence of expatria- 
 tion (<?). But the mere fact of residence abroad without an intention of 
 returning does not of itself amount to an act of expatriation (r). 
 
 Certificates of naturalization are issued in America when the require- 
 ments for becoming a citizen have been complied with. There is, 
 however, no uniform system of registration of such certificates, and as 
 there are about 3,000 Federal and State courts having power to grant 
 them, great difficulties sometimes arise in proving naturalization. But 
 when a certificate, valid on the face of it, and founded on the decree of 
 a competent court, is produced, it cannot be questioned except through 
 judicial proceedings instituted for the purpose (s). 
 
 Such is the present state of the law in England and America (). 
 The probability of future disputes between the two countries on the 
 subject of allegiance has been reduced to a minimum, by a convention 
 concluded between them on the 13th May, 1870, by which it is agreed 
 that citizens of either country naturalized as citizens or subjects of the 
 other, are to be treated in all respects as citizens or subjects of such 
 country. This naturalization may, however, be renounced, and the 
 former nationality of the individual resumed on compliance with certain 
 formalities (it). Treaties more or less similar exist between the United 
 States and most other civilized countries (). 
 
 The claims of both England and America, before the laws of each 
 assumed their present shape, either to protect their subjects or to require 
 their services when abroad, have caused endless discussions. In 1848 
 and 1866, Irish agitators resorted to the United States for the purpose of 
 organizing plots against the British government. The Habeas Corpus 
 Act was suspended on both occasions, and several persons were arrested 
 in Ireland on suspicion of having been concerned in treasonable acts 
 either in the United States, or in Ireland. Of the right of England to 
 punish her subjects for treason, wherever committed, there could be no 
 doubt ; nor could the right to punish native born Americans for acts 
 against the government committed in the British Isles be disputed (y). 
 The cases which presented any difficulty were those of native bom 
 British subjects who had been naturalized in America, and had only con- 
 spired there without committing overt acts in Great Britain. At that 
 
 (q) [Opinions of Att. -Gen. (U. S.), vol. xiv. p. 296]. 
 
 (r) [Ibid., vol. ix. p. 359]. 
 
 (a) [See case of the Kastellaus. TJ. S. Dipl. Cor. 1875, p. 577]. 
 
 (t) [In 1873 the President addressed a series of questions on this subject 
 to the heads of the various American state departments. The past and pre- 
 sent American law is fully discussed in the answers. See U. S. Dipl. Cor. 
 1873, p. 1150, etseq.]. 
 
 (u) [See Appendix A. The Naturalization Act, 1872, Schedule. Also U. S. 
 Statutes at Large, vol. xvi. p. 775]. 
 
 (x) [See Analysis of U. S. Naturalization Treaties. U. S. Dipl. Cor. 1873, 
 p. 1274]. 
 
 (?/) [Mr. Seward to Mr. Adams. 10th March, 1867. U. S. Dipl. Cor. 1867, 
 p. 74].
 
 NATIONAL CHARACTER AND DOMICILE. 209 
 
 time the doctrine of perpetual allegiance was strongly insisted on in 
 England. The maxim nemo potest exuere patriam was considered a 
 fundamental one in English law. The United States maintained that 
 their naturalized citizens were to all intents and purposes as much 
 entitled to protection abroad as native born Americans (), and that such 
 persons could therefore not be arbitrarily imprisoned under a suspension 
 of the Habeas Corpus Act, but were entitled to a trial. To this Lord 
 Palmerston replied, that native born British subjects who were naturalized 
 abroad and returned to the United Kingdom were as amenable to British 
 law as any other subjects of Her Majesty () In the cases of Warren 
 and Costello, tried in Ireland in 1867, the Judges refused a jury de 
 medietate linguae, on the ground that, although the prisoners had been 
 naturalized in America, they had been native born British subjects, and, 
 being once under the allegiance of the British sovereign, they remained 
 so for ever (6). Most of the persons arrested who could prove their 
 naturalization in America were, however, liberated at the request of the 
 American government, unless treasonable acts were proved to have been 
 committed by them in Ireland (c). 
 
 During the American civil war the protection of England was fre- 151 P. 
 quently demanded against conscription in the United States army. Lord British 
 Lvons was instructed that there is no rule or principle of international su t>jects m 
 T " T- i , M , ,, ,. . . America 
 
 law which prohibits the government of any country trom requiring Curing the 
 
 aliens resident within its territories to serve in the militia or police of the Civil War. 
 country, or to contribute to the support of such establishments (d). But 
 Her Majesty's government would not consent to British subjects being 
 compelled to serve in the armies of either party, where, besides the 
 ordinary incidents of battle, they would be exposed to be treated as 
 traitors or rebels in a quarrel in which, as aliens, they had no concern, 
 and on their return to England would incur the penalties imposed on 
 British subjects for having taken part in the war (e). All who could 
 prove their British nationality were accordingly exempted from military 
 service (/). But if a British subject had become naturalized in America, 
 England refused to protect him so long as he remained there (g). Indi- 
 viduals who had declared their intention of becoming naturalized, but 
 had not completed the necessary formalities, were also treated as aliens, 
 and exempted (K) ; but Her Majesty's government declined to interfere in 
 their behalf if they had voted at elections, or in any other way exercised 
 any of the exclusive privileges of a citizen (i). In 1863 an Act of Con- 
 gress was passed, specially including " intended " citizens in a further 
 
 (z) [Mr. Buchanan to Mr. Bancroft, 28th Oct. 3848. Hertslet's State 
 Papers, vol. xlvii. p. 1236]. 
 
 (a) [l<3th August, 1849]. 
 
 (b) [Report of Naturalization Commission, 1868, p. 49 and p. 90]. 
 
 (c) [Ibid., p. 48, et seq.]. 
 
 (d) [To Lord Lyons, No. 76, April 4th, 1861]. 
 
 (e) [To Lord Lyons, No. 349, 7th Oct. 1861. Parl. Papers, N. America 
 (No. 13), 1864, p. 34]. 
 
 (/) [Lord Lyons, No. 379, 29th July, 1861]. 
 
 (g) [To Lord Lyons, No. 259, 7th June, 1862]. 
 
 (h) [Mr. Seward to Mr. Stuart, Aug. 20th, 1862]. 
 
 (i) [Consular Circular from Mr. Stuart, No. 99, 25th July, 1862].
 
 210 NATIONAL CHARACTER AND DOMICILE. 
 
 enrolment of the militia (k) ; and a proclamation of the President allowed 
 sixty-five days to such persons to leave the country, or become liable to 
 be enrolled by remaining. To this Great Britain acquiesced, the period 
 allowed for departure being deemed sufficient (I}. It was regarded as an 
 established principle that a government might, by an ex post facto law, 
 include in its conscription any persons permanently resident in its terri- 
 tory, provided it allowed them reasonable time and facilities for depar- 
 ture on the promulgation of such a law (m). 
 
 151 Q. The Prussian military laws, which have now been introduced through- 
 Prussian out the German Empire (), declare that every German subject is liable 
 laws. to m iiitary service, and cannot have that service performed by deputy (o). 
 
 The right to emigrate is, however, not restricted, except as regards the 
 performance of military service (p). Permission to emigrate may be 
 obtained, but this permission, when granted, destroys the quality of 
 Prussian or German subject (g). It is not to be granted to males 
 between the ages of seventeen and twenty-five, without a certificate 
 from the military commission of their district, or to actual soldiers or 
 officers before their discharge, or to persons convoked for military 
 service (r). If anyone does emigrate without permission, and to avoid 
 performing his military service, he becomes liable to a fine or imprison- 
 ment, nor does the infliction of the penalty relieve him from performing 
 the military duties (s). 
 
 Numerous cases have occurred of Prussians evading these duties by 
 going abroad, and then returning to Prussia and claiming to be under the 
 protection of some foreign State. Johann Knocke, a native born Prussian, 
 was naturalized in America, and on returning to Prussia claimed exemp- 
 tion from military service. Mr. Wheaton, then American Minister at 
 Berlin, told him that as long as he was in any other country but Prussia 
 he would be protected, " but having returned to the country of your 
 birth, your native domicile and national character revert (so long as 
 you remain in Prussian dominions), and you are bound to obey the laws 
 as if you had never emigrated " (t). This rule was observed in similar 
 cases until 1859, when the United States endeavoured to protect Holer 
 from the conscription. Mr. Cass asserted that " the moment a foreigner 
 becomes naturalized, his allegiance to his native country is severed for 
 ever " (u). This pretension, however, was not persisted in, nor did it 
 meet with the approval of all American jurists (x). During the civil 
 
 (Jc) [U. S. Statutes at Large, vol. xii. p. 731]. 
 
 (I) [To Lord Lyons, No. 485, 31st Aug. 1863]. 
 
 (???) [Parl. Papers, 1863, N. America (No. 13), p. 34. To Lord Lyons, 
 No. 293, 27th Nov. 1862]. 
 
 (n) [Constitution of the Empire, art. 61. Hertslet, Map of Europe, vol. iii. 
 p. 1947]. 
 
 (o) [Art. 57]. 
 
 (p) [Prussian Constitution, 1850, tit i. art. i.]. 
 [La 
 
 (q) [Law of 31st Dec. 1842, 15]. 
 
 (r) [Ibid, 17]. 
 
 (*) [Penal Code, April 14th, 1851]. 
 
 iLaw< 
 Ibid, 
 Penal 
 [IT. E 
 >id. pp. 9- 
 (u) [Ibid 
 (*) [Hal 
 
 (t) [U. S. Senate Documents, 185960, vol. ii. p. 6. See other cases, 
 
 >] 
 Heck, p. 700]. 
 
 ibid. pp. 957, p. 1364; and Nat. Comrn. Rep. p. 53 
 ' ' [Ibid., p. 133].
 
 NATIONAL CHARACTER AND DOMICILE. 211 
 
 war, it being found that many persons quitted the United States to 
 escape the conscription there, and then applied to that government to 
 save them from serving in the Prussian army, Mr. Judd, American 
 Minister in Prussia, was instructed not to interfere on behalf of such 
 " worthless citizens " (y}. On the 22nd February, 1868, a treaty was 
 signed between the United States and the North German Confederation, 
 containing terms similar to that between the United States and England, 
 except that residence for five years in the country adopted is required in 
 order to entitle the individual to its protection (z). 
 
 England has acted upon similar principles respecting Prussians who British 
 have claimed exemption on the ground of being British subjects. In subjects in 
 1862, Mr. Crossthwaite, Her Majesty's Consul at Cologne, who had 
 naturalized himself in Prussia, was informed by Her Majesty's Govern- 
 ment that his sons were liable to military service while they remained 
 in Prussia (a). 
 
 A foreigner is not permitted to naturalize himself in Germany unless Conditions 
 (1) by the law of his own country he is capable of contracting, or if f ni j* ^ 
 incapable, has obtained the consent of his parent or guardian, (2) unless Q erman y 
 his conduct has been irreproachable, (3) unless he will be received and 
 find an abode at the place where he proposes to settle, (4) and unless he 
 will be able to live so as to support himself and family (6). 
 
 The cases of Martin Kozta and Simon Tousig were instances of 151 E. 
 Austrian subjects leaving their country, and claiming the protection of ^f se f. * 
 the United States, after having only declared their intention of being 
 naturalized in America. Kozta was a Hungarian refugee of 1848-9. Simon 
 He went to Turkey and was imprisoned there, but released on condition Tousig. 
 of leaving the country. He then went to America and declared his 
 intention of being naturalized. In 1853 he went to Smyrna, and ob- 
 tained from the United States Consul a travelling pass, stating he was 
 entitled to American protection. While there, he was seized by some 
 persons in the pay of Austria, who took him out in a boat and threw 
 him into the sea, whence he was picked up by the Hussar, an Austrian 
 ship of war. The American Consul demanded his release, but this being 
 refused, an American ship of war, the St. Louis, was sent to take him 
 by force if his detention was still insisted on. The matter was com- 
 promised by Kozta being shipped off to the United States, while 
 Austria reserved the right to proceed against him if he returned to 
 Turkey. Mr. Marcy, in his despatch to the Austrian Government, 
 justly affirmed that whether Kozta was entitled to American protection 
 or not, Austria had no right to seize him upon Turkish soil, and in 
 spite of the protests of the Turkish Government (c). Simon Tousig on Simon 
 returning to Austria was arrested for offences committed before he had Tousig. 
 
 (y) [U. S. Dipl. Cor. 1863, Pt. II. p. 1020]. 
 
 (z) [U. S. Statutes at Large, vol. xv. p. 615 ; and see Nat. Comm. Kep. 
 p. 149. For the English treaty see Appendix A, 35 & 36 Viet. c. 39, schedule]. 
 
 (a) [Nat. Comm. Rep. p. 73]. 
 
 (b) [Imperial Law, 1st June, 1870. See Revue de Droit Int. 1876, p. 206]. 
 
 (c) [State Papers, vol. xliv. pp. 925-1042. Wheaton, by Dana, p. 146. 
 Westlake, 54j.
 
 212 
 
 NATIONAL CHARACTER AND DOMICILE. 
 
 Case of 
 Heinrich. 
 
 151S. 
 
 Law of 
 France. 
 
 Case of 
 Lucien 
 Alibert. 
 
 Case of 
 Ignacio 
 Tolen. 
 
 left that country. Mr. Marcy declined to interfere for him, on the 
 ground that "having once been subject to the laws of Austria, and while 
 under her jurisdiction violated those laws, his withdrawal from that 
 jurisdiction and acquiring a different national character would not 
 exempt him from their operation whenever he again chose to place him- 
 self under them " (d). Another case occurred in 1873. FranQois A. 
 Heinrich was born in New York of Austrian parents, who were not 
 naturalized in the United States, and three or four years after his birth 
 he was taken to Austria. On becoming of age he claimed to be exempt 
 from serving in the Austrian army, but the United States declined to 
 interfere on his behalf, he being taken to have expatriated himself (e). 
 
 The law of France requires every Frenchman to perform military 
 service in person (/), and imposes a penalty on any one who emigrates 
 without having served his time in the army. But the law also provides 
 that no one but a Frenchman can be admitted into the French army (#), and 
 the quality of Frenchman is ipso facto lost by naturalization abroad (h). 
 Thus an insoumis, or person who fails to join his standard when called 
 upon, ceases to be liable to the conscription on acquiring a foreign 
 nationality, although he still remains subject to the penalty for evading 
 the military law. If, however, he remains abroad for three years from 
 the date of his naturalization, his offence is purged by prescription, and 
 it appears that he may then return to France free from all liability (i). 
 
 Lucien Alibert, a French subject, went to America in 1838 at the age 
 of 18. In 1846 he was naturalized in the United States, and on return- 
 ing to France in 1852 he was arrested as an insoumis. He pleaded his 
 naturalization in America, and though at first convicted, the sentence 
 was quashed by the superior military court of Toulon, on the ground 
 that more than three years had elapsed from the time when he was 
 naturalized to the date of his return to France (&). 
 
 In the case of Ignacio Tolen, a Spaniard, Mr. Webster said, that if 
 the law of Spain had not permitted him to renounce his allegiance, he 
 must expect it to deal with him as with a subject when he placed him- 
 self within its reach . 
 
 (d) [Wheaton, by Laurence, App. p. 929]. 
 
 (e) [U. S. Dipl. Cor. 1873, p. 78]. 
 
 (/) [Law of 27th July, 1872, tit. i. 1]. 
 
 (g) [Ibid, ?]. 
 
 (h) [Code Napoleon. Code Civil, liv. i. ch. ii. 17]. 
 
 (i) [Opinion of M. Treitt. Naturalization Commission Report, 1868, p. 21. 
 Case of Michel Zeiter. Tribunal de Wissembourg, 1860. Nat. Comm. Rep. 
 p. 87]. 
 
 (1) [U. S. Senate Documents, 185960, vol. ii. p. 176]. 
 
 (1) [Halleck, p. 698].
 
 CHAPTER III. 
 
 RIGHTS OF EQUALITY. 
 
 THE natural equality of sovereign States may be modified 152. 
 by positive compact, or by consent implied from constant Na u t i ^ 1 of 
 usage, so as to entitle one State to superiority over another Sutes 
 in respect to certain external objects, such as rank, titles, and ^pact y 
 other ceremonial distinctions. and usage. 
 
 Thus the international law of Europe has attributed to cer- 153. 
 tain States what are called royal honours, which are actually JJonoirs. 
 enjoyed by every empire or kingdom in Europe, by the Pope, 
 the grand duchies in Germany, and the Germanic and Swiss 
 confederations. They were also formerly conceded to the 
 German empire, arid to some of the great republics, such as 
 the United Netherlands and Venice. 
 
 These royal honours entitle the States by whom they are 
 possessed to precedence over all others who do not enjoy the 
 same rank, with the exclusive right of sending to other States 
 public ministers of the first rank, as ambassadors, together 
 with certain other distinctive titles and ceremonies (a). 
 
 Among the princes who enjoy this rank, the Catholic 154. 
 powers concede the precedency to the Pope, or sovereign ^^n deDCe 
 pontiff ; but Kussia and the Protestant States of Europe princes and 
 consider him as bishop of Rome only, and a sovereign prince joying royal 
 in Italy, and such of them as enjoy royal honours refuse him honours, 
 the precedence. 
 
 The Emperor of Germany, under the former constitution of 
 the empire, was entitled to precedence over all other temporal 
 princes, as the supposed successor of Charlemagne and of the 
 Caesars in the empire of the West ; lout since the dissolution 
 
 (a) Vattel, Droit des Gens, torn. i. liv. ii. ch. 3, 38. Martens, Precis du 
 Droit des Gens Moderne de 1'Europe, liv. iii. ch. 2, 129. Kliiber, Droit des 
 Gens Moderne, pt. ii. tit. i. ch. 3, 91, 92. HelFter, 28.
 
 214 RIGHTS OF EQUALITY. 
 
 of the late Germanic constitution, and the abdication of the 
 titles and prerogatives of its head by the Emperor of Austria, 
 the precedence of this sovereign over other princes of the same 
 rank may be considered questionable (6) . 
 
 The various contests between crowned heads for prece- 
 dence are matter of curious historical research as illustrative 
 of European manners at different periods ; but the practical 
 importance of these discussions has been greatly diminished 
 by the progress of civilization, which no longer permits the 
 serious interests of mankind to be sacrificed to such vain 
 pretensions. 
 155. The text-writers commonly assigned to what were called 
 
 Republics, the great republics, who were entitled to royal honours, a 
 rank inferior to crowned heads of that class ; and the United 
 Netherlands, Venice, and Switzerland, certainly did formerly 
 yield the precedence to emperors and reigning kings, though 
 they contested it with the electors and other inferior princes 
 entitled to royal honours. But disputes of this sort have 
 commonly been determined by the relative power of the con- 
 tending parties, rather than by any general rule derived from 
 the form of government. Cromwell knew how to make the 
 dignity and equality of the English Commonwealth respected 
 by the crowned heads of Europe ; and in the different treaties 
 between the French Republic and other powers, it was ex- 
 pressly stipulated that the same ceremonial as to rank and 
 etiquette should be observed between them and France which 
 had subsisted before the revolution (c). 
 c 1M Those monarchical sovereigns who are not crowned heads, 
 
 Monarcha but who enjoy royal honours, concede the precedence on all 
 
 not crowned . i i 
 
 and semi- occasions to emperors and kings. 
 
 sovereigns. Monarchical sovereigns who do not enjoy royal honours 
 
 yield the precedence to those princes who are entitled to these 
 
 honours. 
 
 Semi- sovereign or dependent States rank below sovereign 
 
 States (d). 
 
 (b) Martens, 132. Kliiber, 95. [Especially since 1866, when r Austria 
 was excluded from taking part in the affairs of Germany.] 
 
 (c) Treaty of Campo Forinio, art. 23, and of Luneville, art. 17, with Austria. 
 Treaties of Basle with Prussia and Spain. Schoell, Histoire des Traites de 
 Paix, toin. i. p. 610. Edit. Bruxelles. 
 
 (d) Kliiber, 98.
 
 RIGHTS OF EQUALITY. 215 
 
 Semi- sovereign States, and those under the protection or 
 Suzerainete of another sovereign State, necessarily rank below 
 that State on which they are dependent. But where third 
 parties are concerned, their relative rank must be determined 
 by other considerations ; and they may even take precedence of 
 States completely sovereign, as was the case with the electors 
 under the former constitution of the Germanic empire, in 
 respect to other princes not entitled to royal honours (e). 
 
 These different points respecting the relative rank of sove- 
 reigns and States have never been determined by any positive 
 regulation or international compact : they rest on usage and 
 general acquiescence. An abortive attempt was made at the 
 Congress of Vienna to classify the different States of Europe, 
 with a view to determine their relative rank. At the sitting 
 of the 10th December, 1814, the plenipotentiaries of the eight 
 powers who signed the treaty of peace at Paris, named a com- 
 mittee to which this subject was referred. At the sitting of 
 the 9th February, 1815, the report of the committee, which 
 proposed to establish three classes of powers, relatively to the 
 rank of their respective ministers, was discussed by the Con- 
 gress ; but doubts having arisen respecting this classification, 
 and especially as to the rank assigned to the great republics, 
 the question was indefinitely postponed, and a regulation 
 established determining merely the relative rank of the diplo- 
 matic agents of crowned heads (/). 
 
 Where the rank between different States is equal or unde- 157. 
 termined, different expedients have been resorted to for the 
 purpose of avoiding a contest, and at the same time reserving <*< 
 the respective rights and pretensions of the parties. Among 
 these is what is called the usage of the alternat, by which the 
 rank and places of different powers are changed from time to 
 time, either in a certain regular order, or one determined by 
 lot. Thus, in drawing up public treaties and conventions, it 
 is the usage of certain powers to alternate, both in the pre- 
 amble and the signatures, so that each power occupies, in the 
 copy intended to be delivered to it, the first place. The regu- 
 lation of the Congress of Vienna, above referred to, provides 
 that in acts and treaties between those powers which admit 
 
 (e) Heffter, das Europaische Vblkerrecht, 28, No. iii. 
 
 (/) Kliiber, Acten dea Weiner Congresses, torn. viii. pp. 98, 102, 108, 116.
 
 216 
 
 RIGHTS OF EQUALITY. 
 
 the alternat, the order to be observed by the different minis- 
 ters shall be determined by lot (</). 
 
 Another expedient which has frequently been adopted to 
 avoid controversies respecting the order of signatures to 
 treaties and other public acts, is that of signing in the order 
 assigned by the French alphabet to the respective Powers 
 represented by their ministers (h). 
 
 158. The primitive equality of nations authorises each nation to 
 
 isUn ge m& ke use f i ts own language in treating with others, and this 
 diplomatic right is still, in a certain degree, preserved in the practice of 
 some States. But general convenience early suggested the 
 use of the Latin language in the diplomatic intercourse 
 between the different nations of Europe. Towards the end 
 of the fifteenth century, the preponderance of Spain contri- 
 buted to the general diffusion of the Castilian tongue as the 
 ordinary medium of political correspondence. This, again, 
 has been superseded by the language of France, which, since 
 the age of Louis XIV., has become the almost universal diplo- 
 matic idiom of the civilized world. Those States which still 
 retain the use of their national language in treaties and diplo- 
 matic correspondence, usually annex to the papers transmitted 
 by them a translation in the language of the opposite party, 
 wherever it is understood that this comity will be reciprocated. 
 Such is the usage of the Germanic Confederation, of Spain, 
 and the Italian courts. Those States which have a common 
 language generally use it in their transactions with each 
 other. Such is the case between the Germanic Confedera- 
 tion and its different members, and between the respective 
 members themselves ; between the different States of Italy ; 
 and between Great Britain and the United States of America. 
 159. All sovereign princes or States may assume whatever titles 
 Titles of O f dignity they think fit, and may exact from their own sub- 
 princes and jects these marks of honour. But their recognition by other 
 States. States is not a matter of strict right, especially in the case of 
 new titles of higher dignity, assumed by sovereigns. Thus 
 the royal title of King of Prussia, which was assumed by 
 Frederick I. in 1701, was first acknowledged by the Emperor 
 
 (g) Annexe, xvii. a 1'Acte du Congres de Vienne, art. 7. 
 (h) Kliiber, Uebersicht der diplomatischen Verhandlungeri des Wiener Con- 
 gresses, 164.
 
 RIGHTS OF EQUALITY. 217 
 
 of Germany, and subsequently by the other princes and States 
 of Europe. It was not acknowledged by the Pope until the 
 reign of Frederick William II. in 1786, and by the Teutonic 
 knights until 1792, this once famous military order still 
 retaining the shadow of its antiquated claims to the Duchy of 
 Prussia until that period (i). So also the title of Emperor of 
 all the Russias, which was taken by the Czar, Peter the 
 Great, in 1701, was successively acknowledged by Prussia, the 
 United Netherlands, and Sweden in 1723, by Denmark in 
 1732, by Turkey in 1739, by the emperor and the empire in 
 1745 6, by France in 1745, by Spain in 1750, and by the 
 Republic of Poland in 1764. In the recognition of this title 
 by France, a reservation of the right of precedence claimed by 
 that crown was insisted on, and a stipulation entered into by 
 Russia in the form of a Reversale, that this change of title 
 should make no alteration in the ceremonies observed between 
 the two courts. On the accession of the Empress Catherine II. 
 in 1762, she refused to renew this stipulation in that form, but 
 declared that the imperial title should make no change in the 
 ceremonial observed between the two courts. This declaration 
 was answered by the court of Versailles in a counter declara- 
 tion, renewing the recognition of that title, upon the express 
 condition, that, if any alteration should be made by the court 
 of St. Petersburg in the rules previously observed by the two 
 courts as to rank and precedence, the French crown would 
 resume its ancient style, and cease to give the title of Imperial 
 to that of Russia (&). 
 
 The title of Emperor, from the historical associations with 
 which it is connected, was formerly considered the most emi- 
 nent and honourable among all sovereign titles ; but it was 
 never regarded by other crowned heads as conferring, except 
 in the single case of the Emperor of Germany, any prerogative 
 or precedence over those princes. 
 
 The usage of nations has established certain maritime cere- 160. 
 monials to be observed, either on the ocean, or those parts of Jere-* 1 
 the sea over which a sort of supremacy is claimed by a par- monials. 
 ticular State. 
 
 (i) Ward's History of the Law of Nations, vol. ii. pp. 245248. Kliiber, 
 Droit des Gens Moderne de 1' Europe, pt. ii. tit. i. ch. 2, 107, note c. 
 
 (k) Flassan, Histoire de la Diplomatic Francaise, torn. vi. liv. iii. pp. 
 328-364.
 
 218 EIGHTS OF EQUALITY. 
 
 Among these is the salute by striking the flag or the sails, 
 or hy firing a certain number of guns on approaching a fleet 
 or a ship of war, or entering a fortified port or harbour. 
 
 Every sovereign State has the exclusive right, in virtue of 
 its independence and equality, to regulate the maritime cere- 
 monial to be observed by its own vessels towards each other, 
 or towards those of another nation, on the high seas, or within 
 its own territorial jurisdiction. It has a similar right to 
 regulate the ceremonial to be observed within its own exclu- 
 sive jurisdiction by the vessels of all nations, as well with 
 respect to each other, as towards its own fortresses and ships 
 of war, and the reciprocal honours to be rendered by the latter 
 to foreign ships. These regulations are established either by 
 its own municipal ordinances, or by reciprocal treaties with 
 other maritime powers (Z). 
 
 Where the dominion claimed by the State is contested by 
 foreign nations, as in the case of Great Britain in the Narrow 
 Seas, the maritime honours to be rendered by its flag are also 
 the subject of contention. The disputes on this subject have 
 not unfrequently formed the motives or pretexts for war be- 
 tween the powers asserting these pretensions, and those by 
 whom they were resisted. The maritime honours required by 
 Denmark, in consequence of the supremacy claimed by that 
 power over the Sound and Belts, at the entrance of the Baltic 
 Sea, have been regulated and modified by different treaties 
 with other States, and especially by the convention of the 15th 
 of January, 1829, between Russia and Denmark, suppressing 
 most of the formalities required by former treaties. This 
 convention is to continue in force until a general regulation 
 shall be established among all the maritime powers of Europe, 
 according to the protocol of the Congress of Aix-la-Chapelle, 
 signed on the 9th November, 1818, by the terms of which 
 it was agreed, by the ministers of the five great powers, 
 Austria, France, Great Britain, Prussia, and Russia, that 
 the existing regulations observed by them should be referred 
 
 (1) Bynkershoek, de Dominio Maris, cap. 2, 4. Martens, Precis du Droit 
 des Gens Moderne de 1'Europe, liv. iv. ch. 4, 159. Kliiber, Droit des Gens 
 Moderne de TEurope, pt. ii. tit. 1, ch. 3, 117122. [See U. S. Dipl. Cor. 
 1872, p. 202, where the United States complained of the Canadian flag being 
 hoisted over the Union flag, on board a United States vessel captured for 
 violating the fishing laws.]
 
 RIGHTS OF EQUALITY. 219 
 
 to the ministerial conferences at London, and that the other 
 maritime powers should be invited to communicate their 
 views of the subject in order to form some such general 
 regulation (m). 
 
 (m) J. H. W. Schlegel, Staats Recht des Konigreichs Danemark, 1 Theil, 
 412. Martens, Nouveau 
 e la Mer, t. i. liv. 2 ch. 15. 
 
 . . . , , 
 
 p. 412. Martens, Nouveau Recueil, torn. viii. p. 73. Ortolan, Diplomati 
 d
 
 CHAPTER IV. 
 
 161. 
 
 National 
 proprietary 
 
 162. 
 
 Public and 
 
 private 
 
 property. 
 
 163. 
 
 Eminent 
 domain. 
 
 164. 
 
 Prescrip- 
 tion. 
 
 RIGHTS OF PROPERTY. 
 
 THE exclusive right of every independent State to its 
 territory and other property, is founded upon the title origi- 
 nally acquired by occupancy, conquest, or cession, and sub- 
 sequently confirmed by the presumption arising from the lapse 
 of time, or by treaties and other compacts with foreign States. 
 
 This exclusive right includes the public property or domain 
 of the State, and those things belonging to private individuals, 
 or bodies corporate, within its territorial limits. 
 
 The right of the State to its public property or domain is 
 absolute, and excludes that of its own subjects as well as 
 other nations. The national proprietary right, in respect to 
 those things belonging to private individuals, or bodies cor- 
 porate, within its territorial limits, is absolute, so far as it 
 excludes that of other nations ; but, in respect to the members 
 of the State, it is paramount only, and forms what is called 
 the eminent domain (a] ; that is, the right, in case of necessity 
 or for the public safety, of disposing of all the property of 
 every kind within the limits of the State. 
 
 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 be- 
 tween nation and nation ; but the constant and approved 
 practice of nations shows that, by whatever name it be called, 
 the uninterrupted 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 posses- 
 sion by an individual excludes the claim of every other person 
 to the article of property in question. This rule is founded 
 
 (a) Vattel, Droit des Gens, liv. i. ch. 20, 235, 244. Kuther forth' s Inst. 
 of Natural Law, vol. ii. ch. 9, 6. Heffter, Das Eiiropaische Volkerrecht, 
 64, 69, 70.
 
 RIGHTS OF PROPERTY. 221 
 
 upon the supposition, confirmed by constant experience, that 
 every person will naturally seek to enjoy that which belongs 
 to him ; and the inference fairly to be drawn from his silence 
 and neglect, of the original defect of his title, or his intention 
 to relinquish it (b). 
 
 The title of almost all the nations of Europe to the terri- 165. 
 tory now possessed by them, in that quarter of the world, was Jf^!* 
 originally derived from conquest, which has been subsequently covery con- 
 confirmed by long possession and international compacts, to compact 
 which all the European States have successively become 
 parties. Their claim to the possessions held by them in the 
 New World, discovered by Columbus and other adventurers, 
 and to the territories which they have acquired on the conti- 
 nents and islands of Africa and Asia, was originally derived 
 from discovery, or conquest and colonization, and has since 
 been confirmed in the same manner, by positive compact. 
 Independently of these sources of title, the general consent 
 of mankind has established the principle, that long and un- 
 interrupted possession by one nation excludes the claim of 
 every other. Whether this general consent be considered as 
 an implied contract, or as positive law, all nations are equally 
 bound by it ; since all are parties to it, since none can safely 
 disregard it without impugning its own title to its posses- 
 sions, and since it is founded upon mutual utility, and tends 
 to promote the general welfare of mankind. 
 
 The Spaniards and Portuguese took the lead among the 166. 
 nations of Europe, in the splendid maritime discoveries in the 0^1493." 
 East and the West, during the fifteenth and sixteenth cen- 
 turies. According to the European ideas of that age, the 
 heathen nations of the other quarters of the globe were the 
 lawful spoil and prey of their civilized conquerors, and as be- 
 tween the Christian powers themselves, the Sovereign Pontiff 
 was the supreme arbiter of conflicting claims. Hence the 
 
 (b) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 4. Pufl'endorf, Jus Naturae 
 et Gentium, lib. iv. cap. 12. Vattel, Droit des Gens, tome i. liv. ii. ch. 11. 
 K uthe rforth's Inst. of Natural Law, vol. i. ch. 8 ; vol. ii. ch. 9, 3, 6. 
 
 " Sic qui rem suam ab alio teneri scit, nee quicquam contradicit multo 
 tempore, is nisi causa alia manifesto appareat, non videtur id alio fccisse 
 aniuio, quam qu6d rem illam in suaram rerum numero esse nollet." Grotius 
 in loc. cit. 
 
 [Calvo thinks acquisition by prescription more necessary for States than 
 individuals. The latter can appeal to courts of law to decide upon their title, 
 while the former too often resort to arms for the settlement of such differences. 
 Droit International, vol. i. 173.]
 
 222 EIGHTS OF PROPERTY. 
 
 famous bull, issued by Pope Alexander VI., in 1493, by which 
 he granted to the united crowns of Castile and Arragon all 
 lands discovered, and to be discovered, beyond a line drawn 
 from pole to pole, one hundred leagues west from the Azores, 
 or Western Islands, under which Spain has since claimed to 
 exclude all other European nations from the possession and 
 use, not only of the lands but of the seas in the New "World 
 west of that line. Independent of this papal grant, the right 
 of prior discovery was the foundation upon which the different 
 European nations, by whom conquests and settlements were 
 successively made on the American continent, rested their 
 respective claims to appropriate its territory to the exclusive 
 use of each nation. Even Spain did not found her preten- 
 sion solely on the papal grant. Portugal asserted a title 
 derived from discovery and conquest to a portion of South 
 America ; taking care to keep to the eastward of the line 
 traced by the Pope, by which the globe seemed to be divided 
 between these two great monarchies. On the other hand, 
 Great Britain, France, and Holland, disregarded the pretended 
 authority of the papal see, and pushed their discoveries, con- 
 quests, and settlements, both in the East and West Indies ; 
 until conflicting with the paramount claims of Spain and 
 Portugal, they produced bloody and destructive wars between 
 the different maritime powers of Europe. But there was one 
 thing in which they all agreed, that of almost entirely disre- 
 garding the right of the native inhabitants of these regions. 
 Thus the bull of Pope Alexander VI. reserved from the grant 
 to Spain all lands, which had been previously occupied by any 
 other Christian nation ; and the patent granted by Henry VII. 
 of England to John Cabot and his sons, authorized them 
 " to seek out and discover all islands, regions, and provinces 
 whatsoever, that may belong to heathens and infidels ; " and 
 "to subdue, occupy, and possess these territories, as his 
 vassals and lieutenants." In the same manner, the grant 
 from Queen Elizabeth to Sir Humphrey Gilbert empowers 
 him to " discover such remote heathen and barbarous lands, 
 countries, and territories, not actually possessed by any 
 Christian prince or people, and to hold, occupy, and enjoy 
 the same, with all their commodities, jurisdictions, and 
 royalties." It thus became a maxim of policy and of law,
 
 RIGHTS OF PROPERTY. 223 
 
 that the right of the native Indians was subordinate to that 
 of the first Christian discoverer, whose paramount claim ex- 
 cluded that of every other civilized nation, and gradually 
 extinguished that of the natives. In the various wars, 
 treaties, and negotiations, to which the conflicting pretensions 
 of the different States of Christendom to territory on the 
 American continents have given rise, the primitive title of the 
 Indians has been entirely overlooked, or left to be disposed of 
 by the States within whose limits they happened to fall, by 
 the stipulations of the treaties between the different European 
 powers. Their title has thus been almost entirely extinguished 
 by force of arms, or by voluntary compact, as the progress of 
 cultivation gradually compelled the savage tenant of the 
 forest to yield to the superior power and skill of his civilized 
 invader (c). 
 
 In the dispute which took place in 1790, between Great 1 ? 7 
 
 Dispute 
 Britain and Spain, relative to Nootka Sound, the latter between 
 
 claimed all the north-western coast of America as far north ^tain 
 as Prince William's Sound, in latitude 61, upon the ground and Spain, 
 of prior discovery and long possession, confirmed by the Nootksf 
 eighth article of the Treaty of Utrecht, referring to the state 
 of possession in the time of his Catholic Majesty Charles II. 
 This claim was contested by the British government, upon the 
 principle that the earth is the common inheritance of man- 
 kind, of which each individual and each nation has a right to 
 appropriate a share, by occupation and cultivation. This dis- 
 pute was terminated by a convention between the two powers, 
 stipulating that their respective subjects should not be dis- 
 turbed in their navigation and fisheries in the Pacific Ocean 
 or the South Seas, or in landing on the coasts of those seas, 
 not already occupied, for the purpose of carrying on their 
 commerce with the natives of the country, or of making set- 
 tlements there, subject to the following provisions : 
 
 1. That the British navigation and fishery should not be 
 made the pretext for illicit trade with the Spanish settle- 
 ments, and that British subjects should not navigate or fish 
 within the space of ten marine leagues from any part of the 
 coasts already occupied by Spain. 
 
 2. That in all parts of the north-western coasts of North 
 
 (c) Johnson v. M'Intosh, 8 Wheaton, 571 -605.
 
 224 
 
 RIGHTS OF PROPERTY. 
 
 168. 
 
 Contro- 
 versy be- 
 tween the 
 United 
 States anfl 
 Russia, 
 respecting 
 the north- 
 western 
 coast of 
 America. 
 
 America, or of the islands adjacent, situated to the north of 
 the parts of the said coast already occupied hy Spain, 
 wherever the subjects of either of the two powers should 
 have made settlements since the month of April, 1789, or 
 should thereafter make any, the subjects of the other should 
 have free access, and should carry on their trade without any 
 disturbance or molestation. 
 
 8. That, with respect to the eastern and western coasts of 
 South America, and the adjacent islands, no settlement 
 should be formed thereafter, by the respective subjects, in 
 such parts of those coasts as are situated to the south of 
 those parts of the same coasts, and of the adjacent islands 
 already occupied by Spain ; provided that the respective sub- 
 jects should retain the liberty of landing on the coasts and 
 islands so situated, for the purposes of their fishery, and of 
 erecting huts and other temporary buildings, for those pur- 
 poses only (d). 
 
 By an ukase of the Emperor Alexander of Russia, of the 
 4-16th September, 1821, an exclusive territorial right on the 
 north-west coast of America was asserted as belonging to the 
 Russian Empire, from Behring's Straits to the 51st degree of 
 north latitude, and in the Aleutian Islands, on the east coast 
 of Siberia, and the Kurile Islands, from the same straits to 
 the South Cape in the Island of Ooroop, in 45 51' north 
 latitude. The navigation and fishery of all other nations 
 were prohibited in the islands, ports, and gulfs, within the 
 above limits ; and every foreign vessel was forbidden to touch 
 at any of the Russian establishments above enumerated, or 
 even to approach them, within a less distance than 100 
 Italian miles, under penalty of confiscation of the cargo. 
 The proprietary rights of Russia to the extent of the north- 
 west coast of America, specified in this decree, were rested 
 upon the three bases said to be required by the general law of 
 nations and immemorial usage ; that is : upon the title of 
 first discovery ; upon the title of first occupation ; and, in 
 the last place, upon that which results from a peaceable and 
 uncontested possession of more than half a century. It was 
 
 (d) Annual Register for 1790 (State Papers), pp. 285305 ; 1791, pp. 208, 
 214, 222 227. Greenhow, History of Oregon and California, p. 466 : Proofs 
 and Illustrations, K. No. 1.
 
 RIGHTS OF PROPERTY. 225 
 
 added, that the extent of sea, of which the Russian posses- 
 sions on the continents of Asia and America form the limits 
 comprehended all the conditions which were ordinarily at- 
 tached to shut seas (mers fermees) ; and the Russian govern- 
 ment might consequently deem itself authorized to exercise 
 upon this sea the right of sovereignty, and especially that of 
 entirely interdicting the entrance of foreigners. But it pre- 
 ferred only asserting its essential rights, by measures adapted 
 to prevent contraband trade within the chartered limits of the 
 American Russian Company. 
 
 All these grounds were contested, in point of fact as well as 
 right, by the American government. The Secretary of State, 
 Mr. John Q. Adams, in his reply to the communication of the 
 Russian Minister at Washington, stated, that from the period 
 of the existence of the United States as an independent 
 nation, their vessels had freely navigated these seas, and the 
 right to navigate them was a part of that independence ; as 
 was also the right of their citizens to trade, even in arms and 
 munitions of war, with the aboriginal natives of the north- 
 west coast of America, who were not under the territorial 
 jurisdiction of other nations. He totally denied the Russian 
 claim to any part of America south of the 55th degree of 
 north latitude, on the ground that this parallel was declared, 
 in the charter of the Russian American Company, to be the 
 southern limit of the discoveries made by the Russians in 
 1799 ; since which period they had made no discoveries or 
 establishments south of that line, on the coast claimed by 
 them. With regard to the suggestion, that the Russian 
 government might justly exercise sovereignty over the 
 northern Pacific Ocean, as mare clausum, because it claimed 
 territories both on the Asiatic and American coasts of that 
 ocean, Mr. Adams merely observed, that the distance between 
 those coasts on the parallel of 51 degrees, was not less than 
 four thousand miles ; and he concluded by expressing the 
 persuasion of the American government, that the citizens of the 
 United States would remain unmolested in the prosecution of 
 their lawful commerce, and that no effect would- be given to 
 a prohibition, manifestly incompatible with their rights (e). 
 
 (e) Annual Register, vol. Ixiv. pp. 576584. Correspondence between 
 Mr. Secretary Adams and Mr. Poletica.
 
 226 RIGHTS OF PROPERTY. 
 
 16 9- The negotiations on this subject were finally terminated by 
 of 1824, a convention between the two governments, signed at Peters- 
 United 1 the t)Urg ' on tlie 6 ~ 17tl1 A P ril > 1824 > containing the following 
 States and stipulations : 
 
 " Art. 1. It is agreed that, in any part of the great ocean, 
 commonly called the Pacific Ocean or South Sea, the respec- 
 tive citizens or subjects of the high contracting powers shall 
 be neither disturbed nor restrained, either in navigation or in 
 fishing, or in the power of resorting to the coasts, upon points 
 which may not already have been occupied, for the purpose of 
 trading with the natives, saving always the restrictions and 
 conditions determined by the following articles : 
 
 "Art. 2. With the view of preventing the rights of naviga- 
 tion and of fishing, exercised upon the great ocean by the 
 citizens and subjects of the high contracting powers, from 
 becoming the pretext for an illicit trade, it is agreed that the 
 citizens of the United States shall not resort to any point 
 where there is a Russian establishment, without the per- 
 mission of the governor or commander ; and that, reciprocally, 
 the subjects of Russia shall not resort, without permission, 
 to any establishment of the United States upon the north- 
 west coast. 
 
 " Art. 3. It is moreover agreed, that hereafter, there shall 
 not be formed by the citizens of the United States, or under 
 the authority of the said States, any establishment upon the 
 north-west coast of America, nor in any of the islands ad- 
 jacent, to the north of fifty-four degrees and forty minutes of 
 north latitude ; and that, in the same manner, there shall be 
 none formed by Russian subjects, or under the authority of 
 Russia, south of the same parallel. 
 
 "Art. 4. It is, nevertheless, understood, that, during a 
 term of ten years, counting from the signature of the present 
 Convention, the ships of both powers, or which belong to 
 their citizens or subjects, respectively, may reciprocally fre- 
 quent, without any hindrance whatever, the interior seas, 
 gulfs, harbours, and creeks, upon the coast mentioned in the 
 preceding article, for the purpose of fishing and trading with 
 the natives of the country." 
 
 . 170. Great Britain had also formally protested against the 
 SiaS* 08 claims and principles set forth in the Russian ukase of 1821,
 
 RIGHTS OF PROPERTY. 
 
 227 
 
 immediately on its promulgation, and subsequently at the 
 Congress of Verona. The controversy, as between the Britain and 
 British and Eussian governments, was finally closed by a con- ussla * 
 Tention signed at Petersburg, February 16-28, 1825, which 
 also established a permanent boundary between the territories 
 respectively claimed by them on the continent and islands of 
 North-western America. 
 
 This treaty contained the following stipulations : 
 
 " Art. 1. It is agreed that the respective subjects of the 
 high contracting parties shall not be troubled or molested in 
 any part of the ocean commonly called the Pacific Ocean, 
 either in navigating the same, in fishing therein, or in landing 
 at such part of the coast as shall not have been already occu- 
 pied, in order to trade with the natives, under the restrictions 
 and conditions specified in the following articles : 
 
 " Art. 2. In order to prevent the right of navigating and 
 fishing, exercised upon the ocean by the subjects of the high 
 contracting parties, from becoming the pretext for an illicit 
 commerce, it is agreed that the subjects of his Britannic 
 Majesty shall not land at any place where there may be a 
 Eussian establishment, without the permission of the governor 
 or commandant ; and, on the other hand, that Eussian sub- 
 jects shall not land, without permission, at any British estab- 
 lishment on the north-west coast." 
 
 By the 3rd and 4th articles it was agreed that " the line of 
 demarcation between the possessions of the high contracting 
 parties upon the coast of the continent and the islands of 
 America to the north-west," should be drawn from the 
 southernmost point of Prince of Wales's island, in latitude 
 54 degrees 40 minutes eastward, to the great inlet in the con- 
 tinent called Portland Channel, and along the middle of that 
 inlet to the 56th degree of latitude, whence it should follow 
 the summit of the mountains bordering the coast, within ten 
 leagues north-westward, to Mount St. Elias, and thence north, 
 in the course of the 141st meridian west from Greenwich, to 
 the frozen ocean, " which line shall form the limit between 
 the Eussian and the British possessions in the , continent of 
 America to the north-west." 
 
 " Art. 5. It is, moreover, agreed that no establishment 
 shall be formed by either of the two parties within the limits 
 
 y 2
 
 228 RIGHTS OF PROPERTY. 
 
 assigned by the two preceding articles to the possessions of 
 the other. Consequently, British subjects shall not form any 
 establishment, either upon the coast, or upon the border of 
 the continent comprised within the limits of the Russian pos- 
 sessions, as designated in the two preceding articles ; and, in 
 like manner, no establishment shall be formed by Russian 
 subjects beyond the said limits. 
 
 " Art. 6. It is understood that the subjects of his Britannic 
 Majesty, from whatever quarter they may arrive, whether from 
 the ocean or from the interior of the continent, shall for ever 
 enjoy the right of navigating freely, and without any hindrance 
 whatever, all the rivers and streams which in their course 
 towards the Pacific Ocean may cross the line of demarcation 
 upon the line of coast described in article 3 of the present 
 convention. 
 
 " Art. 7. It is also understood, that, for the space of ten 
 years from the signature of the present Convention, the ves- 
 sels of the two powers, or those belonging to their respective 
 subjects, shall mutually be at liberty to frequent, without any 
 hindrance whatever, all the inland seas, gulfs, havens, and 
 creeks on the coast, mentioned in article 3, for the purpose of 
 fishing and trading with the natives. 
 
 " Art. 8. The port of Sitka, or Novo Archangelsk, shall be 
 open to the commerce and vessels of British subjects for the 
 space of ten years, from the date of the exchange of the rati- 
 fications of the present Convention. In the event of an 
 extension of this term being granted to any other power, the 
 like extension shall be granted also to Great Britain. 
 
 " Art. 9. The above-mentioned liberty of commerce shall 
 not apply to the trade in spirituous liquors, in fire-arms, or 
 other arms, gunpowder or other warlike stores ; the high con- 
 tracting parties reciprocally engaging not to permit the above- 
 mentioned articles to be sold or delivered, in any manner 
 whatever, to the natives of the country. 
 
 The 10th and llth articles contain regulations respecting 
 British or Russian vessels, navigating the Pacific Ocean, and 
 putting into the ports of the respective parties in distress ; 
 and for the settlement of all cases of complaint arising under 
 the treaty (/). 
 
 (/) Greenhow, Hist, of Oregon, &c., p. 469, Proofs, I. No. 5.
 
 RIGHTS OF PROPERTY. 229 
 
 In the meantime, the period of ten years, established by 171- 
 the 4th article of the Convention between the United States O f t ^ e Q OU . 
 and Russia, during which the vessels of both nations might JJ^ube * 
 frequent the bays, creeks, harbours, and other interior waters tween the 
 on the north-western coast of America, had expired. The g^tes and 
 Russian government had chosen to consider that article as the Russia, 
 only limitation of its right to exclude American vessels from 
 all parts of the division of the coast, on which the United 
 States stipulated to form no establishments ; disregarding en- 
 tirely the 1st article of the Convention, by which all unoccupied 
 places on the north-western-coast were declared free and open 
 to the citizens or subjects of both parties American vessels 
 were consequently prohibited by the Russian authorities from 
 trading on the unoccupied parts of that coast, north of the 
 parallel of 54th degree 40 minutes. The American govern- 
 ment protested against this prohibition, and at the same 
 time, proposed to the Russian government to renew the stipu- 
 lations of the Convention of 1824, for an indefinite period of 
 time (#). 
 
 In the letter of instructions from the Secretary of State, 
 Mr. Forsyth, to the American Minister at Petersburg, it was 
 stated, that if the 4th article was to be considered as merely 
 applicable to parts of the coast unoccupied, then it merely 
 provided for the temporary enjoyment of a privilege which 
 existed in perpetuity, under the law of nations, and which 
 had been expressly declared so to exist by a previous article 
 of the Convention. Containing, therefore, no provision not 
 embraced in the preceding article, it would be useless and 
 of no effect. But the rule in regard to the construction of 
 an instrument, of whatever kind, was, that it should be so 
 construed, if possible, as that every part may stand. 
 
 If the article were construed to include points of the coast 
 already occupied, it then took effect, thus far, as a tempo- 
 rary exception to a perpetual prohibition, and the only con- 
 sequence of the expiration of the term to which it was 
 limited, would be the immediate and continued operation of 
 the prohibition. 
 
 It was still more reasonable to understand it, however, as 
 
 (y) Greeuhovr, pp. 343 3tJl.
 
 230 RIGHTS OF PROPERTY. 
 
 intended to grant permission to enter interior bays, &c., at the 
 mouths of which there might be establishments, or the shores 
 of which might be, in part, but not wholly, occupied by such 
 establishments, thus providing for a case which would other- 
 wise admit of doubt, as without the 4th article it would be 
 questionable whether the bays, &c., described in it belonged 
 to the first or second article. 
 
 In no sense could it be understood as implying an acknow- 
 ' ledgment, on the part of the United States, of the right of 
 Russia to the possession of the coast above the latitude of 
 54 degrees 40 minutes north. It must be taken in connec- 
 tion with the other articles of the Convention, which had, 
 in fact, no reference whatever to the question of the right 
 of possession of the unoccupied part of the coast. In a 
 spirit of compromise, and to prevent future collisions or dif- 
 ficulties, it was agreed that no new establishments should be 
 formed by the respective parties to the north or south of a 
 certain parallel of latitude, after the conclusion of the agree- 
 ment; but the question of the right of possession beyond 
 the existing establishments, as it subsisted previously to, or 
 at the time of the conclusion of the convention, was left 
 untouched. The United States, in agreeing not to form 
 new establishments to the north of latitude 54 degrees 40 
 minutes north, made no acknowledgment of the right of Russia 
 to the territory above that line. If such an admission had 
 been made, Russia, by the same construction of the article, 
 must have acknowledged the right of the United States to the 
 territory south of the designated line. But that Russia did 
 not so understand the article, was conclusively proved by her 
 having entered into a similar agreement in a subsequent 
 treaty (1825) with Great Britain ; and having, in fact, ac- 
 knowledged in that instrument the right of the same territory 
 by Great Britain. The United States could only be con- 
 sidered as acknowledging the right of Russia to acquire, by 
 actual occupation, a just claim to unoccupied lands above the 
 latitude 54 degrees 40 minutes north ; and even this was mere 
 matter of inference, as the Convention ,of 1824 contains 
 nothing more than a negation of the right of the United 
 States to occupy new points within that limit. 
 
 Admitting that this inference was just, and was in contem-
 
 RIGHTS OF PROPERTY. 231 
 
 plation of the parties to the Convention, it would not follow 
 that the United States ever intended to abandon the just right 
 acknowledged by the first article to belong to them under 
 the law of nations, i.e. to frequent any part of the unoccupied 
 coasts of North America, for the purpose of fishing or trading 
 with the natives. All that the Convention admitted was an 
 inference of the right of Russia to acquire possession by set- 
 tlement north of 54 degrees 40 minutes north. Until that 
 actual possession was taken, the first article of the Conven- 
 tion acknowledged the right of the United States to fish and 
 trade as prior to its negotiation. This was not only the just 
 construction, but it was the one both parties were interested in 
 putting upon the instrument, as the benefits were equal and 
 mutual, and the object of the Convention, to avoid converting 
 the exercise of the common right into a dispute about exclu- 
 sive privilege, was secured by it. 
 
 These arguments were not controverted by the Russian 
 cabinet, which, however, declined the proposition for a 
 renewal of the engagements contained in the 4th article, and 
 the matter still rests on the same footing (h). 
 
 The claim of the United States to the territory between the 172. 
 Rocky Mountains and the Pacific Ocean, and between the thiTunited 
 42nd degree and 54th degrees and 40 minutes of north lati- States to 
 tude, is rested by them upon the following grounds : territory. 
 
 1. The first discovery of the mouth of the river Columbia 
 by Captain Gray, of Boston, in 1792 ; the first discovery of 
 the sources of that river, and the exploration of its course to 
 the sea, by Captains Lewis and Clarke, in 1805 6 ; and the 
 establishment of the first posts and settlements in the terri- 
 tory in question by citizens of the United States. 
 
 2. The virtual recognition by the British government of 
 the title of the United States in the restitution of the settle- 
 ment of Astoria or Fort George, at the mouth of the Columbia 
 River, which had been captured by the British during the late 
 war between the two countries, and which was restored in 
 virtue of the 1st article of the treaty of Ghent, 1814, stipulat- 
 ing that " all territory, places, and possessions whatever, 
 taken by either party from the other during the war," &c., 
 
 (h) Mr. Forsyth's letter to Mr. Dallas, Nov. 3, 1837. Congress Docu- 
 ments, Sess. 1S38 9, vol. i. p. 36. Greenliow, pp. 361-363.
 
 232 HIGHTS OF PROPERTY. 
 
 " shall be restored without delay." This restitution was 
 made, without any reservation or exception whatsoever, com- 
 municated at the time to the American government. 
 
 3. The acquisition by the United States of all the titles of 
 Spain, which titles were derived from the discovery of the 
 coasts of the region in question, by Spanish subjects, before 
 they had been seen by the people of any other civilized nation. 
 By the 3rd article of the treaty of 1819, between the United 
 States and Spain, the boundaiy line between the two coun- 
 tries, west of the Mississippi, was established from the mouth 
 of the river Sabine, to certain points on the Red River and 
 the Arkansas, and running along the parallel of 42 degrees 
 north of the South Sea ; his Catholic Majesty ceding to the 
 United States " all his rights, claims, and pretensions, to any 
 territories east and north of the said line ; and " renouncing 
 " for himself, his heirs and successors, all claim to the said 
 territories forever." The boundary thus agreed on with 
 Spain was confirmed by the treaty of 1828, between the 
 United States and Mexico, which had, in the meantime, 
 become independent of Spain. 
 
 4. Upon the ground of contiguity, which should give to the 
 United States a stronger right to those territories than could 
 be advanced by any other power. "If," said Mr. Gallatin, 
 " a few trading factories on the shores of Hudson's Bay have 
 been considered by Great Britain as giving an exclusive right 
 of occupancy as far as the Rocky Mountains ; if the infant 
 settlements on the more southern Atlantic shores justified a 
 claim thence to the South Seas, and which was actually 
 enforced to the Mississippi ; that of the millions of American 
 citizens already within reach of those seas, cannot consistently 
 be rejected. It will not be denied that the extent of con- 
 tiguous country to which an actual settlement gives a prior 
 right, must depend, in a considerable degree, on the magni- 
 tude and population of that settlement, and on the facility 
 with which the vacant adjacent land may, within a short time, 
 be occupied, settled, and cultivated by such population, com- 
 pared with the probability of its being occupied and settled 
 from any other quarter. This doctrine was admitted to its 
 fullest extent by Great Britain, as appeared by all her charters, 
 extending from the Atlantic to the Pacific, given to colonies
 
 RIGHTS OF PROPERTY. 233 
 
 established then only on the borders of the Atlantic. How 
 much more natural and stronger the claim, when made by a 
 nation whose population extended to the central parts of the 
 continent, and whose dominions were by all acknowledged to 
 extend to the Rocky Mountains." 
 
 The exclusive claim of the United States is opposed by 173. 
 Great Britain on the following grounds : E^gEnd* 
 
 1. That the Columbia was not discovered by Gray, who had 
 only entered its mouth, discovered four years previously by 
 Lieutenant Meares of the British navy ; and that the explora- 
 tion of the interior borders of the Columbia by Lewis and 
 Clarke could not be considered as confirming the claim of the 
 United States, because, if not before, at least in the same and 
 subsequent years, the British Northwest Company had, by 
 means of their agents, already established their posts on the 
 head waters or main branch of the river. 
 
 2. That the restitution of Astoria, in 1818, was accom- 
 panied by express reservations of the claim of Great Britain to 
 that territory, upon which the American settlement must be 
 considered an encroachment. 
 
 3. That the titles to the territory in question, derived by 
 the United States from Spain through the treaty of 1819, 
 amounted to nothing more than the rights secured to Spain 
 equally with Great Britain by the Nootka Sound Conven- 
 tion of 1790 : namely, to settle on any part of those countries, 
 to navigate and fish in their waters, and to trade with the 
 natives. 
 
 4. That the charters granted by British sovereigns to 
 colonies on the Atlantic coasts were nothing more than ces- 
 sions to the grantees of whatever rights the grantor might 
 consider himself to possess, and could not be considered as 
 binding the subjects of any other nation, or as part of the law 
 of nations, until they had been confirmed by treaties. 
 
 During the negotiation of 1827, the British plenipotentiaries, 174. 
 Messrs. Huskisson and Addington, presented the pretensions t^of* 
 of their government in respect to the territory in question in 1827 - 
 a statement, of which the following is a summary. 
 
 " Great Britain claims no exclusive sovereignty over any 
 portion of the territory on the Pacific, between the 42nd and 
 the 49th parallels of lattitude. Her present claim, not in
 
 234 RIGHTS OF PROPERTY. 
 
 respect to any part, but to the whole, is limited to a right of 
 joint occupancy, in common with other States, leaving the 
 right of exclusive dominion in abeyance ; and her pretensions 
 tend to the mere maintenance of her own rights, in resistance 
 to the exclusive character of the pretensions of the United 
 States. 
 
 " The rights of Great Britain are recorded and defined in 
 the Convention of 1790. They embrace the right to navigate 
 the waters of those countries, to settle in and over any part of 
 them, and to trade with the inhabitants and occupiers of the 
 same. These rights have been peaceably exercised ever since 
 the date of that Convention ; that is, for a period of nearly 
 forty years. Under that Convention, valuable British in- 
 terests have grown up in those countries. It is admitted that 
 the United States possess the same rights, although they have 
 been exercised by them only in a single instance, and have not, 
 since the year 1813, been exercised at all ; but beyond those 
 rights they possess none. 
 
 " In the interior of the territory in question, the subjects 
 of Great Britain have had, for many years, numerous settle- 
 ments and trading-posts ; several of these posts are on the 
 tributary waters of the Columbia ; several upon the Columbia 
 itself; some to the northward, and others to the southward of 
 that river. And they navigate the Columbia as the sole 
 channel for the conveyance of their produce to the British 
 stations nearest to the sea, and for its shipment thence to 
 Great Britain ; it is also by the Columbia and its tributary 
 streams that these posts and settlements receive their annual 
 supplies from Great Britain. 
 
 " To the interests and establishments which British in- 
 dustry and enterprise have created, Great Britain owes 
 protection ; that protection will be given, both as regards 
 settlement, and freedom of trade and navigation, with every 
 attention not to infringe the co-ordinate rights of the United 
 States ; it being the desire of the British government, so long 
 as the joint occupancy continues, to regulate its own obliga- 
 tions by the same rules which govern the obligations of every 
 other occupying party " (i). 
 
 (i) Congress Documents, 20th Cong, and 1st Sess. No. 199. Greenhow, 
 Proofs and Illustrations, H.
 
 RIGHTS OF PROPERTY. 235 
 
 By the 3rd article of the Convention between the United 175 ; 
 States and Great Britain, in 1818, it was " agreed, that any O f isis. 
 country that may be claimed by either party, on the north- 
 west coast of America, westward of the Stony Mountains, 
 shall, together with its harbours, bays, and creeks, and the 
 navigation of all rivers within the same, be free and open, 
 for the term of ten years from the date of the signature of 
 the present Convention, to the vessels, citizens, and sub- 
 jects of the two powers ; it being well understood that this 
 agreement is not to be construed to the prejudice of any claim 
 which either of the two high contracting parties may have to 
 any part of the said country, nor shall it be taken to affect 
 the claims of any other power or State to any part of the said 
 country ; the only object of the high contracting parties, in 
 that respect, being to prevent disputes and differences amongst 
 themselves." 
 
 In 1827, another Convention was concluded between the 
 two parties, by which it was agreed : 
 
 " Art. 1. All the provisions of the third article of the Con- 
 vention concluded between the United States of America and 
 His Majesty the King of the United Kingdom of Great Britain 
 and Ireland, on the 20th of October, 1818, shall be, and they 
 are hereby further indefinitely extended and continued in 
 force, in the same manner as if all the provisions of the said 
 article were herein specifically recited. 
 
 " Art. 2. It shall be competent, however, to either of the 
 contracting parties, in case either should think fit at any time 
 after the 20th of October, 1828, on giving due notice of twelve 
 months to the other contracting party, to annul and abrogate 
 this Convention ; and it shall, in such case, be accordingly 
 entirely annulled and abrogated, after the expiration of the 
 said term of notice. 
 
 " Art. 3. Nothing contained in this Convention, or in the 
 third article of the Convention of the 20th of October, 1818, 
 hereby continued in force, shall be construed to impair, or in 
 any manner affect, the claims which either of the contracting 
 parties may have to any part of the country westward of the 
 Stony or Rocky Mountains (k). 
 
 (k) Elliot's American Diplomatic Code, vol. i. pp. 282 330.
 
 23G RIGHTS OF PROPERTY. 
 
 176. The notification provided for by the Convention having been 
 1846. J given by the American government, new discussions took 
 place between the two governments, which were terminated by 
 a treaty concluded at Washington, in 1846. By the first 
 article of that treaty it was stipulated, that from the point on 
 the 49th parallel of north latitude, where the boundary laid 
 down in existing treaties and conventions between the United 
 States and Great Britain terminates, the line of boundary 
 shall be continued westward along the said 49th parallel of 
 north latitude to the middle of the channel which separates 
 the continent from Vancouver's Island, and thence southerly 
 through the middle of the said channel, and of Fucas Straits, 
 to the Pacific Ocean ; provided, however, that the navigation 
 of the whole of the said channel and straits, south of the 49th 
 parallel of north latitude, remain free and open to both 
 parties. The second article stipulated for the free navigation 
 of the Columbia Kiver by the Hudson's Bay Company, and 
 the British subjects trading with them, from the 49th degree 
 of north latitude to the ocean. The third article provided that 
 the possessory rights of the Hudson's Bay Company, and of 
 all other British subjects, to the territory south of the parallel 
 of the 49th degree of north latitude, should be respected (I). 
 
 176a. The treaty of 1846 did not, however, completely settle the question. 
 Arbitration It was only terminated in 1872 by being submitted to the award of the 
 before the Emperor of Germany as arbitrator. The 34th Article of the Treaty of 
 German* ^ Washin g ton > 8th of May, 1871, after referring to the Treaty of 1846, and 
 stating that the Commissioners appointed to determine that portion of 
 the boundary which runs southerly through the middle of the channel 
 separating Vancouver's Island from the Continent, and of Fuca Straits 
 to the Pacific Ocean, were unable to agree, provides " that the respective 
 claims of the government of Her Britannic Majesty, and the govern- 
 ment of the United States, shall be submitted to the arbitration and 
 award of His Majesty the Emperor of Germany, who, having regard to 
 the above-mentioned Article of the said Treaty, shall decide thereupon 
 finally, and without appeal, which of these claims is most in accordance 
 with the true interpretation of the Treaty of June 15, 1846" (ra). 
 
 Great Britain contended that the boundary line should be run through 
 the Rosario Strait, while the United States asserted that it should be 
 run through the Canal de Haro. The position of the boundary was a 
 matter of considerable importance, not only in assigning several islands 
 to the successful party, but also in settling the rights of ownership over 
 
 (I) [United States Statutes at Large, vol. ix. pp. 109, 869]. 
 
 (in) [Parl. Papers, N. America, Is'o. 3 (1873), p. 1, see Appendix E].
 
 EIGHTS OF PROPERTY. 237 
 
 the navigable channels between Vancouver's Island and the mainland. 
 The whole question turned upon the interpretation to be put on the 
 existing treaties. Cases and counter cases were submitted by each 
 government to the Emperor of Germany, and on the 21st October, 1872, 
 His Imperial Majesty awarded that " The claim of the government of 
 the United States, viz., that the line of boundary between the dominions 
 of Her Britannic Majesty and the United States should be run through 
 the Canal of Haro, is most in accordance with the true interpretation of 
 the Treaty " of 1846 (n). 
 
 The maritime territory of every State extends to the ports, 177. 
 harbours, bays, mouths of rivers, and adjacent parts of the territorial 
 sea enclosed by headlands belonging to the same State. The J| insdlc - 
 general usage of nations superadds to this extent of territorial 
 jurisdiction a distance of a marine league, or as far as a 
 cannon shot will reach from the shore along all the coasts of 
 the State. Within these limits, its rights of property and 
 territorial jurisdiction are absolute, and exclude those of every 
 other nation (o). 
 
 This statement requires some qualification. It has now been decided I77a. 
 in England by the celebrated case of The Franconia, that the courts of The Case 
 this country have no jurisdiction over a criminal offence committed on * ^ he . 
 board a foreign ship while that ship is on the open sea, but within three 
 miles of the shore of England (p). That the question is one of great 
 difficulty and doubt, is shown by the fact that of the fourteen judges 
 who attended during the arguments in The Franconia, seven pronounced 
 against the jurisdiction, while six claimed it. One who agreed with the 
 majority died before judgment was delivered. This case decides that 
 by English law as at present administered, no jurisdiction is claimed 
 over criminal offences committed beyond low water mark, unless they 
 have taken place on board a British ship, or within waters admitted on 
 all hands to be territorial, such as ports, harbours, bays, &c. But it 
 still remains a doubtful question, whether any portion of the open sea 
 may be claimed as part of the territory, and if so to what extent, and for 
 what purposes, it may be so claimed. 
 
 No precise rule can be derived from the writings of publicists. The I77b. 
 suggestipn of Bynkershoek given in the text, that the sea, as far as a Publicists 
 cannon shot will reach from the shore, should belong to the State it ^ r ^ t 
 
 (n) [Parl. Papers, N. America, No. 9 (1873), p. 3. See Cusling, The Treaty 
 of Washington, p. 203]. 
 
 (o) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 3, x. Bynkershoek, Quasst. 
 Jur. Pub. lib. i. cap. 8. De Dominio Maris, cap. 2. Vattel. liv. i. ch. 23, 
 289 Valin Comm. sur 1'Ordomiance de la Marine, liv.-y. tit. 1. Azuni, 
 Diritto Marit. pt. i. cap. 2, art. 3, 15. Galiani, dei Dover! dei Principi 
 Neutral! in Tempo de Guerra, liv. i. Life and Works of Sir L. Jenkins, 
 
 (p) [ 
 
 p. 80. 
 
 -R. v. Keyn (The Franconia), 2 Ex. D. 63].
 
 238 RIGHTS OF PROPERTY. 
 
 borders, has been adopted by many writers, and has generally been as- 
 sumed to be a distance of tliree miles. It is evident, however, that on 
 this assumption, consistency requires the limit to be increased in pro- 
 portion to the increased range of modern artillery (q). But in the 
 practical application of the rule, in respect of the particular distance, and 
 in the still more essential particular of the character and degree of 
 sovereignty aud dominion to be exercised, a great difference of opinion 
 is to be found. The only point upon which publicists are more or less 
 unanimous, is that some zone of sea (most of them fix it at three miles), 
 Opinion of is for some purposes subject to the dominions of the local State. " Even 
 Cockbum, if entire unaniminity had existed," said Lord Chief Justice Cockburn, 
 " the question would still remain how far the law, as stated by the pub- 
 licists, had received the assent of the civilized nations of the world. . . . 
 The question is not one of theoretical opinion, but of fact, and fortu- 
 nately, the writers upon whose statements we are called upon to act, 
 have afforded us the means of testing those statements by a reference to 
 facts. They refer us to two things, and to these alone treaties and 
 usage. Let us look a little more closely into both. First, then, let us 
 see how the matter stands as regards treaties. It may be asserted, 
 without fear of contradiction, that the rule that the sea surrounding the 
 coast is to be treated as a part of the adjacent territory, so that the 
 State shall have exclusive dominion over it, and that the law of the 
 latter shall be generally applicable to those passing over it in ships of 
 other nations, has never been made the subject-matter of any treaty, or, 
 as matter of acknowledged right, has formed the basis of any treaty, or 
 
 has even been the subject of diplomatic discussion When the treaties 
 
 referred to by text writers are looked at, they will be found to relate to 
 two subjects only, the observance of the rights and obligations of neu- 
 trality, and the exclusive right of fishing." In these respects nations 
 have followed text writers, and adopted three miles as a convenient 
 distance, not as matter of existing right, but as matter of mutual con- 
 cession and convention. Such treaties would be superfluous, if the 
 general assent of nations had given to each a three-mile belt of the sea 
 surrounding its shores. As regards usage, "the only usage found to 
 exist, is such as is connected with navigation, or with revenue, local 
 fisheries, or neutrality, and it is to these alone that the usage relied on 
 is confined." His Lordship comes to the conclusion that " it may not 
 be too much to say that, independently of treaty, the three-mile belt of 
 sea might at this day be taken as belonging for these purposes, to the 
 local State," and that "a nation which should now deal with this portion 
 of the sea as its own, so as to make foreigners within it subject to its 
 law, for the prevention and punishment of offences, would not be con- 
 sidered as infringing the rights of other States. But I apprehend that 
 as the ability so to deal with these waters would result, not from any 
 original or inherent right, but from the acquiescence of other States, 
 some outward manifestation of the national will, in the shape of open 
 practice, or municipal legislation, so as to amount, at least constructively, 
 to an occupation of that which was before unappropriated, would be 
 
 (q) [Ortolan, Diplomatic de la Mer. liv. ii. ch. 8. Halleck, ,ch. vi. 13].
 
 RI07ITS OF PROPERTY. 239 
 
 necessary to render tlie foreigner, not previously amenable to our general 
 law, subject to its control " (r). 
 
 It may be that in time States will agree to accord to each other an 177c. 
 exclusive jurisdiction for all purposes over the three-mile belt of sea, Claims to 
 but it seems improbable that this limit will be extended further. Spain "? ore ^ n 
 has, on more than one occasion, put forward a claim to exercise maritime 
 jurisdiction at a distance of two leagues, or six nautical miles from the 
 Spanish coast. Other nations have, however, resisted this claim. In 
 1874 Lord Derby intimated to the Spanish government, that their pre- 
 tensions would not be submitted to by Great Britain, and that any 
 attempt to carry them out would lead to very serious consequences (s). 
 Mr. Fish also stated, on the part of the United States government, "We 
 have always understood and asserted that, pursuant to public law, no 
 nation can rightfully claim jurisdiction at sea beyond a marine league 
 from its coast " (t). 
 
 The term " coasts " includes the natural appendages of the 178. 
 territory which rise out of the water, although these islands 
 
 are not of sufficient firmness to he inhabited or fortified ; but coasts 
 it does not properly comprehend all the shoals which form 
 sunken continuations of the land perpetually covered with 
 water. The rule of law on this subject is terra do minium 
 ubifmitiir armorum vis; and since the introduction of fire- 
 arms, that distance has usually been recognized to be about 
 three miles from the shore. In a case before Sir W. Scott 
 (Lord Stowell) respecting the legality of a capture alleged to 
 be made within the neutral territory of the United States, at 
 the mouth of the river Mississippi, a question arose as to 
 what was 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 was contended that these were not to be considered as any 
 part of the American territory that they were a sort of "no 
 man's land," not of consistency enough to support the pur- 
 poses of life, uninhabited, and resorted to only for shooting 
 and taking bird's nests. It was argued that the line of terri- 
 tory was to be taken only from the Balize, which is a fort 
 raised on made land by the former Spanish possessors. But 
 the learned judge was of a different opinion, and determined 
 that the protection of the territory was to be reckoned from 
 
 (r) [R. v. Kcyn (The Franconia), 2 Ex. D. pp. 202207]. 
 (a) [Ix>rd Derby to Mr. Watson, 25th Dec. 1874 ; U. S. Dip]. Cor. 1875, 
 p. 641]. 
 
 (t) [U. S. Dipl. Cor. 1875, p. 649].
 
 240 RIGHTS OF PROPERTY. 
 
 these islands, and that they are the natural appendages of the 
 coast on which they border, and from which indeed they were 
 formed. Their elements were derived immediately from the 
 territory, and on the principle of alluvium and increment, on 
 which so much is to he found in the hooks of law, Quod vis 
 fluminis de tuo pradio detraxerit, et vicino prtedio attulerit, 
 palam tuum remanet, even if it had been carried over to an 
 adjoining territory. Whether they were composed of earth 
 or solid rock would not vary the right of dominion, for the 
 right of dominion does not depend upon the texture of the 
 soil (u). 
 
 179. The exclusive territorial jurisdiction of the British crown 
 
 Chambers!* over the enclosed parts of the sea along the coasts of the 
 island of Great Britain has immemorially extended to those 
 bays called the King's Chambers; i.e., portions of the sea 
 cut off by lines drawn from one promontory to another. A 
 similar jurisdiction is also asserted by the United States over 
 the Delaware Bay and other bays and estuaries forming por- 
 tions of their territory. It appears from Sir Leoline Jenkins, 
 that both in the reigns of James I. and of Charles II. the 
 security of British commerce was provided for by express 
 prohibitions against the roving or hovering of foreign ships of 
 war so near the neutral coasts and harbours of Great Britain 
 as to disturb or threaten vessels homeward or outward bound ; 
 and that captures by such foreign cruisers, even of their 
 enemies' vessels, would be restored by the Court of Admiralty 
 if made within the King's Chambers. So also the British 
 " hovering act," passed in 1736 (9 Geo. II. cap. 35), assumes, 
 for certain revenue purposes, a jurisdiction of four leagues 
 from the coasts, by prohibiting foreign goods to be transhipped 
 within that distance without payment of duties. A similar 
 provision is contained in the revenue laws of the United 
 States ; and both these provisions have been declared by 
 judicial authority, in each country, to be consistent with the 
 law and usage of nations (#). 
 
 () The Anna, 5 C.- Rob. 385 (c). 
 
 (x) Life and Works of Sir L. Jenkins, vol. ii. pp. 727, 728, 780. Opinion 
 of the United States Attorney-General on the capture of the British ship 
 Orange in the Delaware Bay, 1793. Waite's American State Papers, vol. i. 
 p. 75. Le Louis, 2 Dods. Ad. 245 ; Church v. Hubbard, 2 Cranch, 187. 
 Vattel, Droit des Gens, liv. i. ch. 22, 281.
 
 RIGHTS OF PROPERTY. 241 
 
 The British " Hovering Act " has been long since repealed. The present 179a. 
 customs legislation makes a distinction as regards the extent of jurisdiction Customs 
 claimed for revenue purposes, between ships belonging to British subjects ^fthe^re- 
 and ships belonging to foreigners. Thus it is now enacted that " If any sent time, 
 ship or boat shall be found or discovered to have been within any port, 
 bay, harbour, river, or creek of the United Kingdom, or the Channel 
 Islands, or within three leagues of the coast thereof, if belonging wholly 
 or in part to British subjects, or having half the persons on board sub- 
 jects of Her Majesty, or within one kague, if not British, having false 
 bulkheads, &c.," she shall be liable to forfeiture, or to be dealt with as 
 the statute directs. The distinction is also maintained for individuals ; 
 thus every person found to have been on board a ship liable to for- 
 feiture, " within three leagues of the coast if a British subject, or within 
 one league if a foreigner," shall forfeit a sum not exceeding ,100 (y). 
 Any officer of customs may go on board any ship after clearance out- 
 wards within one league of the coast of the United Kingdom, and 
 demand the ship's clearance, which the master must produce, or be 
 liable to a penalty of ^500 (z). 
 
 The right of fishing in the waters adjacent to the coasts of 180. 
 any nation, within its territorial limits, belongs exclusively 
 to the subjects of the State. The exercise of this right, 
 between France and Great Britain, was regulated by a Con- 
 vention concluded between these two powers, in 1839 ; by the 
 9th article of which it is provided, that French subjects shall 
 enjoy the exclusive right of fishing along the whole extent 
 of the coasts of France, within the distance of three geo- 
 graphical miles from the shore, at low water-mark, and that 
 British subjects shall enjoy the same exclusive right along 
 the whole extent of the coasts of the British Islands, within 
 the same distance ; it being understood, that upon that part 
 of the coasts of France lying between Cape Carteret and the 
 point of Monga, the exclusive right of French subjects shall 
 only extend to the fishery within the limits mentioned in the 
 first article of the Convention ; it being also understood, that 
 the distance of three miles, limiting the exclusive right of 
 fishing upon the coasts of the two countries, shall be 
 measured, in respect to bays of which the opening shall not 
 exceed ten miles, by a straight line drawn from one cape to 
 the other (a). 
 
 By the 1st article of the Convention of 1818, between the 
 
 (y) [The Customs Consolidation Act, 1876, sect. 179].' 
 (z) [Ibid. sect. 134. As to what is a clearance, see Parl. Papers, 1873, 
 N. America (No. 2), p. 113]. 
 
 (a) Annales Maritimcs rt Coloniales, 1839, Ire Partie, p. 861.
 
 242 RIGHTS OF PROPERTY. 
 
 United States and Great Britain, reciting, that "whereas 
 differences have arisen respecting the liberty claimed by the 
 United States, for the inhabitants thereof to take, dry, and 
 cure fish, on certain coasts, bays, harbours, and creeks, of his 
 Britannic Majesty's dominions in America," it was agreed 
 between the contracting parties, " that the inhabitants of the 
 said United States shall have, forever, in common with the 
 subjects of his Britannic Majesty, the liberty to take fish of 
 every kind on that part of the southern coast of Newfound- 
 land, which extends from Cape Ray to the Rameau Islands ? 
 on the western and northern coast of Newfoundland, from the 
 said Cape Ray to the Quirpon Islands ; on the shores of the 
 Magdalen Islands ; and also on the coasts, bays, harbours, 
 and creeks, from Mount Joly, on the southern coast of Lab- 
 rador, to and through the Straits of Belleisle, and thence 
 northwardly indefinitely along the coast ; without prejudice, 
 however, to any of the exclusive rights of the Hudson Bay 
 Company. And that the American fishermen shall also have 
 liberty, forever, to dry and cure fish in any of the unsettled 
 bays, harbours, and creeks, of the southern part of the coast 
 of Newfoundland, here above described, and of the coast of 
 Labrador ; but so soon as the same, or any portion thereof, 
 shall be settled, it shall not be lawful for the said fishermen 
 to dry or cure fish at such portion so settled, without previous 
 agreement for such purpose with the inhabitants, proprietors, 
 or possessors of the ground. And the United States hereby 
 renounce forever any liberty heretofore enjoyed or claimed by 
 the inhabitants thereof, to take, dry, or cure fish, on or within 
 three marine miles of any of the coasts, bays, creeks, or 
 harbours, of his Britannic Majesty's dominions in America, 
 not included within the above-mentioned limits. Provided, 
 however, that the American fishermen shall be admitted to 
 enter such bays or harbours, for the purpose of shelter, and 
 of repairing damages therein, of purchasing wood, and of ob- 
 taining water, and for no other purpose whatever. But they 
 shall be under such restrictions as may be necessary to 
 prevent their taking, drying, or curing fish therein, or in any 
 other manner whatever abusing the privileges hereby reserved 
 to them (6). 
 
 (b) Elliot's Diplomatic Code, vol. i. p. 281.
 
 RIGHTS OF PROPERTY. 243 
 
 Another treaty was entered into in 1854, by which American fishermen 180a. 
 wore permitted to take fish of every kind, except shell-fish, on the ^ a 4 tyof 
 coasts and shores, and in the bays, harbours, &c., of Canada, New 
 Brunswick, Nova Scotia, and Prince Edward's Island, without being 
 restricted to any distance from the shore. The treaty also allowed 
 British subjects, on the same conditions, to fish on the shores of the 
 United States north of 36 N. lat. This treaty was abrogated, and the 
 matter is now regulated by the Treaty of Washington, 1871. By Art. Treaty of 
 XVIII. of the latter convention, the inhabitants of the United States are Washing- 
 to have, in addition to their rights under the treaty of 1818, in common ton > 1871. 
 with British subjects, for the term of ten years from the date when the 
 treaty came into force ; and further, until after two years' notice of 
 terminating the treaty has been given by either party, the liberty to 
 take fish of every kind, except shell-fish, on the sea-coasts and shores, 
 and in the bays, harbours, and creeks of the Provinces of Quebec, Nova 
 Scotia, and New Brunswick, and the Colony of Prince Edward's Island, 
 and of the several islands thereunto adjacent, without being restricted 
 to any distance from the shore, with permission to land upon the said 
 coasts and shores and islands, and also upon the Magdalen Islands, for 
 the purpose of drying their nets and curing their fish. This only applies 
 to sea-fishing ; salmon and other river-fishing being reserved exclusively 
 for British fishermen. Art. XIX. gives to British subjects corresponding 
 rights, on the same terms, on the eastern sea-coasts and shores of the 
 United States north of the 39th parallel of N. lat. (c). As long as 
 the treaty is in force, fish-oil and fish of all kinds (except fish of the 
 inland lakes, and of the rivers falling into them, and except fish pre- 
 served in oil), being the produce of Canadian or United States fisheries, 
 shall be admitted into each country, respectively, free of duty (d). It 
 being asserted that this treaty gave a greater advantage to American 
 than to British subjects, a Commission was appointed to settle what 
 compensation, if any, should be paid by the United States to England. 
 The Commission has recently awarded that the sum of 1,000,000 shall 
 be so paid by the United States. 
 
 Besides those bays, gulfs, straits, mouths of rivers, and 181. 
 estuaries which are enclosed by capes and headlands belonging ^rtions^f 
 to the territory of the State, a jurisdiction and right of pro- the sea 
 perty over certain other portions of the sea have been claimed ^cimd of 
 by different nations, on the ground of immemorial use. prcscrip- 
 Such, for example, was the sovereignty formerly claimed by 
 the Republic of Venice over the Adriatic. The maritime 
 supremacy claimed by Great Britain over what are called the 
 Narrow Seas has generally been asserted merely by requiring 
 certain honours to the British flag in those seas, which have 
 
 (c) [The Treaty of "Washington, 1871, arts, xviii. xix. See 35 & 36 Viet. 
 c. 45. See also Appendix, E.]. 
 
 (d) [Ibid. art. xxi.] 
 
 it 2
 
 244 RIGHTS OF PROPERTY. 
 
 been rendered or refused by other nations, according to cir- 
 cumstances, but the claim itself has never been sanctioned by 
 general acquiescence (e). 
 
 Straits are passages communicating from one sea to another. 
 If the navigation of the two seas thus connected is free, the 
 navigation of the channel by which they are connected ought 
 also to be free. Even if such strait be bounded on both sides 
 by the territory of the same sovereign, and is at the same 
 time so narrow as to be commanded by cannon shot from 
 both shores, the exclusive territorial jurisdiction of that 
 sovereign over such strait is controlled by the right of other 
 nations to communicate with the seas thus connected. Such 
 right may, however, be modified by special compact, adopting 
 those regulations which are indispensably necessary to the 
 security of the State whose interior waters thus form the 
 channel of communication between different seas, the naviga- 
 tion of which is free to other nations. Thus the passage of 
 the strait may remain free to the private merchant vessels of 
 those nations having a right to navigate the seas it connects, 
 whilst it is shut to all foreign armed ships in time of peace. 
 182. So long as the shores of the Black Sea were exclusively 
 
 Sea tbe^ possessed by Turkey, that sea might with propriety be con- 
 Bosphorus, sidered a mare clausum; and there seems no reason to ques- 
 danelles **' ^ on ^ ne ^g^ f ^ e Ottoman Porte to exclude other nations 
 from navigating the passage which connects it with thie Medi- 
 terranean, both shores of this passage being at the same time 
 portions of the Turkish territory; but since the territoral 
 acquisitions made by Kussia, and the commercial establish- 
 ments formed by her on the shores of the Euxine, both 
 that empire and the other maritime powers have become 
 entitled to participate in the commerce of the Black Sea, and 
 consequently to the free navigation of the Dardanelles and 
 the Bosphorus. This right was expressly recognized by the 
 seventh article of the Treaty of Adrianople, concluded in 1829, 
 between Russia and the Porte, both as to Russian vessels and 
 those of other European States in amity with Turkey (/). 
 
 (e) Vattel, Droit des Gens, liv. i. ch. 23, 289. Martens, Precis du Droit 
 des Gens Moderne de 1'Europe, liv. ii. ch. 1, 42. Edinburgh Review, vol. xi. 
 art. 1, pp. 1719. Wheaton's Hist. Law of Nations, pp. 154157. 
 Kliiber, 132. 
 
 (/) Martens, Nouveau Recueil, torn. viii. p. 143.
 
 RIGHTS OF PROPERTY. 245 
 
 The right of foreign vessels to navigate the interior waters 
 of Turkey, which connect the Black Sea with the Mediter- 
 ranean, does not extend to ships of war. The ancient rule 
 of the Ottoman Empire, established for its own security, by 
 which the entry of foreign vessels of war into the canal of 
 Constantinople, including the Strait of the Dardanelles and 
 that of the Black Sea, has been at all times prohibited, was 
 expressly recognized by the treaty concluded at London the 
 13th July, 1841, between the five great European Powers and 
 the Ottoman Porte. 
 
 By the 1st article of this treaty, the Sultan declared his 
 firm resolution to maintain, in future, the principle invariably 
 established as the ancient rule of his empire ; and that so 
 long as the Porte should be at peace, he would admit no 
 foreign vessel of war into the said Straits. The five Powers, 
 on the other hand, engaged to respect this determination 
 of the Sultan, and to conform to the above-mentioned 
 principle. 
 
 By the 2nd article it was provided, that, in declaring the 
 inviolability of this ancient rule of the Ottoman Empire, the 
 Sultan reserved the faculty of granting, as heretofore, firmans 
 allowing the passage to light-armed vessels employed accord- 
 ing to usage, in the service of the diplomatic legations of 
 friendly powers. 
 
 By the 3rd article, the Sultan also reserved the faculty of 
 notifying this treaty to all the powers in amity with the Sub- 
 lime Porte, and of inviting them to accede to it (g). 
 
 The treaty of 1841 was revised by the Treaty of Paris (h), but the * 182a 
 principles contained in the former treaty were re-established with very Treaty of 
 slight changes. The Sultan, however, agreed to permit the passage of Paris, 
 light ships of war, which the contracting parties were authorized to 1856. 
 station at the mouths of the Danube, in order to secure the execution 
 of the regulations relative to the liberty of that river (i). The Treaty 
 of Paris provided for the neutralization of the Black Sea, by ex- 
 cluding from it ships of war of every flag. Kussia and Turkey also 
 agreed not to establish any military- maritime arsenals on its coasts (k). 
 
 These latter provisions were, however, abrogated in 1871, and a ~ 
 declaration was then made by the Powers that " the principle of the O f jg^-j 101 
 
 (g) Wheaton's Hist. Law of Nations, pp. 583585. 
 (ft) [Art. x. Hertslet, Map of Europe by Treaty, vol. ii. p. 1255]. 
 (<) [Convention of 30th March, 1856, art. iii. Ibid. p. 1268]. 
 (k) [Arts. xi. xiii. See these treaties in Appendix F.J,
 
 246 
 
 RIGHTS OF PROPERTY. 
 
 183. 
 
 Danish 
 sovereignty 
 over the 
 Sound and 
 the Belts. 
 
 closing of the Straits, such as it has been established, is maintained," 
 but that power should be given to the Sultan " to open the Straits in 
 time of peace to the vessels of war of friendly and allied Powers, in case 
 the Sublime Porte should judge it necessary in order to secure the 
 execution of the stipulations of the Treaty of Paris, 1856 " (I). The 
 abrogation of the article in the Treaty of Paris preventing the building 
 of arsenals, also gave both Turkey and Eussia the power of forming 
 such establishments on the coasts of the Black Sea. Article III. of this 
 convention declares that " The Black Sea remains open, as heretofore, 
 to the mercantile marine of all nations." 
 
 The supremacy asserted by the King of Denmark over the 
 Sound and the two Belts which form the outlet of the Baltic 
 Sea into the ocean, is rested by the Danish public jurists 
 upon immemorial prescription, sanctioned by a long succession 
 of treaties with other powers. According to these writers, the 
 Danish claim of sovereignty has been exercised from the 
 earliest times beneficially for the protection of commerce 
 against pirates and other enemies by means of guard-ships, 
 and against the perils of the sea by the establishment of lights 
 and land-marks. The Danes continued for several centuries 
 masters of the coasts on both sides of the Sound, the pro- 
 vince of Scania not having been ceded to Sweden until the 
 treaty of Koeskild in 1658, confirmed by that of 1660, in 
 which it was stipulated that Sweden should never lay claim to 
 the Sound tolls in consequence of the cession, but should 
 content herself with a compensation for keeping up the light- 
 houses on the coast of Scania. The exclusive right of Den- 
 mark was recognized as early as 1368, by a treaty with the 
 Hanseatic republics, and by that of 1490, with Henry VII. of 
 England, which forbids English vessels from passing the 
 Great Belt as well as the Sound, unless in case of unavoidable 
 necessity ; in which case they were to pay the same duties at 
 Wyborg as if they had passed the Sound at Elsinore. The 
 treaty concluded at Spire, in 1544, with the Emperor 
 Charles V., which has commonly been referred to as the 
 origin, or at least the first recognition, of the Danish claim to 
 the Sound tolls, merely stipulates, in general terms, that the 
 merchants of the Low Countries frequenting the ports of Den- 
 mark should pay the same duties as formerly. 
 
 (I) [Art. ii. of Convention of 13th March, 1871. Ibid. vol. iii. p. 1921].
 
 EIGHTS OF PROPERTY. 247 
 
 The treaty concluded at Christianople, in 1645, between 
 Denmark and the United provinces of the Netherlands, is the 
 earliest convention with any foreign power by which the 
 amount of duties to be levied on the passage of the Sound 
 and Belts was definitely ascertained. A tariff of specific 
 duties on certain articles therein enumerated was annexed to 
 this treaty, and it was stipulated that " goods not mentioned 
 in the list should pay, according to mercantile usage, and 
 what has been practised from ancient times." 
 
 A treaty was concluded between the two countries at Copen- 
 hagen, in 1701, by which the obscurity in that of Chris- 
 tianople as to the non-specified articles, was meant to be 
 cleared up. By the third article of the new treaty it was 
 declared, that as to the goods not specified in the former 
 treaty, " the Sound duties are to be paid according to their 
 value ; that is, they are to be valued according to the place 
 from whence they come, and one per centum of their value to 
 be paid. 
 
 These two treaties of 1645 and 1701, are constantly 
 referred to in all subsequent treaties, as furnishing the 
 standard by which the rates of these duties are to be measured 
 as to privileged nations. Those not privileged, pay according 
 to a more ancient tariff for the specified articles, and one and 
 a quarter per centum on unspecified articles (m). 
 
 By the arrangement concluded at London and Elsinore, in 184. 
 1841, between Denmark and Great Britain, the tariff of duties O f jg 41 
 levied on the passage of the Sound and Belts was revised, the 
 duties on non-enumerated articles were made specific, and 
 others reduced in amount, whilst some of the abuses which 
 had crept into the manner of levying the duties in general 
 were corrected. The benefit of this arrangement, which is to 
 subsist for the term of ten years, has been extended to all 
 other nations privileged by treaty (n). 
 
 The rights relating to the navigation of these Straits have now been I84a. 
 
 permanently settled. In 1857 a treaty was entered into by Denmark Abolition 
 
 with Great Britain, Austria, Belgium, France, Hanover, Mecklenburg- * *" 
 
 Schwerin, Oldenburg, the Netherlands, Prussia, Eussia, Sweden and D ^ e g 
 
 (m) Schlegel, Staats-Recht des Konigreich Danemark, 1 Th. kap. 7, 27 
 29. Wheaton, Hist. Law of Nations, pp. 158161. 
 
 (?i) Scherer, der Sundzoll, seine Geschichte, sein jetziger Bestand uml 
 seine Staatsrechtlich politische Losung, Beilage Nr. 8 9.
 
 248 RIGHTS OF PROPERTY. 
 
 Norway, aad the Hanse Towns, by which the King of Denmark agreed 
 (Article I) not to levy any dues or charges upon any ships belonging to 
 any of the contracting States that passed through the Belts or the 
 Sound, " whether they simply traverse Danish waters, or whether they 
 may be obliged by casualties, or by commercial operations, to anchor or 
 lie to therein. No vessel whatever shall henceforward be subjected 
 under any pretext, to any detention or impediment whatever, in the 
 passage of the Sound or of the Belts ; but His Majesty the King of 
 Denmark expressly reserves to himself the right of regulating by special 
 arrangements, not involving visit or detention, the treatment in regard to 
 duties and customs, of vessels belonging to powers which are not parties 
 to the present treaty." By Article II. Denmark was to preserve and 
 maintain all existing lighthouses, buoys, &c. , and to change or set up such 
 new ones as might become necessary. Pilotage was to be optional, and 
 pilotage charges the same as for Danish vessels. A fixed rate of transit 
 duties on goods was to be established, not exceeding 16 skillings Danish 
 per 500 Ibs. Danish. As compensation, the contracting parties engaged, 
 by Article IV., to pay a total sum of 30,476,325 rigs-dollars to Den- 
 mark, the sum being assessed in certain proportions among the con- 
 tracting parties, each party being responsible only for the share placed 
 to its own charge. Separate treaties to the same effect were signed by 
 Denmark with the United States and with Sardinia in 1857, with 
 Portugal and the Two Sicilies in 1858, with Turkey in 1859, and with 
 Spain in 1860 (o). 
 
 185. The Baltic Sea is considered by the maritime powers bor- 
 ther the 6 " dering on its coasts as mare clausum against the exercise of 
 Baltic Sea hostilities upon its waters by other States, whilst the Baltic 
 Xmim? powers are at peace. This principle was proclaimed in the 
 treaties of armed neutrality in 1780 and 1800, and by the 
 treaty of 1794, between Denmark and Sweden, guaranteeing 
 the tranquillity of that sea. In the Russian declaration of 
 war against Great Britain of 1807, the inviolability of that 
 sea and the reciprocal guarantees of the powers that border 
 upon it (guarantees said to have been contracted with the 
 knowledge of the British government) were stated as aggrava- 
 tions of the British proceedings in entering the Sound and 
 attacking the Danish capital in that year. In the British 
 answer to this declaration it was denied that Great Britain 
 had at any time acquiesced in the principles upon which the 
 inviolability of the Baltic is maintained ; however she might, 
 at particular periods, have forborne, for special reasons influ- 
 encing her conduct at the time, to act in contradiction to 
 
 (o) [See Hertslet, Map of Europe by Treaty, vol. ii. p. 1301. State Papers, 
 vol. xlvii. p. 24].
 
 EIGHTS OF PROPERTY. 249 
 
 them. Such forbearance never could h&ve applied but to a 
 state of peace and real neutrality in the north ; and she could 
 not be expected to recur to it after France had been suffered, 
 by the conquest of Prussia, to establish herself in full sove- 
 reignty along the whole coast, from Dantzic to Lubeck (p). 
 
 The controversy, how far the open sea or main ocean , 186, 
 beyond the immediate vicinity of the coasts, may be appro- versy re . 
 priated by one nation to the exclusion of others, which once spectmgthe 
 
 " dominion 
 
 exercised the pens of the ablest and most learned European O f the seas, 
 jurists, can hardly be considered open at this day. Grotius, 
 in his treatise on the Law of Peace and War, hardly admits 
 more than the possibility of appropriating the waters imme- 
 diately contiguous, though he adduces a number of quotations 
 from ancient authors, showing that a broader pretension has 
 been sometimes sanctioned by usage and opinion. But he 
 never intimates that anything more than a limited portion 
 could be thus claimed ; and he uniformly speaks of "pars" or 
 " portus maris" always confining his view to the effect of the 
 neighbouring land in giving a jurisdiction and property of this 
 sort (q). He had previously taken the lead in maintaining 
 the common right of mankind to the free navigation, com- 
 merce, and fisheries of the Atlantic and Pacific Oceans, 
 against the exclusive claims of Spain and Portugal, founded 
 on the right of previous discovery, confirmed by possession 
 and the papal grants. The treatise De Mare Libero was pub- 
 lished in 1609. The claim of sovereignty asserted by the 
 kings of England over the British seas was supported by 
 Albericus Gentilis in his Advocatio Hispanica in 1613. In 
 1635, Selden published his Mare Clausum, in which the 
 general principles maintained by Grotius are called in ques- 
 tion, and the claim of England more fully vindicated than by 
 Gentilis. The first book of Selden's celebrated treatise is 
 devoted to the proposition that the sea may be made property, 
 which he attempts to show, not by reasoning, but by collect- 
 ing a multitude of quotations from ancient authors, in the 
 style of Grotius, but with much less selection. He nowhere 
 grapples with the arguments by which such a vague and ex- 
 tensive dominion is shown to be repugnant to the law of 
 
 (p) Annual Register, vol. xlix. State Papers, p. 773. 
 (q) De Jur. Bel. ac Pac. lib. ii. cap. 3, 813.
 
 250 RIGHTS OF PROPERTY. 
 
 nations. And in the second part, which indeed is the main 
 object of his work, he has recourse only to proofs ^ of usage 
 and of positive compact, in order to show that Great Britain 
 is entitled to the sovereignty of what are called the Narrow 
 Seas. Father Paul Sarpi, the celebrated historian of the 
 Council of Trent, also wrote a vindication of the claim of the 
 Republic of Venice to the sovereignty of the Adriatic (r). 
 Bynkershoek examined the general question, in the earliest of 
 his published works, with the vigour and acumen which dis- 
 tinguish all his writings. He admits that certain portions of 
 the sea may be susceptible of exclusive dominion, though he 
 denies the claim of the English crown to the British seas on 
 the ground of the want of uninterrupted possession. He 
 asserts that there was no instance, at the time when he 
 wrote, in which the sea was subject to any particular sove- 
 reign, where the surrounding territory did not also belong to 
 him (s). Puffendorf lays it down, that in a narrow sea the 
 dominion belongs to the sovereigns of the surrounding land, 
 and is distributed, where there are several such sovereigns, 
 according to the rules applicable to neighbouring proprietors 
 on a lake or river, supposing no compact has been made, " as 
 is pretended," he says, " by Great Britain ;" but he expresses 
 himself with a sort of indignation at the idea that the main 
 ocean can ever be appropriated (t). The authority of Vattel 
 would be full and explicit to the same purpose, were it not 
 weakened by the concession, that though the exclusive right 
 of navigation or fishery in the sea cannot be claimed by one 
 nation on the ground of immemorial use, nor lost to others by 
 non-user, on the principle of prescription, yet it may be thus 
 
 (r) Paolo Sarpi, Del Dominio del Mare Adriatico e sui Reggioni per 
 Jus Belli della Serenissima Rep. di Venezia, Venet. 1676, 12. 
 
 (s) De Dominio Maris, Opera Minora, Dissert. V., first published in 1702. 
 
 "Nihil addo, quam sententiae nostrae hauc conjectionem : Oceanus, qua, 
 patet, totus imperio subjici non potest ; pars potest, possunt et maria mediter- 
 ranea, quotquot sunt, omnia. Nullum tamen mare mediterraneum, neque 
 ulla pars Oceani ditione alicujus Principis tenetur, nisi qua in continentis sit 
 imperio. Pronunciamus MARE LIBERUM, quod non possidetur vel universum 
 possideri nequit, CLAUSUM, quod post justam occupationem navi un& pluri- 
 busve olim possessum fuit, et, si est in fatis, possidebitur posthac, nullum 
 equidem nunc agnoscimus subditum, cum non sufficiat id affectasse, quin vel 
 aliquando occupasse et possedisse, nisi etiamnum duret possessio, quae 
 gentium hodie est nullibi; ita libertatem et imperium, quae haud facile 
 miscentur, una sede locamus." Ib. cap. vii. ad finem. 
 
 (t) De Jure Naturae et Gentium, lib. iv. cap. 5, 7.
 
 RIGHTS OF PROPERTY. 251 
 
 established where the non-user assumes the nature of a con- 
 sent or tacit agreement, and thus becomes a title in favour of 
 one nation against another (M). 
 
 On reviewing this celebrated controversy it may be affirmed, 187. 
 that if those public jurists who have asserted the exclusive t j ie con tro- 
 right of property in any particular nation over portions of the vers y- 
 sea, have failed in assigning sufficient grounds for such a 
 claim, so also the arguments alleged by their opponents for 
 the contrary opinion must often appear vague, futile, and in- 
 conclusive. There are only two decisive reasons applicable to 
 the question. The first is physical and material, which alone 
 would be sufficient; but when coupled with the second reason, 
 which is purely moral, will be found conclusive of the whole 
 controversy. 
 
 I. Those things which are originally the common property 
 of all mankind, can only become the exclusive property of a 
 particular individual or society of men, by means of posses- 
 sion. In order to establish the claim of a particular nation to 
 a right of property in the sea, that nation must obtain and 
 keep possession of it, which is impossible. 
 
 II. In the second place, the sea is an element which 
 belongs equally to all men like the air. No nation, then, has 
 the right to appropriate it, even though it might be physi- 
 cally possible to do so. 
 
 It is thus demonstrated, that the sea cannot become the 
 exclusive property of any nation. And, consequently, the use 
 of the sea, for these purposes, remains open and common to 
 all mankind (x). 
 
 We have already seen that, by the generally approved usage 
 of nations, which forms the basis of international law, the 
 maritime territory of every State extends : 
 
 1st. To the ports, harbours, bays, mouths of rivers, and 
 adjacent parts of the sea inclosed by headlands, belonging to 
 the same State. 
 
 2ndly. To the distance of a marine league, or as far as a 
 
 (u) Droit des Gens, liv. i. ch. 23, 279-286. As to the- maritime police 
 which may be exercised by any particular nation, on the high seas, for the 
 punishment of offences committed on board its own vessels, or the suppression 
 of piracy and the African slave trade, vide supra, pt. ii. ch. ii. 106, 122. 
 
 (a;) Ortolan, Regies Internationales et Diplomatic de la Mer. torn. i. 
 
 mi 1 9n 1 OR
 
 252 RIGHTS OF PROPERTY. 
 
 cannon- shot will reach from the shore, along all the coasts of 
 the State. 
 
 3rdly. To the straits and sounds, bounded on both sides of 
 the territory of the same State, so narrow as to be commanded 
 by cannot- shot from both shores, and communicating from one 
 sea to another (y). 
 
 Ports ^e reasons which forbid the assertion of an exclusive pro- 
 
 mouths of prietary right to the sea in general, will be found inapplicable 
 to the particular portions of that element included in the 
 above designations. 
 
 1. Thus, in respect to those portions of the sea which form 
 the ports, harbours, bays, and mouths of rivers of any State 
 where the tide ebbs and flows, its exclusive right of property, 
 as well as sovereignty, in these waters, may well be main- 
 tained, consistently with both the reasons above mentioned, 
 as applicable to the sea in general. The State possessing the 
 adjacent territory, by which these waters are partially sur- 
 rounded and inclosed, has that physical power of constantly 
 acting upon them, and, at the same time, of excluding, at 
 its pleasure, the action of any other State or person, which, 
 as we have already seen, constitutes possession. These waters 
 cannot be considered as having been intended by the Creator 
 for the common use of all mankind, any more than the ad- 
 jacent land, which has already been appropriated by a par- 
 ticular people. Neither the material nor the moral obstacle, 
 to the exercise of the exclusive rights of property and 
 dominion, exists in this case. Consequently, the State, 
 within whose territorial limits these waters are included, has 
 the right of excluding every other nation from their use. The 
 exercise of this right may be modified by compact, express 
 or implied ; but its existence is founded upon the mutual 
 independence of nations, which entitles every State to judge 
 for itself as to the manner in which the right is to be exer- 
 cised, subject to the equal reciprocal rights of all other States 
 to establish similar regulations, in respect to their own 
 waters (2). 
 
 189. 2. It may, perhaps, be thought that these considerations do 
 not a pply> witn ^ e same force, to those portions of the sea 
 
 (y) Vide stipra, 174. 
 
 (z) Vide supra, pt. ii. ch. 2, 177181.
 
 RIGHTS OF PROPERTY. 253 
 
 which wash the coasts of any particular State, within the dis- 
 tance of a marine league, or as far as a cannon-shot will reach 
 from the shore. The physical power of exercising an exclusive 
 property and jurisdiction, and of excluding the action of other 
 nations within these limits, exists to a certain degree ; but the 
 moral power may, perhaps, seem to extend no further than to 
 exclude the action of other nations to the injury of the State 
 by which this right is claimed. It is upon this ground that is 
 founded the acknowledged immunity of a neutral State from 
 the exercise of acts of hostility, by one belligerent power 
 against another, within those limits. This claim has, how- 
 ever, been sometimes extended to exclude other nations from 
 the innocent use of the waters washing the shores of a par- 
 ticular State, in peace and in war ; as, for example, for the 
 purpose of participating in the fishery, which is generally 
 appropriated to the subjects of the State within that distance 
 of the coasts. This exclusive claim is sanctioned both by 
 usage and convention, and must be considered as forming a 
 part of the positive law of nations (a) . 
 
 3. As to straits and sounds, bounded on both sides by the 190. 
 territory of the same State, so narrow as to be commanded by g* 1 ^ and 
 cannon-shot from both shores, and communicating from one 
 sea to another, we have already seen that the territorial sove- 
 reignty may be limited, by the right of other nations to navi- 
 gate the seas thus connected. The physical power which the 
 State, bordering on both sides the sound or strait, has of 
 appropriating its waters, and of excluding other nations from 
 their use, is here encountered by the moral obstacle arising 
 from the right of other nations to communicate with each 
 other. If the Straits of Gibraltar, for example, were bounded 
 on both sides by the possessions of the same nation, and if 
 they were sufficiently narrow to be commanded by cannon-shot 
 from both shores, this passage would not be the less freely 
 open to all nations ; since the navigation, both of the 
 Atlantic Ocean and the Mediterranean Sea, is free to all. 
 Thus it has already been stated that the navigation of the 
 
 (a) Martens, Precis du Droit des Gens Moderne de 1'Europe, 153. " Mais 
 si, loin de s'en emparer, il a une fois reconnu le droit commun des autres 
 peuples d'y venir pecher, il ne peut plus les en exclure ; il a laisse cette peclie 
 dans sa communion primitive, au moins a 1'egard de ceux qui sont en pos- 
 session dVn profiter." Vattel, Droit des Gens, liv. i. c. 23, 287.
 
 254 RIGHTS OF PROPERTY. 
 
 Dardanelles and the Bosphorus, by which the Mediterranean 
 and Black Seas are connected together, is free to all 
 nations, subject to those regulations which are indispensably 
 necessary for the security of the Ottoman Empire. In the 
 negotiations which preceded the signature of the treaty of 
 intervention, of the 15th of July, 1840, it was proposed, on 
 the part of Eussia, that an article should be inserted in the 
 treaty, recognizing the permanent rule of the Ottoman 
 Empire, that, whilst that empire is at peace, the Straits, 
 both of the Bosphorus and the Dardanelles, are considered as 
 shut against the ships of war of all nations. To this pro- 
 position it was replied, on the part of the British govern- 
 ment, that its opinion respecting the navigation of these 
 Straits by the ships of war of foreign nations rested upon 
 a general and fundamental principle of international law. 
 Every State is considered as having territorial jurisdiction 
 over the sea which washes its shores, as far as three miles 
 from low-water mark; and, consequently, any strait which 
 is bounded on both sides by the territory of the same sove- 
 reign, and which is not more than six miles wide, lies within 
 the territorial jurisdiction of that sovereign. But the Bos- 
 phorus and Dardanelles are bounded on both sides by the 
 territory of the Sultan, and are in most parts less than six 
 miles wide ; consequently his territorial jurisdiction extends 
 over both those Straits, and he has a right to exclude all 
 foreign ships of war from those Straits, if he should think 
 proper so to do. By the Treaty of 1809, Great Britain 
 acknowledged this right on the part of the Sultan, and pro- 
 mised to acquiesce in the enforcement of it ; and it was but 
 just that Eussia should take the same engagement. The 
 British government was of opinion, that the exclusion of all 
 foreign ships of war from the two Straits would be more con- 
 ducive to the maintenance of peace, than an understanding 
 that the Strait in question should be a general thoroughfare, 
 open, at all times, to ships of war of all countries ; but 
 whilst it was willing to acknowledge by treaty, as a general 
 principle and as a standing rule, that the two Straits should 
 be closed for all ships of war, it was of opinion, that if, for a 
 particular emergency, one of those Straits should be open for 
 one party, the other ought, at the same time, to be open for
 
 RIGHTS OF PROPERTY. Zo 
 
 other parties, in order that there should be the same parity 
 between the condition of the two Straits, when open and 
 shut ; and, therefore, the British government would expect 
 that, in that part of the proposed Convention which should 
 allot to each power its appropriate share of the measures of 
 execution, it should be stipulated, that if it should become 
 necessary for a Russian force to enter the Bosphorus, a British 
 force should, at the same time, enter the Dardanelles. 
 
 It was accordingly declared, in the 4th article of the Con- 191. 
 vention, that the co-operation destined to place the Straits of 
 the Dardanelles and the Bosphorus and the Ottoman capital 
 under the temporary safeguard of the contracting parties, 
 against all aggression of Mehemet Ali, should be considered 
 only as a measure of exception, adopted at the express re- 
 quest of the Sultan, and solely for his defence, in the single 
 case above mentioned ; but it was agreed that such measure 
 should not derogate, in any degree, from the ancient rule of 
 the Ottoman Empire, in virtue of which it had, at all times, 
 been prohibited for ships of war of foreign powers to enter 
 those Straits. And the Sultan, on the one hand, declared 
 that, excepting the contingency above mentioned, it was his 
 firm resolution to maintain, in future, this principle invariably 
 established as the ancient rule of his Empire, and, so long as 
 the Porte should be at peace, to admit no foreign ship of war 
 into these Straits ; on the other hand, the four Powers 
 engaged to respect this determination, and to conform to the 
 above-mentioned principle. 
 
 This rule, and the engagement to respect it, as we have 
 already seen, were subsequently incorporated into the Treaty 
 of the 13th July, 1841, between the five great European 
 Powers and the Ottoman Porte ; and as the right of the pri- 
 vate merchant vessels of all nations, in amity with the Porte, 
 to navigate the interior waters of the Empire, which connect 
 the Mediterranean and Black Seas, was recognized by the 
 Treaty of Adrianople, in 1829, between Russia and the Porte; 
 the two principles the one excluding foreign ships of war, 
 and the other admitting foreign merchant vessels to navigate 
 those waters may be considered as permanently incorporated 
 into the public law of Europe (b). 
 
 (b) Wheaton, Hist. Law of Nations, pp. 577583. [See Appendix F.]
 
 256 ll'.'GIITS OF PROPERTY, 
 
 192. The territory of the State includes the lakes, seas, and 
 
 Rivers 
 
 forming rivers, entirely inclosed within its limits. The rivers which 
 territoiy h of flow tlirou gh ^ e territory also form a part of the domain, 
 the State, from their sources to their mouths, or as far as they flow 
 within the territory, including the bays or estuaries formed 
 by their junction with the sea. Where a navigable river 
 forms the boundary of conterminous States, the middle of the 
 channel, or Thalweg, is generally taken as the line of separa- 
 tion between the two States, the presumption of law being 
 that the right of navigation is common to both ; but this pre- 
 sumption may be destroyed by actual proof of prior occupancy 
 and long undisturbed possession, giving to one of the riparian 
 proprietors the exclusive title to the entire river (c). 
 193. Things of which the use is inexhaustible, such as the sea 
 
 innocent an< ^ running water, cannot be so appropriated as to exclude 
 passage on others from using these elements in any manner which does 
 
 rivers flow- 
 
 ing through not occasion a loss or inconvenience to the proprietor. This 
 state!"* is what is called an innocent use. Thus we have seen that 
 the jurisdiction possessed by one nation over sounds, straits, 
 and other arms of the sea, leading through its own territory 
 to that of another, or to other seas common to all nations, 
 does not exclude others from the right of innocent passage 
 through these communications. The same principle is appli- 
 cable to rivers flowing from one State through the territory of 
 another into the sea, or into the territory of a third State. 
 The right of navigating, for commercial purposes, a river 
 which flows through the territories of different States, is com- 
 mon to all the nations inhabiting the different parts of its 
 banks ; but this right of innocent passage being what the 
 text-writers call an imperfect right, its exercise is necessarily 
 modified by the safety and convenience of the State affected 
 by it, and can only be effectually secured by mutual conven- 
 tion regulating the mode of its exercise (d). 
 
 194. It seems that this right draws after it the incidental right 
 rfht to^L f usm g a ^ the means which are necessary to the secure en- 
 
 (c) Vattel, Droit des Gens, liv. i. ch. 22, 266. Martens, Precis du Droit 
 des Gens Moderns de 1' Europe, liv. ii. ch. 1, 39. Hetfter, das Europaische 
 Volkerrecht, 6677. 
 
 (d) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, 1214 ; cap. 3, 712. 
 Vattfil, Droit des Gens, liv. ii. ch. 9, 126-130; ch. 10, 132134. 
 Puflundwf, de Jur. Naturae et Gentium, lib. iii. cap. 3, 36.
 
 RIGHTS OF PROPERTY. 257 
 
 joyment of the principal right itself. Thus the Roman law, 
 which considered navigable rivers as public or common pro- rivers. 
 perty, declared that the right to the use of the shores was 
 incident to that of the water ; and that the right to navigate 
 a river involved the right to moor vessels to its banks, to lade 
 and unlade cargoes, &c. The public jurists apply this prin- 
 ciple of the Roman civil law to the same case between nations, 
 and infer the right to use the adjacent land for these purposes, 
 as means necessary to the attainment of the end for which 
 the free navigation of the water is permitted (e). 
 
 The incidental right, like the principal right itself, is im- 195. 
 perfect in its nature, and the mutual convenience of both rig j^ are 
 parties must be consulted in its exercise. imperfect. 
 
 Those who are interested in the enjoyment of these rights 196. 
 may renounce them entirely, or consent to modify them in tion of ' " 
 such manner as mutual convenience and policy may dictate, these rights 
 A remarkable instance of such a renunciation is found in the 
 Treaty of Westphalia, 1648, confirmed by subsequent treaties, 
 by which the navigation of the river Scheldt was closed to 
 the Belgic provinces, in favour of the Dutch. The forcible 
 opening of this navigation by the French on the occupation 
 of Belgium by the arms of the French Republic, in 1792, in 
 violation of these treaties, was one of the principal ostensible 
 causes of the war between France on one side, and Great 
 Britain and Holland on the other. By the Treaties of Vienna, 
 the Belgic provinces were united to Holland under the same 
 sovereign, and the navigation of the Scheldt was placed on 
 the same footing of freedom with that of the Rhine and other 
 great European rivers. And by the Treaty of 1831, for the 
 separation of Holland from Belgium, the free navigation of 
 the Scheldt was, in like manner, secured, subject to certain 
 duties, to be collected by the Dutch government (/). 
 
 On the 16th July, 1863, a treaty was entered into between Belgium 196a 
 
 and most of the European Powers, by which Belgium agreed to suppress Redemp- 
 
 the tolls on the Scheldt. Holland had renounced her claims to the tolls *'"" ?^ Q 
 
 on the 12th of May of the same year, in consideration of an indemnity i i\ Si 
 
 (e) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, 15. Puffeudorf, de Jur. 
 Naturae et Gentium, lib. iii. cap. 3, 8. Vattel, Droit des Gens, liv. ii. 
 ch. 9, 129. 
 
 (/) Wheaton, Hist. Law of Nations, pp. 282284, 552.
 
 258 
 
 RIGHTS OF PROPERTY. 
 
 197. 
 
 Treaties of 
 
 Vienna 
 
 respecting 
 
 the great 
 
 European 
 
 rivers. 
 
 paid to her by Belgium (g}. The suppression of the tolls was to apply 
 to every flag, and they were never to be re-established. Belgium also 
 agreed to abolish tonnage dues in her ports, and to reduce the pilotage 
 rates previously charged ; but this was only to apply to countries which 
 were parties to the treaty (A). As a compensation, the signatory powers 
 agreed to indemnify Belgium against the claims she had become liable 
 to, under the treaty with Holland, and to pay her a total sum, 
 assessed in certain proportions among the contracting parties (*). 
 
 By the Treaty of Vienna in 1815, the commercial navigation 
 of rivers, which separate different States, or flow through 
 their respective territories, was declared to be entirely free in 
 their whole course, from the point where each river becomes 
 navigable to its mouth ; provided that the regulations relating 
 to the police of the navigation should be observed, which 
 regulations were to be uniform, and as favourable as possible 
 to the commerce of all nations (k). 
 
 By the Annexe xvi. to the final act of the Congress of 
 Vienna, the free navigation of the Rhine is confirmed "hi its 
 whole course, from the point where it becomes navigable to 
 the sea, ascending or descending; " and detailed regulations 
 are provided respecting the navigation of that river, and the 
 Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt, 
 which are declared in like manner to be free from the point 
 where each of these rivers becomes navigable to its mouth. 
 Similar regulations respecting the free navigation of the Elbe 
 were established among the powers interested in the com- 
 merce of that river, by an act signed at Dresden the 12th 
 December, 1821. And the stipulations between the different 
 powers interested in the free navigation of the Vistula and 
 other rivers of ancient Poland contained in the treaty of the 
 3rd May, 1815, between Austria and Russia, and of the same 
 date between Russia and Prussia, to which last Austria sub- 
 sequently acceded, are confirmed by the final act of the Con- 
 gress of Vienna. The same treaty also extends the general 
 principles adopted by the congress relating to the navigation 
 of rivers to that of the Po (I). 
 
 (g) [Hertslet, Map of Europe by Treaty, vol. ii. p. 1532]. 
 (h) [The United States were not a party]. 
 (i) [Hertslet, Map of Europe by Treaty, vol. ii. p. 1550]. 
 (k) [Wheaton, Hist. Law of Nations, pp. 498501. 
 
 (1) Mayer, Corpus Juris Germanici, torn. ii. pp. 224 239, 298. Acte Final, 
 art. 14, 118, 96.
 
 RIGHTS OF PROPERTY. 259 
 
 These principles were applied to the Danube by the Treaty of Paris, 197a. 
 1856 (TO). It was then declarer! that " The navigation of the Danube ^ f a ^ ation 
 cannot be subjected to any impediment or charge not expressly provided j) anu b e . 
 for by the stipulations contained in the following articles ; in conse- 
 quence there shall not be levied any toll founded solely upon the fact of 
 the navigation of the river, nor any duty upon the goods which may be 
 on board of vessels. The regulations of police and of quarantine to be 
 established for the safety of the States separated or traversed by that 
 river, shall be so framed as to facilitate, as much as possible, the passage 
 of vessels. With the exception of such regulations, no obstacle whatever 
 shall be opposed to free navigation." A European commission was then 
 appointed to manage the navigation of the river, and to carry out the 
 works necessary for this purpose (?i). 
 
 lu 1871 the question was again discussed by the powers, and it was 
 declared, in the ensuing treaty, that the works and establishments of 
 every kind created by the European commission, should enjoy the same 
 neutrality which had hitherto protected them. But this arrangement 
 was not to affect the right of Turkey to send, as heretofore, vessels of 
 war into the Danube in its character of territorial power (o). When 
 war broke out between Kussia and Turkey in 1877, the Russians sank 
 hulls, filled with stones, at the Sulina mouth of the river, and placed 
 torpedoes in various parts of its course. They also attempted to close 
 the navigation of all the lower part of the river, but this was relinquished 
 on some of the Powers protesting against it. On the 17th September, 
 1877, the Turkish Admiral (Hobart Pasha), informed the engineer of the 
 Danube commission, that as Russia had used the river for the purposes 
 of war, by sinking ships and laying down torpedoes in it, he must insist 
 on the right of Turkey to avail herself of the same means of offence. He 
 added, however, that this would not be resorted to, except in case of ab- 
 solute necessity. The engineer requested that all operations might be 
 suspended until the Danube commission had been heard (p). Impeding 
 the navigation of the river for belligerent purposes is no doubt an in- 
 fringement of the rights of neutral commerce, but as this was done by 
 one belligerent, it is difficult to deny to the other the right to avail 
 himself of the same means of harassing the enemy. Neither the Treaty 
 of Vienna, nor the Peace of Paris, 1856, contains any express stipulations 
 relating to belligerent operations in rivers. Both refer to impediments 
 to commerce in the way of tolls, &c. In the case of the Rhine it is ex- 
 pressly laid down that in case of war " the collection of customs shall 
 continue uninterrupted, without any obstacle being thrown in the way 
 by either party " (q). But no such clause exists respecting the Danube, 
 and the treaty of 1871 only ensures to the Danube works " the same 
 neutrality which has hitherto protected them" (r). 
 
 The interpretation of the above stipulations respecting the 198. 
 free navigation of the Ehine, gave rise to a controversy be- of^f* 
 
 (w) [Art. xv. Hertslet, Map of Europe by Treaty, vol. ii. p. 12571- Rhln ' 
 
 (n) [Art. xvii.]. (o) [Ibid. vol. iii. p. 1922]. 
 
 (p) [The Times, Oct. 6th, 1877]. 
 
 (<?) [Convention of March, 1815. Hertslet, Map of Europe, vol. i. p. 86]. 
 
 (r) [Art. vii. Hertslet, Map of Europe, vol. iii. p. 1922]. 
 
 s 2
 
 260 RIGHTS OF PROPERTY. 
 
 tween the kingdom of the Netherlands and the other States 
 interested in the commerce of that river. The Dutch govern- 
 ment claimed the exclusive right of regulating and imposing 
 duties upon the trade, within its own territory, at the places 
 where the different branches into which the Rhine divides 
 itself fall into the sea. The expression in the Treaties of 
 Paris and Vienna "jusqu'd la mer," to the sea, was said to 
 be different in its import from the term " dans la mer," into 
 the sea ; and, besides, it was added, if the upper States insist 
 so strictly upon the terms of the treaties, they must be con- 
 tented with the course of the proper Rhine itself. The mass 
 of waters brought down by that river, dividing itself a short 
 distance above Nimeguen, is carried to the sea through three 
 principal channels, the Waal, the Leek, and the Yssel ; the 
 first descending by Gorcum, where it changes its name for 
 that of the Meuse ; the second approaching the sea at Rot- 
 terdam ; and the third, taking a northerly course by Zutphen 
 and Deventer, empties itself into Zuyderzee. None of these 
 channels, however, is called the Rhine ; that name is pre- 
 served to a small stream which leaves the Leek at Wyck, 
 takes its course by the learned retreats of Utrecht and Leyden, 
 gradually dispersing and losing its waters among the sandy 
 downs at Kulwyck. The proper Rhine being thus useless for 
 the purposes of navigation, the Leek was substituted for it by 
 common consent of the powers interested in the question ; 
 and the government of the Netherlands afterwards consented 
 that the Waal, as being better adapted to the purposes of 
 navigation, should be substituted for the Leek. But it was 
 insisted by that government that the Waal terminates at 
 Gorcum, to which the tide ascends, and where, consequently, 
 the Rhine terminates ; all that remains of that branch of the 
 river from Gorcum to Helvoetsluys and the mouth of the 
 Meuse is an arm of the sea, inclosed within the territory of 
 the kingdom, and consequently subject to any regulations 
 which its government may think fit to establish. 
 
 On the other side, it was contended by the powers interested 
 in the navigation of the river, that the stipulations in the 
 Treaty of Paris, in 1814, by which the sovereignty of the 
 House of Orange over Holland was revived, with an accession 
 of territory, and the navigation of the Rhine was, at the
 
 RIGHTS OF PROPERTY. 261 
 
 same time, declared to be free " from the point where it 
 becomes navigable to the sea," were inseparably connected 
 in the intentions of the allied powers who were parties to the 
 treaty. The intentions thus disclosed were afterwards carried 
 into effect by the Congress of Vienna, which determined the 
 union of Belgium to Holland, and confirmed the freedom of 
 the navigation of the Rhine, as a condition annexed to this 
 augmentation of territory which had been accepted by the 
 government of the Netherlands. The right to the free navi- 
 gation of the river, it was said, draws after it, by necessary 
 implication, the innocent use of the different waters which 
 unite it with the sea; and the expression " to the sea" was, 
 in this respect, equivalent to the term " into the sea," since 
 the pretension of the Netherlands to levy unlimited duties 
 upon its principal passage into the sea would render wholly 
 useless to other States the privilege of navigating the river 
 within the Dutch territory (s). 
 
 After a long and tedious negotiation, this question was 199. 
 finally settled by the convention concluded at Mayence, the 
 31st of March, 1831, between all the riparian States of the 
 Pihine, by which the navigation of the river was declared free 
 from the point where it becomes navigable into the sea, (bis in 
 die See,) including its two principal outlets or mouths in the 
 kingdom of the Netherlands, the Leek and the Waal, passing 
 by Rotterdam and Briel through the first-named watercourse, 
 and by Dordrecht and Helvoetsluys through the latter, with 
 the use of the artificial communication by the canal of Voorne 
 with Helvoetsluys. By the terms of this treaty the government 
 of the Netherlands stipulates, in case the passages by the 
 main sea by Briel or Helvoetsluys should at any time become 
 innavigable, through natural or artificial causes, to indicate 
 other watercourses for the navigation and commerce of the 
 riparian States, equal in convenience to those which may be 
 open to the navigation and commerce of its own subjects. 
 The convention also provides minute regulations of police and 
 fixed toll-duties on vessels and merchandise passing through 
 the Netherlands territory to or from the sea, and also by the 
 different ports of the upper riparian States on the Rhine (t). 
 
 (s) Anniiiil Register for 1826, vol. Ixviii. pj>. 259363. 
 (<) Martens, Nouveau KecueiJ, tola. ix. p. 252.
 
 262 RIGHTS OF PROPERTY. 
 
 200. By the Treaty of Peace concluded at Paris in 1763, between 
 of the* 10Q France, Spain, and Great Britain, the province of Canada was 
 Mississippi. ceded to Q re&i Britain by F rance> a nd that of Florida to the 
 same power by Spain, and the boundary between the French 
 and British possessions in North America was ascertained by 
 a line drawn through the middle of the river Mississippi from 
 its source to the Iberville, and from thence through the latter 
 river and the lakes of Maurepas and Pontchartrain to the sea. 
 The right of navigating the Mississippi was at the same time 
 secured to the subjects of Great Britain from its source to 
 the sea, and the passages in and out of its mouth, without 
 being stopped, or visited, or subjected to the payment of any 
 duty whatsoever. The province of Louisiana was soon after- 
 wards ceded by France to Spain ; and by the Treaty of Paris, 
 1783, Florida was retroceded to Spain by Great Britain. The 
 in lependence of the United States was acknowledged, and the 
 right of navigating the Mississippi was secured to the citizens 
 of the United States and the subjects of Great Britain by the 
 separate treaty between these powers. But Spain having 
 become thus possessed of both banks of the Mississippi at its 
 mouth, and a considerable distance above its mouth, claimed 
 its exclusive navigation below the point where the southern 
 boundary of the United States struck the river. This claim 
 was resisted, and the right to participate in the navigation of 
 the river from its source to the sea was insisted on by the 
 United States, under the treaties of 1763 and 1783, as well as 
 by the law of nature and nations. The dispute was termi- 
 nated by the Treaty of San Lorenzo el Real, in 1795, by the 
 4th article of which his Catholic Majesty agreed that the 
 navigation of the Mississippi, in its whole breadth, from its 
 source to the ocean, should be free to the citizens of the 
 United States : and by the 22nd article, they were permitted 
 to deposit their goods at the port of New Orleans, and to 
 export them from thence, without paying any other duty than 
 the hire of the warehouses. The subsequent acquisition of 
 Louisiana and Florida by the United States having included 
 within their territory the whole river from its source to the 
 Gulf of Mexico, and the stipulation in the treaty of 1783, 
 securing to British subjects a right to participate in its navi- 
 gation, not having been renewed by the Treaty of Ghent in
 
 EIGHTS OF PROPERTY. 263 
 
 1814, the right of navigating the Mississippi is now vested 
 exclusively in the United States. 
 
 The right of the United States to participate with Spain 201. 
 in the navigation of the river Mississippi, was rested by the United 
 the American government on the sentiment written in States. 
 deep characters on the heart of man, that the ocean is 
 free to all men, and its rivers to all their inhabitants. 
 This natural right was found to be universally acknow- 
 ledged and protected in all tracts of country, united under 
 the same political society, by laying the navigable rivers 
 open to all their inhabitants. When these rivers enter the 
 limits of another society, if the right of the upper inhabitants 
 to descend the stream was in any case obstructed, it was an 
 act of force by a stronger society against a weaker, condemned 
 by the judgment of mankind. The, then, recent case of the 
 attempt of the Emperor Joseph II. to open the navigation of 
 the Scheldt from , Antwerp to the sea, was considered as a 
 striking proof of the general union of sentiment on this 
 point, as it was believed that Amsterdam had scarcely an 
 advocate out of Holland, ad even there her pretensions were 
 advocated on the ground of treaties, and not of natural right. 
 This sentiment of right in favour of the upper inhabitants, 
 must become stronger in the proportion which their extent of 
 country bears to the lower. The United States held 600,000 
 square miles of inhabitable territory on the Mississippi and 
 its branches, and this river, with its branches, afforded many 
 thousands of miles of navigable waters penetrating this terri- 
 tory in all its parts. The inhabitable territory of Spain below 
 their boundary and bordering on the river, which alone could 
 pretend any fear of being incommoded by their use of the 
 river, was not the thousandth part of that extent. This vast 
 portion of the territory of the United States had no other 
 outlet for its productions, and these productions were of the 
 bulkiest k'nd. And, in truth, their passage down the river 
 might not only be innocent, as to the Spanish subjects on the 
 river, but wjuld not fail to enrich them far beyond their actual 
 condition. The real interests, then, of the inhabitants, upper 
 and lower, concurred in fact with their respective rights. 
 
 If the appeal was to the law of nature and nations, as ex- 202. 
 pressed by writers on the subject, it was agreed by them, that L f eg * 1 view 
 
 claim.
 
 264 RIGHTS OF PROPERTY. 
 
 even if the river, where it passes between Florida and 
 Louisiana, were the exclusive right of Spain, still an innocent 
 passage along it was a natural right in those inhabiting its 
 borders above. It would, indeed, be what those writers call 
 an imperfect right, because the modification of its exercise 
 depends, in a considerable degree, on the conveniency of the 
 nation through which they were to pass. But it was still a 
 right, as real as any other right, however well defined : and 
 were it to be refused, or to be so shackled by regulations not 
 necessary for the peace or safety of the inhabitants, as to 
 render its use impracticable to us, it would then be an injury, 
 of which we should be entitled to demand redress. The right 
 of the upper inhabitants to use this navigation was the 
 counterpart to that of those possessing the shores below, and 
 founded in the same natural relations with the soil and water. 
 And the line at which their respective rights met was to be 
 advanced or withdrawn, so as to equalize the inconveniences 
 resulting to each party from the exercise of the right by the 
 other. This estimate was to be fairly made with a mutual dis- 
 position to make equal sacrifices, and the numbers on each side 
 ought to have their due weight in the estimate. Spain held so 
 very small a tract of habitable land on either side below our 
 boundary, that it might in fact be considered as a strait in 
 the sea ; for though it was eighty leagues from our southern 
 boundary to the mouth of the river, yet it was only here and 
 there in spots and slips that the land rises above the level of 
 the water in times of inundation. There were then, and ever 
 must be, so few inhabitants on her part of the river, that the 
 freest use of its navigation might be admitted to us without 
 their annoyance (u). 
 
 It was essential to the interests of both parties that the 
 navigation of the river should be free to both, on the footing 
 on which it was defined by the Treaty of Paris, viz., through 
 its whole breadth. The channel of the Mississippi was re- 
 markably winding, crossing and recrossing perpetually from 
 one side to the other of the general bed of the river. Within 
 the elbows thus made by the channel, there was generally an 
 
 (u) The authorities referred to on this head were the following : Grotius, 
 de Jur. Bel. ac Pac. lib. ii. cap. 2, 1113 ; c. 3, 712. Puffendorf, 
 lib. iii. cap. 3, 36. Wolti's Inst. 310-312. Vattel, liv. i. 292 ; 
 liv. ii. 1-23139.
 
 RIGHTS OF PROPERTY. 265 
 
 eddy setting upwards, and it was by taking advantage of these 
 eddies, and constantly crossing from one to another of them, 
 that boats were enabled to ascend the river. Without this 
 right the navigation of the whole river would be impracticable 
 both to the Americans and Spaniards. 
 
 It was a principle that the right to a thing gives a right to 
 the means without which it could not be used, that is to say, 
 that the means follow the end. Thus a right to navigate a 
 river draws to it a right to moor vessels to its shores, to land 
 on them in cases of distress, or for other necessary pur- 
 poses, &c. This principle was founded in natural reason, was 
 evidenced by the common sense of mankind, and declared by 
 the writers before quoted. 
 
 The Roman law, which, like other municipal laws, placed 
 the navigation of their rivers on the footing of nature, as to 
 their own citizens, by declaring them public, declared also 
 that the right to the use of the shores was incident to that of 
 the water (x). The laws of every country probably did the 
 same. This must have been so understood between France 
 and Great Britain at the Treaty of Paris, where a right was 
 ceded to British subjects to navigate the whole river, and ex- 
 pressly that part between the island of New Orleans and the 
 western bank, without stipulating a word about the use of the 
 shores, though both of them belonged then to France, and 
 were to belong immediately to Spain. Had not the use of the 
 shores been considered as incident to that of the water, it 
 would have been expressly stipulated, since its necessity was 
 too obvious to have escaped either party. Accordingly all 
 British subjects used the shores habitually for the purposes 
 necessary to the navigation of the river ; and when a Spanish 
 governor undertook at one time to forbid this, and even 
 cut loose the vessels fastened to the shores, a British vessel 
 went immediately, moored itself opposite the town of New 
 Orleans, and set out guards with orders to fire on such as 
 might attempt to disturb her moorings. The governor ac- 
 quiesced, the right was constantly exercised afterwards, and 
 no interruption ever offered. 
 
 This incidental right extends even beyond the shores, 
 when circumstances render it necessary to the exercise of the 
 (x) lust. liv. ii. t. 1, 15.
 
 266 
 
 RIGHTS OF PROPERTY. 
 
 Navigation 
 of the St. 
 Lawrence. 
 
 204. 
 
 The St. 
 Lawrence. 
 
 principal right ; as in the case of a vessel damaged, where 
 the mere shore could not he a safe deposit for her cargo till 
 she could be repaired, she may remove into safe ground off 
 the river. The Koman law was here quoted too, because it 
 gave a good idea both of the extent and the limitations of this 
 right (y). 
 
 The relative position of the United States and Great 
 Britain in respect to the navigation of the great northern 
 lakes and the river St. Lawrence, appears to be similar to 
 that of the United States and Spain, previously to the 
 cession of Louisiana and Florida, in respect to the Mis- 
 sissippi ; the United States being in possession of the 
 southern shores of the lakes and the river St. Lawrence to 
 the point where their northern boundary line strikes the 
 river, and Great Britain, of the northern shores of the lakes 
 and the river in its whole extent to the sea, as well as of the 
 southern banks of the river, from the latitude 45 north to its 
 mouth. 
 
 The claim of the people of the United States, of a right to 
 navigate the St. Lawrence to and from the sea, was, in 1826, 
 the subject of discussion between the American and British 
 governments. 
 
 On the part of the United States government, this right is 
 rested on the same grounds of natural right and obvious ne- 
 cessity which had formerly been urged in respect to the river 
 Mississippi. The dispute between different European powers 
 respecting the navigation of the Scheldt, in 1784, was also 
 referred to in the correspondence on this subject, and the 
 case of that river was distinguished from that of the St. Law- 
 rence by its peculiar circumstances. Among others, it is known 
 to have been alleged by the Dutch, that the whole course of 
 the two branches of this river which passed within the do- 
 minions of Holland was entirely artificial ; that it owed its 
 existence to the skill and labour of Dutchmen ; that its 
 banks had been erected and maintained by them at a great 
 expense. Hence, probably, the motive for that stipulation in 
 the Treaty of Westphalia, that the lower Scheldt, with the 
 
 (y) Mr. Jefferson's Instructions to U. S. Ministers in Spain, March 18, 
 1792. Waite's State Papers, vol. x. pp. 135140.
 
 RIGHTS OF PROPERTY. 207 
 
 canals of Sas and Swin, and other mouths of the sea ad- 
 joining them, should be kept closed on the side belonging to 
 Holland. But the case of the St. Lawrence was totally 
 different, and the principles on which its free navigation was 
 maintained by the United States had recently received an 
 unequivocal confirmation in the solemn act of the principal 
 States of Europe. In the treaties concluded at the Congress 
 of Vienna, it had been stipulated that the navigation of the 
 llhine, the Neckar, the Mayn, the Moselle, the Maese, and 
 the Scheldt, should be free to all nations. These stipula- 
 tions, to which Great Britain was a party, might be con- 
 sidered as an indication of the present judgment of Europe 
 upon the general question. The importance of the present 
 claim might be estimated by the fact, that the inhabitants of 
 at least eight States of the American Union, besides the 
 territory of Michigan, had an immediate interest in it, be- 
 sides the prospective' interests of other parts connected with 
 this river and the inland seas through which it communicates 
 with the ocean. The right of this great and growing popu- 
 lation to the use of this its only natural outlet to the ocean, 
 was supported by the same principles and authorities which 
 had been urged by Mr. Jefferson in the negotiation with 
 Spain respecting the navigation of the river Mississippi. The 
 present claim was also fortified by the consideration that this 
 navigation was, before the war of the American Revolution, 
 the common property of all the British subjects inhabiting 
 this continent, having been acquired from France by the 
 united exertions of the mother country and the colonies, in 
 the war of 1756. The claim of the United States to the free 
 navigation of the St. Lawrence was of the same nature with 
 that of Great Britain to the navigation of the Mississippi, as 
 recognized by the 7th article of the Treaty of Paris, 1763, 
 when the mouth and lower shores of that river were held by 
 another power. The claim, whilst necessary to the United 
 States, was not injurious to Great Britain, nor could it vio- 
 late any of her just rights (z). 
 
 On the part of the British government, the claim was con- 
 
 (2) American Paper on the Navigation of the St. Lawrence. Congress 
 Documents, Session 18271828, No. 43, p. 34.
 
 268 RIGHTS OF PROPERTY. 
 
 sidered as involving the question whether a perfect right to 
 the free navigation of the river St. Lawrence could be main- 
 tained according to the principles and practice of the law of 
 nations. 
 
 The liberty of passage to be enjoyed by one nation through 
 the dominions of another was treated by the most eminent 
 writers on public law as a qualified, occasional exception to 
 the paramount rights of property. They made no distinction 
 between the right of passage by a river, flowing from the 
 possessions of one nation through those of another, to the 
 ocean, and the same right to be enjoyed by means of any 
 highway, whether of land or water, generally accessible to the 
 inhabitants of the earth. The right of passage, then, must 
 hold good for other purposes, besides those of trade, for 
 objects of war as well as for objects of peace, for all nations, 
 no less than for any nation in particular, and be attached to 
 artificial as well as to natural highways. The principle could 
 not, therefore, be insisted on by the American government, 
 unless it was prepared to apply the same principle by recipro- 
 city, in favour of British subjects, to the navigation of the 
 Mississippi and the Hudson, access to which from Canada 
 might be obtained by a few miles of land-carriage, or by the 
 artificial communications created by the canals of New York 
 and Ohio. Hence the necessity which has been felt by the 
 writers on public law, of controlling the operation of a prin- 
 ciple so extensive and dangerous, by restricting the right of 
 transit to purposes of innocent utility, to be exclusively de- 
 termined by the local sovereign. Hence the right in question 
 is termed by them an imperfect right. But there was nothing 
 in these writers, or in the stipulations of the Treaties of 
 Vienna, respecting the navigation of the great rivers of Ger- 
 many, to countenance the American doctrine of an absolute, 
 natural right. These stipulations were the result of mutual 
 consent, founded on considerations of mutual interest growing 
 out of the relative situation of the different States concerned 
 in this navigation. The same observation would apply to the 
 various conventional regulations which had been, at different 
 periods, applied to the navigation of the river Mississippi. 
 As to any supposed right derived from the simultaneous ac- 
 quisition of the St. Lawrence by the British and American
 
 RIGHTS OF PROPERTY. 269 
 
 people, it could not be allowed to have survived the treaty of 
 1783, by which the independence of the United States was 
 acknowledged, and a partition of the British dominions in 
 North America was made between the new government and 
 that of the mother country (a). 
 
 To this argument it was replied, on the part of the United 205 - 
 States, that, if the St. Lawrence were regarded as a strait Lawrence, 
 connecting navigable seas, as it ought properly to be, there 
 would be less controversy. The principle on which the right 
 to navigate straits depends, is, that they are accessorial to 
 those seas which they unite, and the right of navigating 
 which is not exclusive, but common to all nations ; the right 
 to navigate the seas drawing after it that of passing the 
 straits. The United States and Great Britain have between 
 them the exclusive right of navigating the lakes. The St. 
 Lawrence connects them with the ocean. The right to navi- 
 gate both (the lakes and the ocean) includes that of passing 
 from one to the other through the natural link. "Was it then 
 reasonable or just that one of the two co-proprietors of the 
 lakes should altogether exclude his associate from the use of 
 a common bounty of nature, necessary to the full enjoyment 
 of them ? The distinction between the right of passage, 
 claimed by one nation through the territories of another, on 
 land, and that on navigable water, though not always clearly 
 marked by the writers on public law, has a manifest existence 
 in the nature of things. In the former case, the passage can 
 hardly ever take place, especially if it be of numerous bodies, 
 without some detriment or inconvenience to the State whose 
 territory is traversed. But in the case of a passage on water 
 no such injury is sustained. The American government did 
 not mean to contend for any principle, the benefit of which, 
 in analogous circumstances, it would deny to Great Britain. 
 If, therefore, in the further progress of discovery, a connection 
 should be developed between the river Mississippi and Upper 
 Canada, similar to that which exists between the United 
 States and the St. Lawrence, the American government would 
 be always ready to apply, in respect to the Mississippi, the 
 same principles it contended for in respect to the St. Law- 
 la) British Paper on the Navigation of the St. Lawrence. Session, 1827 
 28, No. 43, p. 41.
 
 270 RIGHTS OF PROPERTY. 
 
 rence. But the case of rivers, which rise and debouch alto- 
 gether within the limits of the same nation, ought not to be 
 confounded with those which, having their sources and navi- 
 gable portions of their streams in States above, finally dis- 
 charge themselves within the limits of other States below. 
 In the former case, the question as to opening the navigation 
 to other nations, depended upon the same considerations which 
 might influence the regulation of other commercial intercourse 
 with foreign States, and was to be exclusively determined by 
 the local sovereign. But in respect to the latter the free 
 navigation of the river was a natural right in the upper in- 
 habitants, of which they could not be entirely deprived by the 
 arbitrary caprice of the lower State. Nor was the fact of sub- 
 jecting the use of this right to treaty regulations, as was pro- 
 posed at Vienna to be done in respect to the navigation of the 
 European rivers, sufficent to prove that the origin of the 
 right was conventional, and not natural. It often happened 
 to be highly convenient, if not sometimes indispensable, to 
 avoid controversies by prescribing certain rules for the en- 
 joyment of a natural right. The law of nature, though suffi- 
 ciently intelligible in its great outlines and general purposes, 
 does not always reach every minute detail which is called for 
 by the complicated wants and varieties of modern navigation 
 and commerce. Hence the right of navigating the ocean itself, 
 in many instances, principally incident to a state of war, is sub- 
 jected, by innumerable treaties, to various regulations. These 
 regulations the transactions of Vienna, and other analogous 
 stipulations should be regarded only as the spontaneous 
 homage of man to the paramount Lawgiver of the universe, 
 by delivering his great works from the artificial shackles and 
 selfish contrivances to which they have been arbitrarily and 
 unjustly subjected (6). 
 
 205a. It is now settled by the Treaty of Washington, 1871, that " The navi- 
 Treaty of gation of the river St. Lawrence, ascending and descending, from the 
 ton^isfi 45t ^ P ara ^ e * f nortl1 latitude, where it ceases to form the boundary 
 as to the St. between the two countries, from, to, and into the sea, shall for ever re- 
 Lawrence, main free and open for the purposes of commerce to the citizens of the 
 United States, subject to any laws and regulations of Great Britain, or 
 
 (b) Mr. .Secretary Clay's Letter to Mr. Gallatin, June 19, 1826. Session 
 1827- 1828, No. 43, p. 18.
 
 RIGHTS OF PROPERTY. 271 
 
 of the Dominion of Canada, not inconsistent with such privilege of free 
 navigation " (c). 
 
 The Suez Canal occupies a singular position in international law. It 205b. 
 has become a highway of nations of the utmost importance. It is The Suez 
 situated entirely in the territory of one State, and is the property of a 
 mercantile association. The inconvenience of closing it directly, or 
 indirectly by neglecting to dredge the bottom and repair the banks, 
 would be immense, and would be felt more in England than elsewhere, 
 as upwards of seventy-four per cent, of the whole shipping that passes 
 through is British. These considerations induced the English govern- 
 ment, in 1875, to purchase from the Khedive of Egypt a large number 
 of shares in the canal, which the latter owned in his private capacity 
 of shareholder. 
 
 Lord Derby has expressed an opinion that it will be most desirable to 
 buy up the rights of the shareholders, and to replace the company by a 
 syndicate, in which all the maritime powers shall be represented. His 
 Lordship, however, denies it to be the present intention of Her Majesty's 
 government to impose its will upon the company, or to endeavour to 
 control its decisions (d). 
 
 Sir Travers Twiss proposed, in 1875, that the canal should be neu- 205c. 
 tralized on terms similar to those upon which England and America Neutraliza- 
 agreed, with regard to the Panana Canal, when that work should be g 
 completed (e). Such an arrangement would not be incompatible with the 
 independence of the Porte ; and a similar plan has been carried out with 
 regard to the mouths of the Danube, which are entirely within Turkish 
 territory (/). The present Turko-Kussian war (1877), gave rise to ap- 
 prehensions, lest either of the belligerents should endeavour to close the 
 canal, or commit acts of hostility in or near it, and strong opinions were 
 expressed in the British Parliament to the effect that England would 
 insist on the canal being kept open. M. de Lesseps, the engineer and 
 president of the company to which the canal belongs, on the 10th of 
 May, 1877, laid before Lord Derby a proposal for its neutralization. His 
 Lordship declined to accept the scheme as put forward by M. de Lesseps, 
 but he " intimated to the Eussian ambassador that an attempt to blockade, 
 or otherwise to interfere with the canal or its approaches would be re- 
 garded by Her Majesty's government as a menace to India, and as a 
 grave injury to the commerce of the world." " Any such step would be 
 incompatible with the maintenance by Her Majesty's government of an 
 attitude of passive neutrality." " Her Majesty's government will ex- 
 pect that the Porte and the Khedive, will on their side abstain from 
 impeding the navigation of the canal, or adopting any measures likely 
 to injure the canal or its approaches, and they are firmly determined 
 not to permit the canal to be made the scene of any combat, or other 
 warlike operations " (</). 
 
 (c) [Art. xxvi. Treaty of Washington, 1871. See Appendix E.] 
 
 (d) [Documents Diplomatiques, Nov. 1875, pp. 203, 204]. 
 
 (e) [Revue de Droit International, 1875, p. 690]. 
 
 (/) [See Hertslet, Map of Europe by Treaty, vol. iii. p. 1922]. 
 (g) [Lord Derby to Lord Lyons, 16th May, 1877. Parl. Papers, Egypt, 
 No. 1 (1877)].
 
 PAET THIED. 
 
 INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC 
 RELATIONS. 
 
 206. 
 
 Usage of 
 
 permanent 
 
 diplomatic 
 
 207. 
 
 Right to 
 send, and 
 obligation 
 to receive 
 public 
 ministers. 
 
 CHAPTER I. 
 
 RIGHTS OF LEGATION. 
 
 THERE is no circumstance which marks more distinctly the 
 progress of modern civilization, than the institution of perma- 
 nent diplomatic missions between different States. The rights 
 of ambassadors were known, and, in some degree, respected 
 by the classic nations of antiquity. During the middle ages 
 they were less distinctly recognized, and it was not until the 
 seventeenth century that they were firmly established. The 
 institution of resident permanent legations at all the European 
 courts took place subsequently to the Peace of Westphalia, 
 and was rendered expedient by the increasing interest of the 
 different States in each other's affairs, growing out of more 
 extensive commercial and political relations, and more refined 
 speculations respecting the balance of power, giving them the 
 right of mutual inspection as to all transactions by which that 
 balance might be affected. Hence the rights of legation have 
 become definitely ascertained and incorporated into the inter- 
 national code. 
 
 Every independent State has a right to send public minis- 
 ters to, and receive ministers from, any other sovereign State 
 with which it desires to maintain the relations of peace and 
 amity. No State, strictly speaking, is obliged, by the positive 
 law of nations, to send or receive public ministers, although 
 the usage and comity of nations seem to have established a 
 sort of reciprocal duty in this respect. It is evident, however, 
 that this cannot be more than an imperfect obligation, and 
 must be modified by the nature and importance of the rela-
 
 RIGHTS OF LEGATION. 273 
 
 tions to be maintained between different States by means of 
 diplomatic intercourse (). 
 
 How far the rights of legation belong to dependent or semi- R ., 208- 
 sovereign States, must depend upon the nature of their legation, 
 peculiar relation to the superior State under whose protection s a ^ e g at 
 they are placed. Thus, by the treaty concluded at Kainardgi, belonging, 
 in 1774, between Russia and the Porte, the provinces of 
 Moldavia and Wallachia, placed under the protection of the 
 former power, have the right of sending charges d'affaires of 
 the Greek communion to represent them at the court of Con- 
 stantinople (i). 
 
 So also of confederated States ; their right of sending public 
 ministers to each other, or to foreign States, depends upon 
 the peculiar nature and constitution of the union by which 
 they are bound together. Under the constitution of the 
 former German Empire, and that of the Germanic Confedera- 
 tion, this right was preserved to all the princes and States 
 composing the federal union (c). Such was also the former 
 Constitution of the United Provinces of the Low Countries, 
 and such is now that of the Swiss Confederation. By the 
 Constitution of the United States of America every State is 
 expressly forbidden from entering, without the consent of 
 Congress, into any treaty, alliance, or confederation, with any 
 other State of the Union, or with a foreign State, or from 
 entering, without the same consent, into any agreement or 
 compact with another State, or with a foreign power. The 
 original power of sending and receiving public ministers is 
 essentially modified, if it be not entirely taken away, by this 
 prohibition (d). 
 
 The question, to what department of the government be* 209. 
 
 How 
 
 (a) Vattel, Droit des Gens, liv. iv. ch. 5, 5565. Rutherforth's Insti- affected b ? 
 tutes, vol. ii. b. ii. ch. 9, 20, Martens, Precis du Droit des Gens Moderne 
 
 de 1' Europe, liv. vii. ch. 1, 187190. 
 
 (b) Vattel, liv. iv. ch. 5, 60. Kliiber, Droit des Gens Moderne de 
 1'Europe, st. 2, tit. 2, ch. 3, 175. Merlin, Repertoire, tit. Minist.rc publique, 
 sect. ii. 1, No. '3, 4, [Roumania, as these united provinces are now called, 
 sends agents (Capou-kiaga) to the supreme court of Constantinople, who must 
 be native born Moldavians or Wallachians, not holding of any foreign juris- 
 diction, and accepted by the Porte. Convention of 19th Aug. 1858, art. ix. 
 See Hertslet, Map of Europe, vol. ii. p. 1334.] 
 
 (c) [It is now merged in that of the German empire]. 
 
 (d) Heffter, das Europaische Volkerrecht, 200, Merlin, Repertoire, tit. 
 Ministrc publique, sect ii. . 1, No. 5. [As to the reception of the Dutch 
 ambassadors in the sixteenth century, see Motley's Life of John Barneveld, 
 vol. i. ch. 1,] 
 
 T
 
 274 
 
 RIGHTS OF LEGATION. 
 
 the sove 
 ragnty. 
 
 civil war or Jongs the right of sending and receiving public ministers, also 
 contest for 
 
 depends upon the municipal constitution of the State. In 
 
 monarchies, whether absolute or constitutional, this prerogative 
 usually resides in the sovereign. In republics, it is vested 
 either in the chief magistrate, or in a senate or council, con- 
 jointly with, or exclusive of, such magistrate. In the case of 
 a revolution, civil war, or other contest for the sovereignty, 
 although, strictly speaking, the nation has the exclusive right 
 of determining in whom the legitimate authority of the coun- 
 try resides, yet foreign States must of necessity judge for 
 themselves whether they will recognize the government de 
 facto, by sending to, and receiving ambassadors from, it ; or 
 whether they will continue their accustomed diplomatic rela- 
 tions with the prince whom they choose to regard as the 
 legitimate sovereign, or suspend altogether these relations 
 with the nation in question. So, also, where an empire is 
 severed by the revolt of a province or colony declaring and 
 maintaining its independence, foreign States are governed by 
 expediency in determining whether they will commence diplo- 
 matic intercourse with the new State, or wait for its recogni- 
 tion by the metropolitan country (e). 
 
 For the purpose of avoiding the difficulties which might 
 arise from a formal and positive decision of these questions, 
 diplomatic agents are frequently substituted, who are clothed 
 with the powers, and enjoy the immunities of ministers, 
 though they are not invested with the representative character, 
 nor entitled to 'diplomatic honours. 
 
 rebels 
 
 209a. It was on this footing that Messrs. Slidell and Mason, the emissaries of 
 Communi- the Confederate States, who were seized on board The Trent, were sent to 
 Europe (/). During the continuance of a rebellion, although foreign 
 States may refuse to recognise the insurgents in any way, or to enter 
 into regular diplomatic intercourse with them, it sometimes becomes 
 necessary for the protection of their own commerce and subjects, that 
 foreign States should communicate with the rebel authorities. Lord 
 Russell has laid it down that " Her Majesty's Government hold it to be 
 an undoubted principle of international law, that when tnVj^H-eons or 
 the property of the subjects or citizens of a State- are injured by a de 
 
 (e) Vide supra, Pt. I. ch. 2, 
 publiqiw, sect. ii. 
 
 2327. Merlin, Kepertoire, tit. Ministre 
 
 , . . . 
 
 (/) [Wheaton, by Lawrence, p. 378, n. 118. Parl. Papers, N. America 
 62 (No. 5), p. 34. See ante, Pt. II. ch. 2, 109 6].
 
 RIGHTS OF LEGATION. 275 
 
 facto government, the State so aggrieved has a right to claim from the de 
 facto government redress and reparation ; and also that in cases of 
 apprehended losses or injury to their subjects, States may lawfully 
 enter into communication with de facto governments to provide for the 
 temporary security of the persons and property of their subjects " (</). 
 
 As no State is under a perfect obligation to receive 210. 
 ministers from another, it may annex such conditions to their ^^j 1 * 1 
 reception as it thinks fit ; but when once received, they are in of foreign 
 all other respects entitled to the privileges annexed by the law 
 of nations to their public character. Thus some governments 
 have established it as a rule not to receive one of their own 
 native subjects as a minister from a foreign power ; and a 
 government may receive one of its own subjects under the 
 expressed condition that he shall continue amenable to the 
 local laws and jurisdiction. So also one court may refuse to 
 receive a particular individual as minister from another court, 
 alleging the motives on which such refusal is grounded (Ji). 
 
 The primitive law of nations makes no other distinction 211. 
 between the different classes of public ministers, than that JfoTdf a " 
 which arises from the nature of their functions ; but the public min- 
 modern usage of Europe having introduced into the voluntary 
 law of nations certain distinctions in this respect, which, for 
 want of exact definition, became the perpetual source of con- 
 troversies, uniform rules were at last adopted by the Congress 
 of Vienna, and that of Aix-la-Chapelle, which put an end to 
 those disputes. By the rules thus established, public ministers 
 are divided into the four following classes ; 
 
 1. Ambassadors, and papal legates or nuncios. 
 
 2. Envoys, ministers, or others accredited to sovereigns 
 (aupres des souverains). 
 
 8. Ministers resident accredited to sovereigns. 
 4. Charges d'affaires accredited to the minister of foreign 
 affairs (i). 
 
 (g) [Earl Russell to Mr. Adams, 26th Nov. 1861. U. S. Dipl. Cor. 1862, 
 p. 8]. 
 
 (h) Bynkershoek, de Foro Legatornm, cap. 11, 10. Martens, Manuel 
 Diplomatique, cli. 1, 6. Merlin, Repertoire, tit. Ministrc publique, sect, 
 iii. 5. 
 
 (i) The rccez of the Congress of Vienna of the 19th of March, 1815, pro- 
 vides: 
 
 " Art. 1. Les employes drplomatiquas sont partages en trois classes ; 
 
 " Celle des ambassadeurs, legats on nonces ; 
 
 *' Celle des envoyes, miuistres, ou autres acereditcs aupres des souverains ;
 
 276 RIGHTS OF LEGATION. 
 
 212. Ambassadors and other public ministers of the first class 
 
 dors. are exclusively entitled to what is called the representative 
 
 character, being considered as peculiarly representing the 
 sovereign or State by whom they are delegated, and entitled 
 to the same honours to which their constituent would be 
 entitled, were he personally present. This must, however, 
 be taken in a general sense, as indicating the sort of honours 
 to which they are entitled ; but the exact ceremonial to be 
 observed towards this class of ministers depends upon usage, 
 which has fluctuated at different periods of European history. 
 There is a slight shade of difference between ambassadors 
 ordinary and extraordinary ; the former designation being 
 exclusively applied to those sent on permanent missions, the 
 latter to those employed on a particular or extraordinary occa- 
 sion, though it is sometimes extended to those residing at a 
 foreign court for an indeterminate period (A;). 
 
 The right of sending ambassadors is exclusively confined to 
 crowned heads, the great republics, and other States entitled 
 to royal honours (7). 
 
 "Celle des charges d'affaires accredites aupres des ministres charges des 
 affaires etrangeres. 
 
 " Art. 2. Les ambassadeurs, legats on nonces, ont seuls le caractere repre"- 
 sentatif. 
 
 " Art. 3. Les employes diplomatiques en mission extraordinaire, n'ont, a 
 ce titre, aucune superiorite de rang. 
 
 "Art. 4. Les employes diplomatiques prendront rang, entre eux, dans 
 chaque classe, d'apres la date de la notification officielle de leur arrivee. 
 
 ' ' Le present reglenaent n'apportera aucune innovation relativement aux re- 
 presentans du Pape. 
 
 "Art. 5. II sera determine dans chaque etat une mode uniforme pour la 
 reception des employes diplomatiques de chaque classe. 
 
 "Art. 6. Les liens de parente ou d'alliance de famille entre les cours, ne 
 donnent aucun rang a leurs employes diplomatiques. 
 
 "II en est de meme des alliances politiques. 
 
 "Art. 7. Dans les actes ou traites entre plusieurs puissances, qui admet- 
 tent 1'alternat,- le sort decidera, entre les ministres, de 1'ordre qui devra etre 
 suivi dans les signatures." 
 
 The protocol of the Congress of Aix-la-Chapelle of the 21st November, 1818, 
 declares : 
 
 " Pour eviter les discussions desagreables qui pourraient avoir HpuaTavenir 
 sur un point d'etiquette diplomatique, que 1'annexe du recez de Vionne, par 
 leque-1 les questions de rang ont etc reglees, ne parait pas avoir prevu, il est 
 arrete entre les cinq cours, que les ministres residens, accredites aupres d'elles 
 formeront, par rapport a leur rang, une classe intermediate entre les ministres 
 du second ordre et les charges d'affaires." 
 
 (k) Vattel, Droit des Gens, liv. iv. ch. 6, 7079. Martens, Precis du 
 Droit des Gens Moderne de 1'Europe, liv. vii. ch. 9, 192. Martens, Manuel 
 Diplomatique, ch. 1, 9. 
 
 (1) Martens, Precis, &c., liv. vii. ch. 2, 198. Vide ante, Pt. II. ch. 3, 
 153.
 
 RIGHTS OF LEGATION. 277 
 
 All other public ministers are destitute of that particular 213 - 
 character which is supposed to be derived from representing O f the se- 
 generally the person and dignity of the sovereign. They cond class- 
 represent him only in respect to the particular business 
 committed to their charge at the court to which they are 
 accredited (m). 
 
 Ministers of the second class are envoys, envoys extraordi- 
 nary, ministers plenipotentiary, envoys extraordinary and 
 ministers plenipotentiary, and internuncios of the pope (n). 
 
 So far as the relative rank of diplomatic agents may be 214. 
 determined by the nature of their respective functions, there is 
 no essential difference between public ministers of the first 
 class and those of the second. Both are accredited by the 
 sovereign, or supreme executive power of the State, to a 
 foreign sovereign. The distinction between ambassadors and 
 envoys was originally grounded upon the supposition, that the 
 former are authorized to negotiate directly with the sovereign 
 himself; whilst the latter, although accredited to him, are 
 only authorized to treat with the minister of foreign affairs or 
 other person empowered by the sovereign. The authority to 
 treat directly with the sovereign was supposed to involve a 
 higher degree of confidence, and to entitle the person, on 
 whom it was conferred, to the honours due to the highest 
 rank of public ministers. This distinction, so far as it is 
 founded upon any essential difference between the functions 
 of the two classes of diplomatic agents, is more apparent than 
 real. The usage of all times, and especially the more recent 
 times, authorizes public ministers of every class to confer, on 
 all suitable occasions, with the sovereign at whose court they 
 are accredited, on the political relations between the two 
 States. But even at those periods when the etiquette of 
 European courts confined this privilege to ambassadors, such 
 verbal conferences with the sovereign were never considered 
 as binding official acts. Negotiations were then, as now, con- 
 ducted and concluded with the minister of foreign affairs, and 
 it is through him that the determinations of the sovereign 
 are made known to foreign ministers of every class. If 
 this observation be applicable as between States, according to 
 
 (m) Martens, Manuel Diplomatique, ch. 1, 10. 
 () Ibid.
 
 278 RIGHTS OF LEGATION. 
 
 whose constitutions of government negotiations may, under 
 certain circumstances, be conducted directly between their 
 respective sovereigns, it is still more applicable to representa- 
 tive governments, whether constitutional monarchies or re- 
 publics. In the former, the sovereign acts, or is supposed to 
 act, only through his responsible ministers, and can only bind 
 the State and pledge the national faith through their agency. 
 In the latter, the supreme executive magistrate cannot be sup- 
 posed to have any relations with a foreign sovereign, such as 
 would require or authorize direct negotiations between them 
 respecting the mutual interests of the two States (o). 
 215. In the third class are included ministers, ministers resi- 
 
 ofThethird dent, residents, and ministers charges d'affaires, accredited 
 
 class. to sovereigns (p). 
 
 Charges d'affaires, accredited to the ministers 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 per interim, substi- 
 tuted in the place of the minister of their respective nations 
 during his absence (q). 
 
 According to the rule prescribed by the Congress of Vienna, 
 and which has since been generally adopted, public ministers 
 take rank between themselves, in each class, according to the 
 date of the official notification of their arrival at the court to 
 which they are accredited (r). 
 
 The same decision of the Congress of Vienna has also abo- 
 lished all distinctions of rank between public ministers, arising 
 from consanguinity and family or political relations between 
 their different courts (s). 
 
 A State which has a right to send public ministers of dif- 
 ferent classes, may determine for itself what rank it chooses 
 to confer upon its diplomatic agents ; but usage generally 
 requires that those who maintain permanent missions near 
 the government of each other should send and receive 
 ministers of equal rank. One minister may represent his 
 
 (o) Pinheiro'Ferreira, Notes to Martens, Precis du Droit des Gens, torn. ii. 
 Notes 12, 14. 
 
 (p) Martens, Precis, &c., liv. vii. ch. 2, 194. 
 
 (q) Martens, Manuel Diplomatique, ch. 1, 11. 
 
 (r) Recez du Congres de Vienne du 19 Mars, 1815, art. 4. 
 
 (s) Ibid., art. 6.
 
 RIGHTS OF LEGATION. 279 
 
 sovereign at different courts, and a State may send several 
 ministers to the same court. A minister or ministers may 
 also have full powers to treat with foreign States, as at a 
 Congress of different nations, without heing accredited to any 
 particular court (t). 
 
 Consuls, and other commercial agents, not being accredited 21e - 
 
 . . p . . . . Consuls. 
 
 to the sovereign or minister of foreign affairs, are not, in 
 general, considered as public ministers ; but the consuls 
 maintained by the Christian Powers of Europe and America 
 near the Barbary States are accredited and treated as public 
 
 ministers (/./.). 
 
 217 
 Every diplomatic agent, in order to be received in that Letters of 
 
 character, and to enjoy the privileges and honours attached to credence, 
 his rank, must be furnished with a letter of credence. In the 
 case of an ambassador, envoy, or minister, of either of the 
 three first classes, this letter of credence is addressed by the 
 sovereign, or other chief magistrate of his own State, to 
 the sovereign or State to whom the minister is delegated. 
 In the case of a charge d'affaires, it is addressed by the 
 secretary, or minister of State charged with the department of 
 foreign affairs, to the minister of foreign affairs of the other 
 government. It may be in the form of a cabinet letter, but is 
 more generally in that of a letter of council. If the latter, it is 
 signed by the sovereign or chief magistrate, and sealed with 
 the great seal of State. The minister is furnished with an 
 authenticated copy, to be delivered to the minister of foreign 
 affairs, on asking an audience for the purpose of delivering the 
 original to the sovereign, or other chief magistrate of the 
 State, to whom he is sent. The letter of credence states the 
 general object of his mission, and requests that full faith and 
 credit may be given to what he shall say on the part of his 
 court (x). 
 
 The full power, authorizing the minister to negotiate, may 218. 
 be inserted in the letter of credence, but it is more usually 
 drawn up in the form of letters-patent. In general, ministers 
 
 (t) Martens, Precis, &c., liv. vii. ch. 2, 199204. 
 
 (u) Bynkerslioek, de Foro Competent. Legat. cap. 10, 46. Martens, 
 Manuel Diplomatique, ch. 1, 13. Vattel, liv. ii. ch. 2, 34. Wicquefort, 
 de 1'Ambassadeur, liv. i. 1, p. 63. 
 
 (x) Martens, Precis, &c., liv. vii. ch. 3, 202. Wicriuefort, de 1'Ambassa- 
 deur, liv. i. 15.
 
 280 RIGHTS OF LEGATION. 
 
 sent to a Congress are not provided with a letter of credence, 
 but only with a full power, of which they reciprocally exchange 
 copies with each other, or deposit them in the hands of the 
 mediating power or presiding minister (y). 
 
 219. The instructions of the minister are for his own direction 
 
 tions. C " on ty> an d n t *o be communicated to the government to which 
 he is accredited, unless he is ordered by his own government 
 to communicate them in extenso, or partially ; or unless, in 
 the exercise of his discretion, he deems it expedient to make 
 such a communication (a}. 
 
 f 219 a. Some States refuse to receive communications from foreign ministers, 
 Communi- either on all or on particular topics, unless a copy is at the same time 
 cation of given to their own minister. In 1825, Canning was informed that the 
 lions' 10 " Russian ambassador was about to read him a despatch from St. Peters- 
 burg, relating to British policy in South America, but that he would not 
 leave him a copy. At the interview Canning declined to allow the 
 reading of the despatch to commence if no copy would be left, on the 
 ground that he could not, at a single hearing, take in the full bearing of 
 the document, nor weigh its expressions sufficiently to return a suitable 
 reply (a). 
 
 220. -A- public minister^ proceeding to his destined post in time 
 
 Passport. o f p eace requires no other protection than a passport from 
 his own government. In time of war, he must be provided 
 with a safe conduct or passport, from the government of the 
 State with which his own country is in hostility, to enable him 
 to travel securely through its territories (b). 
 
 221. It i" 3 the duty of every public minister, on arriving at his 
 
 Duties of a destined post, to notify his arrival to the minister of foreign 
 
 minister, affairs. If the foreign minister is of the first class, this noti- 
 
 on ^. rnving fication is usually communicated by a secretary of embassy or v 
 
 legation, or other person attached to the mission, who hands 
 
 to the minister of foreign affairs a copy of the letter of 
 
 credence, at the same time requesting an audience of the 
 
 sovereign for his principal. Ministers of the second and 
 
 third classes generally notify their arrival by letter to the 
 
 (y) Wicquefort, lit. i. 16, Martens, Precis, &c., liv. vii. ch. Z, 204. 
 Manuel Diplomatique, ch. 2, 17. 
 (z) Manuel Diplomatique, ch. 2, 16. 
 
 (a) [Calvo, Droit International (2nd ed.), vol. i. 430, p. 550]. 
 
 (b) Vattel, liv. iv. ch. 7, 85. Manuel Diplomatique, en. 2, 19. Flassan, 
 Histoire tie la Diplomatic Franyaise, torn. v. p. 246.
 
 RIGHTS OF LEGATION. 281 
 
 minister of foreign affairs, requesting him to take the orders 
 of the sovereign, as to the delivery of their letters of credence. 
 Charges d'affaires, who are not accredited to the sovereign, 
 notify their arrival in the same manner, at the same time 
 requesting an audience of the minister of foreign affairs for 
 the purpose of delivering their letters of credence. 
 
 Ambassadors, and other ministers of the first class, are . 223< 
 entitled to a public audience of the sovereign ; but this O f the 
 ceremony is not necessary to enable them to enter on their ^f^f 1 ' 
 functions, and, together with the ceremony of the solemn magistrate. 
 entry, which was formerly practised with respect to this class 
 of ministers, is now usually dispensed with, and they are 
 received in a private audience, in the same manner as other 
 ministers. At this audience, the letter of credence is 
 delivered, and the minister pronounces a complimentary 
 discourse, to which the sovereign replies. In republican 
 States, the foreign minister is received in a similar manner, 
 by the chief executive magistrate or council, charged with 
 the foreign affairs of the nation (c). 
 
 The usage of civilized nations has established a certain 223, 
 etiquette, to be observed by the members of the diplomatic etiquette" 3 
 corps, resident at the same court, towards each other, and 
 towards the members of the government to which they are 
 accredited. The duties which comity requires to be observed, 
 in this respect, belong rather to the code of manners than of 
 laws, and can hardly be made the subject of positive sanc- 
 tion ; but there are certain established rules in respect to 
 them, the non-observance of which may be attended with 
 inconvenience in the performance of more serious and im- 
 portant duties. Such are the visits of etiquette, which the 
 diplomatic ceremonial of Europe requires to be rendered and 
 reciprocated, between public ministers resident at the same 
 court (d). 
 
 From the moment a public minister enters the territory of 224. 
 the State to which he is sent, during the time of his resi- 0"^,^ 
 dence, and until he leaves the country, he is entitled to an minister, 
 entire exemption from the local jurisdiction, both civil and 
 criminal. Representing the rights, interests, and dignity of 
 
 (c) Martens, Manuel Diplomatique, eh. 4, 33^6. 
 
 (d) Manuel Diplomatique, eh. 4, 37.
 
 282 
 
 EIGHTS OB' LEGATION. 
 
 224 a. 
 Inviola- 
 bility and 
 exterri- 
 toriality. 
 
 the sovereign or State by whom he is delegated, his person 
 is sacred and inviolable. To give a more lively idea of this 
 complete exemption from the local jurisdiction, the fiction of 
 extra-territoriality has been invented, by which the minister, 
 though actually in a foreign country, is supposed still to 
 remain within the territory of his own sovereign. He con- 
 tinues still subject to the laws of his own country, which 
 govern his personal status and rights of property, whether 
 derived from contract, inheritance, or testament. His chil- 
 dren born abroad are considered as natives. This exemption 
 from the local laws and jurisdiction is founded upon mutual 
 utility, growing out of the necessity that public ministers 
 should be entirely independent of the local authority, in order 
 to fulfil the duties of their mission. The act of sending the 
 minister on the one hand, and of receiving him on the other, 
 amounts to a tacit compact between the two States that he 
 shall be subject only to the authority of his own nation (e). 
 
 The passports or safe conduct, granted by his own govern- 
 ment in time of peace, or by the government to which he 
 is sent in time of war, are sufficient evidence of his public 
 character for this purpose (/). 
 
 Halleck draws a distinction between the inviolability and the exterrito- 
 riality of a public minister. He says, "the former is not a consequence 
 of the latter, but the latter was invented for the purpose of giving 
 security to the former. The mere fact of a public minister being re- 
 garded as a foreigner, resident in a foreign country, would not, of itself, 
 
 necessarily exempt him from local jurisdiction The true 
 
 basis of all diplomatic privilege consists in the idea of inviolability 
 which international j urisprudence attaches to his person and his office, 
 and from which it cannot be severed. This idea of inviolability is alt 
 inherent and essential quality of the public minister, and the office can- 
 not exist without it. International law has conferred it upon the State 
 or sovereign which he represents, and to divest him of that quality is 
 to divest him of his office, as the two are inseparable. Not so with 
 the fiction of exterritoriality. So far as that is not necessary to the 
 exercise of his functions, or, in other words, to secure his inviolability, it 
 
 (e) Grotius, de Jur. Bel. ao Pac. lib. ii. cap. 18, 16. Rutherforth's Inst. 
 vol. ii. b. ii. ch. 9, 20. Wicquefort, de 1'Arabassadeur, liv. i. 27. Byn- 
 kershoek, de Jure Competent. Legat. cap. 5, 8. Vattel, Droit des Gens, 
 liv. iv. ch. 7, 81125. Martens, Precis, &c., liv. vii. ch. 5, 214218. 
 KlUber, Droit des Gens Moderne de 1'Europe, Ft. II. tit. 2, 203. Foslix, 
 Droit International Prive, 184. Wheaton, Hist. Law of Nations, pp. 237 
 243. 
 
 {/) Vattel, liv. iv. ch. 7, 83.
 
 RIGHTS OF LEGATION. 2N3 
 
 is not an essential quality of the public minister, and therefore may be 
 dispensed with by renouncement or otherwise " (</). 
 
 This immunity extends, not only to the person of the 225> 
 
 . . Exceptions 
 
 minister, but to his family and suite, secretaries ot legation to the 
 
 and other secretaries, his servants, moveable effects, and the ^ e er f ex _ 
 house in which he resides (/i). emption 
 
 from the 
 
 The absolute exterritoriality of a minister's house was recently dis- (jiction 1 
 puted by the French Government. In April, 1867, one Mickilchenkorif, __ 
 a Russian subject, appeared at the Russian embassy in Paris, and made a Minister's 
 demand which was refused. Thereupon he assaulted one of the attaches house, 
 with a dagger, wounded him, and injured two other persons who came 
 to the rescue. The police being applied to, entered the house and 
 removed the culprit, who was afterwards brought before the Cour 
 d'Assise. The Russian ambassador, who was absent when the crime 
 was committed, on his return demanded that the prisoner should be 
 sent to Russia, on the ground that the act having been committed in his 
 hotel, the French courts had no jurisdiction, and the case must be tried 
 in Russia. The French Government refused to give up the prisoner, 
 urging that the principle of exterritoriality did not cover the case of 
 a stranger entering the minister's house, and there committing a crime ; 
 and that even if it did, the parties themselves had in this particular 
 case waived the privilege by summoning the local police. The Russian 
 Government finally admitted the jurisdiction of the French court, and 
 the prisoner was duly tried by the local law (i}. 
 
 The minister's person is in general entirely exempt both 
 from the civil and criminal jurisdiction of the country where 
 he resides. To this general exemption, there may be the 
 following exceptions : 
 
 1. This exemption from the jurisdiction of the local 
 tribunals and authorities does not apply to the contentious 
 jurisdiction which may be conferred on those tribunals by the 
 minister voluntarily making himself a party to a suit at 
 law (k). 
 
 It has been held in England that an ambassador, having no real pro- 225 b, 
 perty in the country, and having done nothing to disentitle him to the Suits b y 
 general privileges of his office, cannot, while he remains such ambas- ^nigfei-g 8 
 
 (g) [Halleck, cli. ix. IS, p. 210]. 
 
 (h) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xviii. 8, 9. Bynkershoek, 
 de Foro Competent. Legat. cap. 13, 5 ; cap. 15, 20. Vattel, Kv. iv. ch. 8 
 113; ch. 9, 117123. Martens, Precis, &c., liv. vii. ch. 5, 215227 ; 
 ch. 9, 234237. Fcelix, 184186. 
 
 (i) [Calvo, Droit International, vol. i. 521, p. 650]. 
 
 (k) Bynkershoek, cap. 16, 1315. Vattel, liv. iv. ch. 8, 111. Martens, 
 Precis, liv. vii. ch. 5, 216. Merlin, Rep. tit. Ministrc, s. 5, 4, No. 10.
 
 284 RIGHTS OF LEGATION. 
 
 eador, be sued in England against his will, although the suit may arise 
 out of commercial transactions by him here, and although neither his 
 person nor his goods are touched by the suit (I). But if the ambas- 
 sador appears and submits to the jurisdiction, the action can then be 
 proceeded with (m). The constitution of the United States vests the 
 exclusive jurisdiction " of all suits or proceedings against ambassadors, 
 or other public ministers, or their domestics, or domestic servants, 
 or against consuls or vice-consuls," in the courts of the United States, to 
 the exclusion of the State courts (n). If an ambassador contracts debts 
 which he refuses to pay, and if he also refuses to submit to the jurisdic- 
 tion, creditors have no remedy but to apply to the Minister for Foreign 
 Affairs of the ambassador's own country (o). 
 
 225 o The immunities of ambassadors in England are partially defined by a 
 Foreign statute of the reign of Queen Anne, which recites that " whereas several 
 ministers turbulent and disorderly persons having in a most outrageous manner 
 | n d** 8 " insulted the person of his Excellency Andrew Artemonowitz Mattueof 
 ambassador extraordinary of his Czarish Majesty, Emperor of Great 
 Russia, by arresting him and taking him by violence out of his coach in 
 the public street, and detaining him in custody for several hours, in con- 
 tempt of the protection granted by Her Majesty, contrary to the law of 
 nations, and in prejudice of the rights and privileges which ambassadors 
 and other public ministers, authorized and received as such, have at all 
 times been thereby possessed of, and ought to be kept sacred and invio- 
 lable ; " it was therefore enacted, " that all writs and processes that shall 
 at any time hereafter be sued forth or prosecuted, whereby the person of 
 any ambassador, or other public minister of any foreign prince or State 
 or the domestick or domestick servant of any such ambas- 
 sador, or other public minister, may be arrested or imprisoned, or his or 
 their goods or chattels may be distrained, seized or attached, shall be 
 deemed or adjudged to be utterly null and void to all intents, construc- 
 tions, and purposes whatsoever " (p). But no merchant or trader who 
 puts himself into the service of an ambassador, shall have the benefit of 
 the Act, and every ambassador's servant must be registered to entitle him 
 to exemption from process (q). If the ambassador himself engagVin ' 
 trade, he does not thereby forfeit the privilege conferred by the 
 statute (r). 
 
 2. If lie is a citizen or subject of the country to which he 
 is sent, and that country has not renounced its authority over 
 
 (I) [Magdalena Steam Navig. Co. v. Martin, 2 E. & E. 94]. 
 
 (TO) [Taylor v. Best, 14 C. B. 521; Gladstone v. Musurus Bey, 9 Jur. N. S. 
 71. Halleck, ch. ix. 17, p. 216. Arid see U. S. v. Hand, 2 Washington, 
 C. C. 435]. 
 
 (n) [U. S. Revised Statutes, tit. xiii. ch. 12, sec. 711. U. S. v. Ravara, 
 2 Dallas, 297; Cohens v. Virginia, 6 Wheaton, 407; St. Luke's Hospital v. 
 Earkley, 3 Blatchford, 259]. 
 
 (o) [Calvo, Droit International, vol. i. 522]. 
 
 (p)~tf Anne, c. 12, sec. 3]. 
 
 (q) [Ibid., sec. 5]. 
 
 (r) [JSarbuil's case, C'as. Temp. Talbot, 281; Taylor v. Best, 14 C. B. 487].
 
 RIGHTS OF LEGATION. 285 
 
 him, he remains still subject to its jurisdiction. But it may 
 be questionable whether his reception as a minister from 
 another power, without any express reservation as to his 
 previous allegiance, ought not to be considered as a renuncia- 
 tion of this claim, since such reception implies a tacit con- 
 vention between the two States that he shall be entirely 
 exempt from the local jurisdiction (s). 
 
 3. If he is at the same time in the service of the power who 
 receives him as a minister, as sometimes happens among 
 the German courts, he continues still subject to the local 
 jurisdiction (t). 
 
 4. In case of offences committed by public ministers 
 affecting the existence and safety of the State where they 
 reside, if the danger is urgent, their persons and papers may 
 be seized, and they may be sent out of the country. In all 
 other cases, it appears to be the established usage of nations 
 to request their recall by their own sovereign, which, if un- 
 reasonably refused by him, would unquestionably authorize 
 the offended State to send away the offender. There may be 
 other cases which might, under circumstances of sufficient 
 aggravation, warrant the State thus offended in proceeding 
 against an ambassador as a public enemy, or in inflicting 
 punishment upon his person if justice should be refused by 
 his own sovereign. But the circumstances which would 
 authorize such a proceeding are hardly capable of precise 
 definition, nor can any general rule be collected from the 
 examples to be found in the history of nations where public 
 ministers have thrown off their public character and plotted 
 against the safety of the State to which they were accredited. 
 These anomalous exceptions to the general rule resolve 
 themselves into the paramount right of self-preservation and 
 necessity. Grotius distinguishes here between what may 
 be done in the way of self-defence and what may be done in 
 the way of punishment. Though the law of nations will not 
 allow an ambassador's life to be taken away as a punishment 
 for a crime after it has been committed, yet this law does not 
 oblige the State to suffer him to use violence without endea- 
 vouring to resist it () 
 
 (s) Bynkershoek, cap. 11. Vattel, liv. iv. cli. 8, 112. 
 
 (t) Martens, Manuel Diplomatique, ch. 3, 23. 
 
 (u) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, 4. Kutlierforth's lust.
 
 286 
 
 RIGHTS OF LEGATION. 
 
 Instances 
 of the 
 expulsion 
 of ambas- 
 sadors. 
 
 Personal 
 
 exemption 
 
 extending 
 
 to his 
 
 family, 
 
 secretaries, 
 
 servants, 
 
 &c. 
 
 Several instances are to be found in history of ambassadors being 
 seized and sent out of the country. The Bishop of Ross, ambassador of 
 Mary Queen of Scots, was imprisoned and then banished from England, 
 for conspiring against the sovereign, while the Duke of Norfolk and 
 other conspirators were tried and executed (). In 1584, De Mendoza, 
 the Spanish ambassador in England, was ordered to quit the realm for 
 conspiring to introduce foreign troops and dethrone Queen Elizabeth (i/). 
 In 1654, De Bass, the French Minister, was ordered to depart the coun- 
 try in twenty -four hours, on a charge of conspiracy against the life of 
 Cromwell (2). In 1717 Gyllenborg, the Swedish ambassador, contrived 
 a plot to dethrone George I. He was arrested, his cabinet broken open 
 and searched, and his papers seized. Sweden arrested the British 
 minister at Stockholm by way of reprisal. The Regent of France inter- 
 posed his good offices, and the two ambassadors were shortly afterwards 
 exchanged (a). The arrest of Gyllenborg was necessary as a measure of 
 self defence, but on no principle of international law can the arrest 
 of the British minister by Sweden be made justifiable. For similar 
 reasons Cellamare, Spanish ambassador in France, was, in 1718, arrested, 
 his papers seized, and himself conducted to the frontier by a military 
 escort (6). So recently as 1848 Sir H. Bulwer, the British ambassador 
 in Spain, had his passports returned, and was requested to leave Spanish 
 territory by the government. Certain disturbances had taken place in 
 various parts of Spain, and the government persuaded themselves that 
 Sir H. Bulwer had lent his assistance to the disaffected. This pro- 
 ceeding caused diplomatic relations to be suspended between the two 
 countries during two years, and the dispute was only settled by the 
 mediation of the King of the Belgians (c). 
 
 If it appears that the ambassador has not fully entered upon his func- 
 tions, either by his credentials not having been presented, or by his not 
 having been fully invested with the character by his own country, he 
 cannot then claim the inviolability attached to regular ambassadors (d). 
 
 The wife and family, servants and suite, of the minister, 
 participate in the inviolability attached to his public character. 
 The secretaries of embassy and legation are especially entitled, 
 as official persons, to the privileges of the diplomatic corps, in 
 respect to their exemption from the local jurisdiction (e). 
 
 vol. ii. b. ii. ch. 9, 20. Bynkershoek, de Foro Competent. Legat. cap. 17, 
 18, 19. Vattel, liv. iv. ch. 7, 94102. Martens, Precis, &c., liv. vii. 
 ch. 5, 218. Ward's Hist, of the Law of Nations, vol. ii. ch. 17, pp. 291 
 334. Wheaton, Hist, of Law of Nations, pp. 250254. 
 
 (x) [Froude, Hist, of England, vol. x. p. 222, etseq. (ed. 166)]. 
 
 (y) [Ibid., vol. xi. p. 623]. 
 
 (?) [Phillimore, vol. ii. 164]. 
 
 (a) [Hist, of England, Mahon, vol. i. p. 388, etseq.}. 
 
 (b) [Ibid., vol. i. p. 484]. 
 
 (c) [Calvo, Droit International, vol. i. 523]. 
 
 (d) [See case of Marquis de la Chetardie. Calvo, Droit International, vol. i. 
 517. Case of Da Sa. 5 Howell, State Trials, 460]. 
 
 (e) Grotius, lib. ii. cap. 18, 8. Bynkershoek, cap. 15, 20. Vattel, liv. iv. 
 ch. 9, 120- -123. Martens, Precis, &c., liv. vii. ch. 5, 219; ch. 9, 234
 
 RIGHTS OF LEGATION. 287 
 
 The municipal laws of some, and the usages of most 
 nations require an official list of the domestic servants of 
 foreign ministers to be communicated to the secretary or 
 minister of foreign affairs, in order to entitle them to the 
 benefit of this exemption (/). 
 
 It follows from the principle of the extra-territoriality of 
 the minister, his family, and other persons attached to the 
 legation, or belonging to his suite, and their exemption from 
 the local laws and jurisdiction of the country where they 
 reside, that the civil and criminal jurisdiction over these 
 persons rests with the minister, to be exercised according to 
 the laws and usages of his own country. In respect to -civil 
 jurisdiction, both contentious and voluntary, this rule is, with 
 some exceptions, followed in the practice of nations. But in 
 respect to criminal offences committed by his domestics, 
 although in strictness the minister has a right to try and 
 punish them, the modern usage merely authorizes him 
 to arrest and send them for trial to their own country. He 
 may, also, in the exercise of his discretion, discharge them 
 from his service, or deliver them up for trial under the laws 
 of the State where he resides ; as he may renounce any other 
 privilege to which he is entitled by the public law (g). 
 
 The personal effects or movables belonging to the minister, ^ 22 ?- 
 within the territory of the State where he resides, are entirely f X the P 10 
 exempt from the local jurisdiction ; so, also, of his dwelling- minister's 
 
 J ' & house and 
 
 house; but any other real property, or immovables, of which property. 
 he may be possessed within the foreign territory, is subject to 
 its laws and jurisdiction. Nor is the personal property of 
 which he may be possessed as a merchant carrying on trade, or 
 in a fiduciary character, as an executor, c., exempt from the 
 operation of the local laws (/). 
 
 The question, how far the personal effects of a public 228 - 
 
 Discussion 
 minister are liable to be seized or detained, in order to between 
 
 237. Fcelix, 184. [Taylor v. Best, 14 C. B. 487; Dupont v. PicJwn, 4 
 Dallas (2nd ed.), 300.] 
 
 (/) Blackstone's Commentaries, vol. i. ch. 7. LL. of the United States, 
 vol. i. ch. 9, 26. 
 
 (g) Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, 124. Kutherforth's 
 Inst. vol. ii. b. ii. ch. 9, 20. Kliiber, Pt. II. tit. 2, 212214. Merlin, 
 Repertoire, tit. Minislre PuUique, sect. vi. 
 
 (h.) Vattel, liv. iv. ch. 8, 113115. Martens, Precis, &c., liv. vii. ch. 8, 
 217. Kluber, Pt. II. tit. 2, ch. 3, 210. Merlin, sect. v. iv. No. G.
 
 288 
 
 RIGHTS OF LEGATION. 
 
 the Ameri- 
 can and 
 Prussian 
 govern- 
 ments, re- 
 specting 
 the exemp- 
 tion of 
 public 
 ministers 
 from the 
 local juris- 
 diction. 
 
 Argument 
 of the 
 
 enforce the performance on his part, of the contract of hiring 
 of a dwelling-house, inhabited by him, has been recently dis- 
 cussed between the American and Prussian governments, in 
 a case, the statement of which may serve to illustrate the 
 subject we are treating. 
 
 The Prussian Civil Code declares, that " the lessor is 
 entitled, as a security for the rent and other demands arising 
 under the contract, to the rights of a Pfandglaubiger, upon 
 the goods brought by the tenant upon the premises, and there 
 remaining at the expiration of the lease." 
 
 The same code defines the nature of the right of 'a creditor 
 whose debt is thus secured. " A real right, as to a thing 
 belonging to another, assigned to any person as security for a 
 debt, and in virtue of which he may demand to be satisfied 
 out of the substance of the thing itself, is called Unterpfands- 
 Recht" (i). 
 
 Under this law the proprietor of the house in which the 
 minister of the United States accredited at the court of Berlin 
 resided, claimed the right of detaining the goods of the 
 minister found on the premises at the expiration of the lease 
 in order to secure the payment of damages alleged to be due 
 on account of injuries done to the house during the contract. 
 The Prussian government decided that the general exemp- 
 tion, under the law of nations, of the personal property of 
 foreign ministers from the local jurisdiction, did not extend 
 to this case, where, it was contended, the right of~detentiou 
 was created by the contract itself, and by the legal effect given 
 to it by the local law. In thus granting to the proprietor the 
 rights of a creditor whose debt is secured by hypothecation, 
 (Pfandgldubiger,) not only in respect to the rent, but as to 
 all other demands arising under the contract, the Prussian 
 Civil Code confers upon him a real right as to all the effects 
 of the tenant, which may be found on the premises at the 
 expiration of the lease, by means of which he may retain 
 them, as a security for all his claims derived from the 
 contract. 
 
 It was stated, by the American minister, that this decision 
 pkced the members of the corps diplomatique, accredited at 
 
 (i) Allgemeines Landrecht fur die Treussischen Staaten, Ft. I. tit. 21, 
 395, tit. 30, 1.
 
 RIGHTS OF LEGATION. 289 
 
 the Prussian court, on the same footing with the subjects of 
 the country, as to the right which the Prussian code confers 
 upon the lessor of distraining the goods of the tenant, to 
 enforce the performance of the contract. The only reason 
 alleged to justify such an exception to the general principle 
 of exemption was, that the right in question was constituted 
 by the contract itself. It was not pretended that such an 
 exception had been laid down by any writer of authority on 
 the law of nations ; and this consideration alone presented a 
 strong objection against its validity, it being notorious that 
 all the exceptions to the principle were carefully enumerated 
 by the most esteemed public jurists. Not only is such an 
 exception not confirmed by them, but it is expressly repelled 
 by these writers. Nor could it be pretended that the practice 
 of a single government, in a single case, was sufficient to 
 create an exception to a principle which all nations regarded 
 as sacred and inviolable. 
 
 Doubtless, by the Prussian code, and that of most other 
 nations, the contract of hiring gives to the proprietor the right 
 of seizing, or detaining the goods of the tenant, for the non- 
 payment of rent, or damages incurred by injuries done to the 
 premises. But the question here was, not what are the rights 
 conferred by the municipal laws of the country upon the pro- 
 prietor, in respect to the tenant, who is a subject of that 
 country ; but what are those rights in respect to a foreign 
 minister, whose dwelling is a sacred asylum ; whose person 
 and property are entirely exempt from the local jurisdiction ; 
 and who can only be compelled to perform his contracts by an 
 appeal to his own government ? Here the contract of hiring 
 constitutes, per se, the right in question, in this sense only, 
 that the law furnishes to one of the parties a special remedy 
 to compel the other to perform its stipulations. Instead of 
 compelling the lessor to resort to a personal action against 
 the tenant, it gives him a lien upon the goods found on the 
 premises. This lien may be enforced against the subjects of 
 the country, because their goods are subject to its laws and 
 its tribunals of justice ; but it cannot be enforced against 
 foreign ministers resident in the country, because they are 
 subject neither to the one nor to the other. 
 
 Let us suppose that the contract in question had been a
 
 290 RIGHTS OF LEGATION. 
 
 bill of exchange drawn by the minister, not in the character 
 of a merchant, but for defraying his ordinary expenses. The 
 laws of. every country, in such a case, entitle the holder of 
 the bill to arrest the person of his debtor, in case of non- 
 payment. It might be said, in the case supposed, that the 
 contract itself gives the right of arresting the person, with the 
 same reason that it was pretended, in the case in question, 
 that it gave the right of seizing the goods of the debtor. 
 
 In fact, there was no one privilege of which a public 
 minister might not be deprived, by the same mode of reason- 
 ing which was resorted to in order to deprive him of the 
 exemption to which he was entitled as to his personal effects. 
 But to deprive him of this right alone, would be to deprive 
 him of that independence and security which are indispensably 
 necessary to enable him to fulfil the duties he owes to his 
 own government. If a single article of his furniture may be 
 seized, it may all be seized, and the minister, with his family, 
 thus be deprived of the means of subsistence. If the sanctity 
 of his dwelling may be violated for this purpose, it may be 
 violated for any other. If his private property may be taken 
 upon this pretext, the property of his government, and even 
 the archives of the legation, may be taken upon the same 
 pretext. 
 
 230. The exemption of the goods of a public minister from every 
 Grotius f s P ec i es f seizure for debt, is laid down bv Grotius in the 
 following manner : 
 
 "As to what respects the personal effects (moUlia) of an 
 ambassador, which are considered as belonging to his person, 
 they are not liable to seizure, neither for the payment nor for 
 security of a debt, either by order of a court of justice, or, as 
 some pretend, by command of the sovereign. This, in my 
 judgment, is the soundest opinion ; for an ambassador, in 
 order to enjoy complete security, ought to be exempt from 
 every species of restraint, both as to his person, and as to 
 those things which are necessary for his use. If, then, he 
 has contracted debts, and if, which is usually the case, he 
 has no real property (immobilia) in the country, he should be 
 politely requested to pay, and if he refuses, resort must be 
 had to his sovereign " (A;). 
 
 (k) Grotius, de Jur. Bel. ac Pac. lib. i. cap. 18, 9.
 
 RIGHTS OP LEGATION. 291 
 
 We here perceive that this great man himself, both as a 
 public minister and public jurist, was decidedly of opinion 
 that the personal property of an ambassador could not be 
 seized, either for the payment or for security of a debt ; or, 
 according to the original text, Ad solutionem debiti aut 
 pignoris causa. Bynkershoek, in his treatise De Foro com- 
 petenti Legatorum, cites with approbation this passage of 
 Grotius. 
 
 Bynkershoek himself, in commenting upon the declaratory 231 
 edict of the States- General of the United Provinces, of B 
 1679, exempting foreign ministers from arrest, and their shoek. 
 effects from attachment, for debts contracted in the country, 
 observes : 
 
 " The declaration of the States-General does not materially 
 differ from the opinion of Grotius, which I have quoted in 
 the preceding chapter. To which we may add, that this 
 author states, that 'the effects of an ambassador cannot be 
 seized, either for payment or for security of a debt, because 
 they are considered as appertaining to his person. Respecting 
 this principle Antoine Mornac reports that, in the year 1608, 
 Henry IV., king of France, pronounced against the legality 
 of a seizure made at Paris, for the non-payment of rent, of 
 the goods of the Venetian ambassador. This decision has 
 been since constantly observed in every country. 
 
 "But this may be said to be carrying the privilege too far, 
 since the seizure of the effects of an ambassador is not so 
 much on account of the person as to a right in the thing thus 
 seized ; a right of which the proprietor cannot be deprived by 
 the ambassador." 
 
 This author had here anticipated the argument of the 
 Prussian government, to which he replies as follows : 
 
 " But far from unduly pressing the principle, by the effects 
 which are spoken of in the declaration of 1679 I understood 
 only personal effects, that is to say, those which serve for the 
 use of ambassadors (id est utensilia'), as I shall point out in 
 that part of this treatise where it will be necessary to speak 
 of their property. It is of these effects that I affirm, that 
 they are not, and never have been, according to the law of 
 nations, considered as in the nature of a pledge, to secure 
 the payment of what is due from an ambassador. I even 
 
 v 2
 
 292 RIGHTS OF LEGATION. 
 
 maintain that it is not lawful to seize them, either in order 
 to institute a suit or to execute a judicial sentence " (I). 
 
 In his sixteenth chapter Bynkershoek explains what he 
 means by those effects which serve for the use of ambassadors, 
 that is, utensilia. In this chapter he admits that the pro- 
 perty, both personal and real, of a public minister, may, in 
 some cases, be attached, to compel him to defend a suit com- 
 menced by those who might have a claim against him : " I 
 say the property (bona) in general, whether personal or real, 
 unless they appertain to the person of the ambassador and he 
 possess them, as ambassador ; in a word, all those things 
 without which he may conveniently perform the functions of 
 his office. I except, then, from the number of those goods 
 of the ambassador which may be thus attached, corn, wine, 
 oil, every kind of provisions, furniture, gold, toilette orna- 
 ments, perfumes, drugs, clothing, carpets and tapestry, 
 coaches, horses, mules, and all other things which may be 
 comprised in the terms of the Koman law, legati instructs et 
 cum instrumento." 
 
 In the following section he explains his doctrine, that cer- 
 tain effects of a public minister may be attached, in order to 
 institute against him a suit, and to compel him to defend it, 
 by showing that it is meant to be limited to the single case 
 where the minister assumes on himself the character of a 
 merchant, in which case the goods possessed by him, as/such, 
 may be attached for this purpose. "All these things/' says 
 he, " ought not, according to my view, to be excepted, unless 
 they are destined for the use of the ambassador and his 
 household. For it is not the same with corn, wine, and 
 oil, for example, which an ambassador may have in his 
 warehouses, for the purposes of trade ; nor with horses and 
 mules, which he may keep for the purpose of breeding and 
 selling." 
 
 232. Vattel is equally explicit as to the extent of the privilege in 
 
 Of Vattel. question. The only exception he admits to the general rule 
 
 is that of a public minister who engages in trade, in which 
 
 case his personal goods may be attached, to compel him to 
 
 answer to a suit. To this exception he annexes two condi- 
 
 (l) Bynkershoek, cle For. Legat., cap. ix. 9, 10.
 
 RIGHTS OF LEGATION. 293 
 
 tions, the latter of which was deemed decisive of the present 
 question. 
 
 "Let us subjoin two explanations of what has just been 
 said : 1. In case of doubt, the respect which is due to the 
 character of a public minister requires the most favourable 
 interpretation for the benefit of that character. I mean to 
 say that where there is reason to doubt whether an article is 
 really destined to the use of the minister and his household, 
 or whether it belongs to his stock in trade, the question must 
 be determined in favour of the minister ; otherwise there 
 might be danger of violating his privilege. 2. When I say 
 that the effects of a minister, which have no connection with 
 his character, and especially those belonging to his stock in 
 trade, may be attached, this must be understood on the sup- 
 position that the attachment is not grounded on any matter 
 relating to his concerns as minister ; as, for instance, for 
 supplies furnished to his household, for the rent of his 
 hotel, &c." (w). 
 
 In reply to these arguments and authorities it was urged, 233> 
 on behalf of the Prussian government, that if, in the present Prussia, 
 case, any Prussian authority had pretended to exercise a right 
 of jurisdiction, either over the person of the minister or his 
 property, the solution of the question would doubtless apper- 
 tain to the law of nations, and it must be determined 
 according to the precepts of that law. But the only question 
 in the present case could be, what are the legal rights estab- 
 lished by the contract of hiring, between the proprietor and 
 the tenant. To determine this question, there could be no 
 other rule than the civil law of the country where the contract 
 was made, and where it was to be executed, that is, in the 
 present case, the Civil Code of Prussia (n). 
 
 The controversy having been terminated, as between the 234 - 
 parties, by the proprietor of the house restoring the effects oftheques- 
 which had been detained, on the payment of a reasonable tieiK 
 compensation for the injury done to the premises, the 
 Prussian government proposed to submit to the American 
 government the following question : 
 
 (m) Vattel, Droit des Gens, liv. iv. ch. 8, 114. Mr. Wheaton to Baron 
 de Werther. Note verbale, 15 May, 1839. 
 
 (n) Baroii de Werther to Mr. Wheaton. Note verbale, 19 May, 1839.
 
 294 
 
 RIGHTS OF LEGATION. 
 
 235. 
 
 Question 
 proposed 
 by Prussia. 
 
 Reply of 
 
 United 
 
 States. 
 
 " If a foreign diplomatic agent, accredited near the govern- 
 ment of the United States, enters, of his own accord, and in 
 the prescribed forms, into a contract with an American citi- 
 zen ; and if, under such contract, the laws of the country 
 give to such citizen, in a given case, a real right (droit reel) 
 over personal property (biens mobiliers) belonging to such 
 agent : does the American government assume the right of 
 depriving the American citizen of his real right, at the simple 
 instance of the diplomatic agent relying upon his extra- 
 territoriality ? " 
 
 This question was answered on the part of the American 
 government, by assuming the instance contemplated by the 
 Prussian government to be that of an implied contract, grow- 
 ing out of the relation of landlord and tenant, by which the 
 former had secured to him, under the municipal laws of the 
 country, a tacit liypothek or lien upon the furniture of the 
 latter. It was taken for granted that there was no express 
 hypothecation, still less any giving in pledge, which implies 
 a transfer of possession by way of security for a debt. 
 
 This distinction was deemed important. There could be 
 no doubt that, in this last case, the pawnee has a complete 
 right, a real right, as it was called by the Prussian govern- 
 ment, or jus in re, not in the least aifected by diplomatic 
 immunities. And accordingly, this was the course pointed 
 out to creditors by Bynkershoek, who denies them all other 
 means of satisfying themselves out of the minister's personal 
 goods. Of course, these words were used with the proper 
 restriction, which confines them to the apparatus legationis, 
 or such as pass under the description of legatus instructus et 
 cum instrumento. 
 
 With these distinctions and qualifications, the American 
 government had no doubt that the view taken by its minister 
 of this question of privilege was entirely correct. The sense 
 of that government had been clearly expressed in the act of 
 Congress, 1790, which includes the very case of distress for 
 rent, among other legal remedies denied to the creditors of a 
 foreign minister. 
 
 That this exemption was not peculiar to the statute law of 
 this country, but was strictly juris gentium, appeared from 
 the precedents mentioned by the great public jurist just cited
 
 EIGHTS OF LEGATION. 295 
 
 in his treatise De Foro Legatorum, the great canon of this 
 branch of public law (o). 
 
 Besides this conclusive authority upon the very point in 
 question, Bynkershoek states the principle (out of Grotius) 
 that the personal goods of a foreign minister cannot be taken 
 by way of distress or pledge, and gives it the sanction of his 
 most emphatic assent (p). Indeed the whole scope of the 
 treatise 'referred to, went to establish this very doctrine. 
 
 But to consider it on principle. Three several questions 237. 
 would arise upon the inquiry propounded by the Prussian 
 government. 1st. Is the landlord's right, in such a case, a 
 real right properly so called ? 2nd. Admitting it to be so, 
 can it be asserted, consistently with Prussian municipal law, 
 against a foreign minister who has not voluntarily parted 
 with his possession, on an express contract, to secure pay- 
 ment of rent or damages ? 3rd. Supposing the municipal 
 law of Prussia to contemplate the case of a foreign minister, 
 can that law be enforced, in such a case, consistently with the 
 law of nations ? 
 
 There was, in all systems of jurisprudence, great difficulty 238. 
 in settling the legal category of the landlord's right. Pledge, 
 although not property, is certainly a real right ; but a mere 
 lien or hypothek, in which there is no transfer of possession, 
 is not a pledge. In England, and in the United States, the 
 right of landlords was originally a mere lieu, reducible by 
 
 (o) ' ' Quia hcec (bona) considerantur ut persons accessiones Et 
 
 secundum hsec Mornacius refert ad L. 2, 3, de Judic. Kegi Galliarum pla- 
 cuisse, anno 1608, male pro locario Parisiis Venetce rcipublicce legati mobilia 
 fuisse r&tenta; et const/inter ita usu est servatum dcinceps ubiqur, gentium. Sed 
 forte, dices, id minium esse, quia ea inobilium detentio non tarn fit ex causa 
 personse, quam jure in re, quod locatori competit in invcctis et illalis, quodqiw 
 jus, lege qucesitum, legatis aufcrre non possit. Sed tantuin abest, ut minium 
 dicamus, ut vel bona quorum memiuit d. Edictum auni 1679, non aliter iuter- 
 pretemur, quam bona mobilia, id est, utemsiliu, &c. Ha:c utensilia nego, ex 
 jure gentium, pignori esse, vel unquam fuisse, quin nee capi posse, vel ad 
 ordiendum judicium, vel ad servandum quod nobis dcbetur, vel ad exsequen- 
 dam rem judieatam. Et facile assentior Grotio, si de utcnsilibus accipias, 
 qua; ipse dixit, ea nempe pignoiis causa capi non posse, ncc per judiciorum 
 ordinem, nee manu regia, explosa sic distinctione, quce aliis olim, sed sine 
 ratione, placuerat." De For. Legal, cap. ix. 
 
 Compare the catalogue of the personal goods so privileged, id. cap. xvi. 
 
 (p) " Bona quoque legati mobilia, et qiue proinde habentur personse acces- 
 sio, pignoris causa, aut ad solutionem dtbiti, capi non posse, nee per judi- 
 ciorum ordinem, nee, quod quidam volunt, manu regia, verius est : nam 
 omnis coactio a legato abesse debet, tarn quse res ei necessarias, quam quae 
 personam tangit, quo plena ei sit securitas." Bynkershoek. de For. Legat. 
 cap. viii. Grotius, de Jur. Bel. ac Pac., lib. ii. cap. 18, 19.
 
 296 RIGHTS OF LEGATION. 
 
 distress into a right of pledge. In Scotland the same right 
 is sometimes called a right of property, and sometimes a 
 mere hypothek, springing out of a tacit contract. Without 
 pretending to determine precisely whether its origin ought 
 to be referred to the one or the other principle, (neither 
 perhaps heing fully adequate to account for all its effects,) it 
 is considered by the best writers as a right of hypothek, 
 convertible by a certain legal process into a real right of 
 pledge. 
 
 If this be a proper view of the subject, there was surely an 
 end of the question : for the process of conversion is as much 
 the exercise of jurisdiction, as the levying an execution ; and 
 the public minister is exempt from all jurisdiction whatever. 
 
 It was true that all hypothecations, or privileges upon 
 property, are classed by some writers under the head of real 
 rights, but this was by no means conclusive of the case under 
 consideration. In a conflict of rights, this might entitle the 
 privileged creditor, to preference in the distribution of an 
 inadequate fund, but the question was, how was he to assert 
 that preference ? By means of judicial process ? If so, he 
 is without remedy against one not subject to the jurisdiction, 
 except by open violence, which, of course, is not classed 
 among rights. Accordingly, privileges, and liens by- mere 
 operation of law, are usually considered as matters of remedy, 
 not of right ; as belonging to the lex fori, not to the essence 
 of the contract (g) . 
 
 It might, therefore, be considered as doubtful, a priori 
 whether, by the Prussian code, the right of the landlord 
 is a real right, to the effect, at least, of putting it on the 
 footing of property transferred by contract, for that was the 
 argument. 
 
 239. But suppose this to be the usual effect, by operation of 
 law, of the contract between landlord and tenant, does it 
 hold as against one not subject to the law ; not amenable to 
 the jurisdiction ; not, in legal contemplation, residing within 
 the country of the contract ? 
 
 By the supposition, it was an incident in law of the rela- 
 tion between the landlord and his tenant, and it turns upon 
 an implied contract. It was supposed that the tenant agreed 
 (q) Story, Conflict of Laws, 423456, 2nd ed.
 
 RIGHTS OF LEGATION. 297 
 
 to hire the house on the usual conditions ; but one of them 
 was, that if he failed to pay the rent, or indemnify for 
 damages done to the premises, the landlord should have a 
 remedy by distress. It was, therefore, inferred that it was 
 not the law, or the judge, but the tenant himself, who had 
 transferred, quasi contracts, this interest in his own property. 
 But if this reasoning was correct, why should it not apply in 
 the case of arrest and holding to bail ? or in any case of 
 attachment ? The consent might as well be implied here as 
 in favour of a landlord. Indeed, the same implication might 
 as reasonably be extended to all laws whatever, and foreign 
 ministers thus be held universally subject by contract to the 
 municipal jurisdiction. The presumption implied in the 
 contract under the law of the place, and binding on the 
 parties subject to the jurisdiction, is repelled by the immu- 
 nity and extraterritoriality of the public minister. He that 
 enters into a contract with another knows, or ought to know, 
 his condition. So says Ulpian, (1. 19, pref. de E. J.), and 
 the landlord who lets his house to a foreign minister, waives 
 his remedy under the law from which he knows that minister 
 is exempt. 
 
 The American government was therefore inclined, in the 
 absence of any authority to the contrary, to think that the 
 Prussian municipal law, properly interpreted, did not, in fact, 
 authorize any such pretension as that set up by the landlord, 
 in the present instance. 
 
 But even supposing it did authorize the pretension, it 240. 
 ought no more to derogate from the established law of nations 
 in this case, than in that of personal arrest. The authorities 
 cited above seemed to the American government entirely con- 
 clusive as to this point ; and it was greatly confirmed in this 
 view of the subject by the act of Congress declaratory of the 
 law of nations, and by the opinion of other governments. In 
 short, all the reasons on which diplomatic immunities have 
 been asserted, and are now universally allowed, seem just as 
 applicable to the case of liens and hypothecations in favour of 
 landlords, as to remedies of any other kind. Indeed, nothing 
 could afford a better practical illustration of this than the 
 attempt of the landlord in the present case, by means of his 
 pretended lien, to force the minister to pay damages assessed
 
 2.98 RIGHTS OF LEGATION. 
 
 at his discretion, for an injury proved only by his own 
 allegation (?) 
 
 241. The Prussian government declared, that its opinion upon 
 the point in controversy remained unchanged by the above 
 reasoning, and the authorities adduced in support of it. Ac- 
 cording to its view, the question was not whether the lessor 
 had a right to retain a portion of the effects belonging to the 
 lessee, and found on the premises at the expiration of the 
 contract, as security for the damages incurred by its breach ; 
 but whether the lessor, by exerting his right of retention, 
 had committed a violation of the privileges of diplomatic 
 agents, or, at least, a punishable act ; and if, for this reason, 
 he could be compelled, summarily, and before the competent 
 judge had pronounced upon his claim, to restore the effects 
 thus retained. This last question being resolved negatively, 
 the decision of the first must necessarily be reserved to the 
 competent tribunals. 
 
 The privilege of extraterritoriality consists in the right of 
 the diplomatic agent to be exempt from all dependence on 
 the sovereign power of the country, near the government of 
 which he is accredited. It follows, that the State cannot 
 exercise against him any act of jurisdiction whatsoever, and 
 as by a natural consequence of this principle, the tribttfials of 
 the country have, in general, no right to take cognizance of 
 controversies in which foreign ministers are concerned, neither 
 are they authorized, in the particular case of a controversy 
 arising out of a contract of hiring, to ordain the seizure of 
 the effects of a public minister. 
 
 If, then, the privilege of extraterritoriality regards only the 
 relations which subsist between the diplomatic agent and the 
 sovereign power of the country where he resides, it is also 
 evident that a violation of this privilege can only be com- 
 mitted by the public authorities of that country, and not by a 
 private person. The legal relations of the subjects of the 
 country are in no respect directly changed by the principle of 
 extraterritoriality ; it is only indirectly that this principle can 
 operate upon those relations ; so that in respect to citizens' 
 controversies, the subject is not entitled to invoke the inter- 
 position of the authorities of his own country against the 
 (r) Mr. Legare's Despatch to Mr. Wheaton, 9th Juiie, 1843.
 
 RIGHTS OF LEGATION. 299 
 
 foreign minister upon whom he may have a claim for redress, 
 and if he would commence a suit against him, he must 
 resort to the tribunals of the minister's country. If, on the 
 other hand, the subject can do himself justice, without 
 having recourse to the authorities of his own country, his 
 position in respect to the foreign minister is absolutely the 
 same as if the controversy had arisen with one of his own 
 fellow- citizens . 
 
 It was hardly necessary to observe that, in such a case, the 
 party must keep within the limits of what is generally per- 
 mitted. If he should resort to violence, he would render 
 himself guilty of an infraction of the law, and would be 
 punishable in the same manner as if the adverse party were 
 an inhabitant of the country. 
 
 In the controversy now in question, no authority dependent 
 on the Prussian government had participated, either directly 
 or indirectly, in the seizure of the effects of the American 
 minister ; the proprietor of the house having retained them 
 by his own proper act, there was then no violation of the 
 privilege of extraterritoriality. There was no proof of any 
 act of violence having been committed by him, and the mere 
 act of retention could not be considered as an unlawful act. 
 
 On principle, every proprietor of a house, even where it is 
 let to another person, remains in possession of his property. 
 It follows, that the effects brought on to the premises by the 
 tenant may be considered, in some respects, as in possession 
 of the landlord. It is for this reason that the municipal law 
 of Prussia, as well as that of most other European States, 
 gives to the landlord a lien upon the goods of the tenant, as a 
 security for the payment of the rent. The question how far this 
 right, founded upon the positive law of a particular country , can 
 be exerted against a foreign minister, may be dismissed from 
 consideration ; since the act of retention cannot be regarded 
 as an unlawful and punishable act, and, in such a case, it belongs 
 to the tribunals of justice to pronounce judgment upon the 
 rights which the landlord may have acquired by the retention (s). 
 
 The person and personal effects of the minister are not 242. 
 
 Duties and 
 
 (s) Baron de Bulow's Letter to Mr. Wheaton, 5th July, 1844. taxes> 
 
 See an able review of the above controversy by M. Fcelix, the learned editor 
 of the Revue du Droit Franyais et Etranger, tome ii. p. 31.
 
 300 RIGHTS OF LEGATION. 
 
 liable to taxation. He is exempt from the payment of duties 
 on the importation of articles for his own personal use and 
 that of his family. But this latter exemption is, at present, 
 by the usage of most nations, limited to a fixed sum during 
 the continuance of the mission. He is liable to the payment 
 of tolls and postages. The hotel in which he resides, though 
 exempt from the quartering of troops, is subject to taxation, 
 in common with the other real property of the country, 
 whether it belongs to him or to his government. And though, 
 in general, his house is inviolable, and cannot be entered, 
 without his permission, by police, custom-house, or excise 
 officers, yet the abuse of this privilege, by which it was con- 
 verted in some countries into an asylum for fugitives from 
 justice, has caused it to be very much restrained by the recent 
 usage of nations (). 
 243. The practice of nations has also extended the inviolability 
 
 Messengers . . . . * 
 
 and of public ministers to the messengers and couriers, sent with 
 
 couriers. despatches to or from the legations established in different 
 countries. They are exempt from every species of visitation 
 and search, in passing through the territories of those powers 
 with whom their own government is in amity. For the/pur- 
 pose of giving effect to this exemption, they must be p,rovided 
 with passports from their own government, attesting their 
 official character ; and, in the case of despatches sent by sea, 
 the vessel or aviso must also be provided with a commission 
 or pass. In time of war, a special arrangement, by means of 
 a cartel or flag of truce, furnished with passports, not only 
 from their own government, but from its enemy, is necessary, 
 for the purpose of securing these despatch vessels from inter- 
 ruption, as between the belligerent powers. But an ambas- 
 sador, or other public minister, resident in a neutral country 
 for the purpose of preserving the relations of peace and amity 
 between the neutral State and his own government, has a 
 right freely to send his despatches in a neutral vessel, w 7 hich 
 cannot lawfully be interrupted by the cruisers of a power at 
 war with his own country (u). 
 
 (t) Vattel, liv. iv. ch. 9, 117, 118. Martens, Precis, &c., liv. vii. ch. 5, 
 220. Manuel Diplomatique, ch. 3, 30, 31. Merlin, Repertoire, tit. 
 Ministre Publique, sect v v. 5, Nos. 2, 3. 
 
 (u) Vattel, liv. iv. ch. 9, 123. Martens, Precis, &c., liv. vii. ch. 13, 
 250. The, Caroline, 6 C. Rob. 466.
 
 RIGHTS OF LEGATION. 301 
 
 The opinion of public jurists appears to be somewhat 244. 
 
 divided upon the question of the respect and protection to muster 
 
 which a public minister is entitled, in passing through the v^ n s 
 
 territories of a State other than that to which he is ac- the ter- 
 
 credited. . The inviolability of ambassadors, under the law of JjjJjJJJe? 
 
 nations, is understood by Grotius and Bynkershoek, among State than 
 
 others, as binding only on those to w r hom they are sent, and w hich lie 
 
 by whom they are received (x}. "Wicquefort, in particular, is ac ' , 
 
 - 1 * credited. 
 
 who has ever been considered as the stoutest champion of 
 
 ambassadorial rights, asserts that the assassination of the 
 ministers of the French king, Francis I., in the territories of 
 the Emperor Charles V., though an atrocious murder, was 
 no breach of the law of nations, as to the privileges of am- 
 bassadors. It might be regarded as a violation of the right 
 of innocent passage, aggravated by the circumstance of the 
 dignified character of the persons on whom the crime was 
 committed, and might even be considered a just cause of 
 war against the emperor, without involving the question of 
 protection in the character of ambassador, which arises ex- 
 clusively from a legal presumption which can only exist 
 between the sovereigns from and to whom he is sent (?/). 
 
 Vattel, on the other hand, states that passports are 345, 
 necessary to an ambassador, in passing through different y^j 011 
 territories on his way to his destined post, in order to make 
 known his public character. It is true that the sovereign to 
 whom he is sent is more especially bound to cause to be 
 respected the rights attached to that character ; but he is not 
 the less entitled to be treated, in the territory of a third 
 power, with the respect due to the envoy of a friendly sove- 
 reign. He is, above all, entitled to enjoy complete personal 
 security ; to injure and insult him would be to injure and 
 insult his sovereign and entire nation ; to arrest him, or 
 commit any other act of violence against his person, would be 
 to infringe the rights of legation which belong to every 
 sovereign. Francis I. was therefore fully justified in com- 
 plaining of the assassination of his ambassadors, and, as 
 Charles V. refused satisfaction, in declaring war against him. 
 
 (x) Grotius, de Jur. Bel. ac Tac. lib. ii. cap. 18, 5. Bynkershoek, tie 
 Foro Comp. Legat. cap. ix. 7. 
 
 (y) Wicquefort, de I'AmbassadeUT, Hv. i. 29, pp. 433439.
 
 RIGHTS OF LEGATION. 
 
 " If an innocent passage, with complete security, is due to a 
 private individual, with still more reason is it due to the 
 public minister of a sovereign, who is executing the orders of 
 his master, and travelling on the business of his nation. I 
 say an innocent passage ; for if the journey of the minister 
 is liable to just suspicion, as to its motives and objects; if 
 the sovereign, through whose territories he is about to pass, 
 has reason to apprehend that he may abuse the liberty of 
 entering them for sinister purposes, he may refuse the 
 passage. But he cannot maltreat him, or suffer others to 
 maltreat him. If he has not sufficient reasons for refusing 
 the passage, he may take such precautions as are necessary 
 to prevent the privilege being abused by the minister " (z). 
 
 He afterwards limits this right of passage to the ambassa- 
 dors of sovereigns, with whom the State through which the 
 attempt to pass is, at the time, in the relations of peace and 
 amity ; and adduces, in support of this limitation of the 
 right, the case of Marshal Belle-Isle, French ambassador at 
 the Prussian court, in 1744, (France and Great Britain being 
 then at war,) who, in attempting to pass through Hanover, 
 was arrested and carried off a prisoner to England (a). 
 246. Bynkershoek maintains that ambassadors, passing through 
 odT ker " tlie territories of another State than that to which they are 
 accredited, are amenable to the local jurisdiction, both civil 
 and criminal, in the same manner with other aliens, /who owe 
 a temporary allegiance to the State. He interprets tW-edict 
 of the States- General, of 1679, exempting from arrest " the 
 persons, domestics, and effects of ambassadors, Her te lande 
 komende, residerende of passerende," as extending only to 
 those public ministers actually accredited to their High 
 Mightinesses. He considers the last-mentioned term pas- 
 serende as referring not to those who, coming from abroad, 
 merely pass through the territories of the State in order to 
 proceed to another country, but to those only who are about 
 to leave the State where they have been resident as ministers 
 accredited to its government (b). 
 
 (z) Vattel, Droit des Gens, liv. iv. ch. 7, 84, 85. 
 
 (a) Ch. de Martens, Causes Celebres du Droit des Gens, tome i. p. 310. 
 
 (b) Bynkershoek, de For. Legat. cap.'ix. Wheaton, Hist. Law of Nations, 
 p. 243.
 
 RIGHTS OF LEGATION. 303 
 
 This appears to Merlin to be a forced interpretation. " The n . 
 
 Of Merlin. 
 word passer in French, and passer ende in Dutch," says he, 
 
 " was never used to designate a person returning from a given 
 place ; but is applicable to one who, having arrived at that 
 place, does not stop there, but proceeds on to another. We 
 must, therefore, conclude that the law in question attributes 
 to ambassadors who merely pass through the United Provinces 
 the same independence with those who are there resident. If 
 it be objected, as Bynkershoek does object, that the States- 
 General (that is, the authors of this very law) caused to be 
 arrested, in 1717, the Baron de Gortz, ambassador of Sweden 
 at the court of London, at the request of George I., against 
 the security of whose crown he had been plotting, the answer 
 to this example is furnished by Bynkershoek himself. ' The 
 only reason,' says he, ' alleged by the States- General for this 
 proceeding was, that this ambassador had not presented to 
 them his letters of .credence.' This reason (continues Merlin) 
 is not the less conclusive for being the only one alleged by 
 the States-General. When it is said that an ambassador is 
 entitled, in the territories through which he merely passes, to 
 the independence belonging to his public character, it must bo 
 understood with this qualification, that he travels as an ambas- 
 sador ; that is to say, after having caused himself to be 
 announced as such, and having obtained permission to pass in 
 that character. This permission places the sovereign, by 
 whom it has been granted, under the same obligation as if 
 the public minister had been accredited to and received by 
 him. Without this permission, the ambassador must be con- 
 sidered as an ordinary traveller, and there is nothing to pre- 
 vent his being arrested for the same causes which would 
 justify the arrest of a private individual " (c). 
 
 To these observations of the learned and accurate Merlin it 
 may be added, that the inviolability of a public minister in 
 this case depends upon the same principle with that of his 
 sovereign, coming into the territory of a friendly State by the 
 permission, express or implied, of the local government. 
 Both are equally entitled to the protection of that govern- 
 ment, against every act of violence and every species of 
 restraint, inconsistent with their sacred character. We have 
 (c) Merlin, Repertoire, tit. Ministre Pitblique, sect. v. 3, Nos. 4, 1 2.
 
 304 EIGHTS OF LEGATION. 
 
 used the term permission, express or implied ; because a public 
 minister accredited to one country who enters the territory of 
 another, making known his official character in the usual 
 manner, is as much entitled to avail himself of the permis- 
 sion which is implied from the absence of any prohibition, as 
 would be the sovereign himself in a similar case (d). 
 248. A minister resident in a foreign country is entitled to the 
 religious privilege of religious worship in his own private chapel, ac- 
 worship. cording to the peculiar forms of his national faith, although 
 it may not be generally tolerated by the laws of the State 
 where he resides. Even since the epoch of the Reformation, 
 this privilege has been secured, by convention or usage, 
 between the Catholic and Protestant nations of Europe. It 
 is also enjoyed by the public ministers and consuls from the 
 Christian powers in Turkey and the Barbary States. The 
 increasing spirit of religious freedom and liberality has gra- 
 dually extended this privilege to the establishment, in most 
 countries, of public chapels, attached to the different foreign 
 embassies, in which not only foreigners of the same nation, but 
 even natives of the country of the same religion, are allowed 
 the free exercise of their peculiar worship. This does not, 
 in general, extend to public processions, the use of bells, 
 or other external rites celebrated beyond the walls of the 
 chapel (e}. 
 
 249. Consuls are not public ministers. Whatever protection 
 entitled to they ma J ^ e entitled to in the discharge of their officiat-duties, 
 the pe- an( j whatever special privileges may be conferred upon them 
 privileges by the local laws and usages, or by international compact, they 
 are not entitled, by the general laws of nations, to the peculiar 
 immunities of ambassadors. No State is bound to permit the 
 residence of foreign consuls, unless it has stipulated by con- 
 vention to receive them. They are to be approved and ad- 
 mitted by the local sovereign, and, if guilty of illegal or im- 
 proper conduct, are liable to have the exequatur, which is 
 granted them, withdrawn, and may be punished by the laws 
 of the State where they reside, or sent back to their own 
 country, at the discretion of the Government which they have 
 
 (d) Vide supra, Pt. II. ch. 2, 95. 
 
 (e} Vattel. liv. iv. ch. 7, 104. Martens, Precis, &c., liv. vii. ch. 6, 222 
 
 2 - 26. Kliiber, Droit des Gens Moderne de 1'Europe, Pt. II. tit. ii. ch. 3, 
 
 $5 215, 216.
 
 RIGHTS OF LEGATION. 305 
 
 offended. In civil and criminal cases, they are subject to the 
 local law in the same manner with other foreign residents 
 owing a temporary allegiance to the State (/). 
 
 Sir Robert Phillimore says that " The privileges of consuls, so far as 249a. 
 
 they are derived from the country to which they are sent, are generally " nvile gs 
 . . . f , of consuls, 
 
 speaking, an exemption from any personal tax, and generally from the 
 
 liability to have soldiers quartered in their houses. They are usually 
 allowed to grant passports to the subjects of their own country, living 
 within the range of their consulate, but not to foreigners. As a general 
 rule, the muniments and papers of the consulate are inviolable, and under 
 no pretext to be seized or examined by the local authorities "(j/). There 
 have been numerous judicial decisions on this subject. The general 
 result of the English, American, and French cases establishes that 
 consuls have certain privileges, but that they are not diplomatic officers, 
 and that they cannot claim any of the immunities accorded specially to 
 members of the diplomatic service (/i). 
 
 A remarkable case of the withdrawal of a consul's exequatur took 249 b. 
 place in America in 1861. In order to protect British commerce, Her ^ asc 
 Majesty's Government were desirous that the Confederates should 
 observe the last three articles of the Declaration of Paris, and accord- 
 ingly Mr. Bunch, the British Consul at Charleston, was instructed 
 to communicate this desire of Her Majesty's Government to the Con- 
 federate authorities. The United States thereupon demanded that Mr. 
 Bunch should be removed from his office, on the ground that the law 
 of the United States forbad any person, not specially appointed, from 
 counselling, advising, &c., in any political correspondence with the 
 government of any foreign State, in relation to any disputes or con- 
 troversies with the United States, and that Mr. Bunch ought to have 
 known of this law, and to have communicated it to his government 
 before obeying their instructions. It was also urged that the proper 
 agents to make known the wishes of a foreign government were its 
 diplomatic and not its consular officers. On these grounds Mr. Bunch's 
 exequatur was withdrawn (i). 
 
 The mission of a foreign minister resident at a foreign 250. 
 court, or at a congress of ambassadors, may terminate during t ; on O f 
 his life in one of the following modes : public 
 
 o rmceinn 
 
 mission. 
 
 (/) Wicquefort, de 1'Ambassadcur, liv. i. 5. Bynkershoek, cap. 10. 
 Martens, Precis, &c., liv. iv. ch. 3, 148. Kent's Comment., vol. i. pp. 43 
 45, 5th ed. Fujlix, Droit Int. Prive, 191. 
 
 (g) [Phillimore, vol. ii. 248. Fynn, The British Consul Abroad, p. 17]. 
 
 (h) [ Viveash v. Becker, 3 M. & S. 284 ; Clark \. Cretico, 1 Taunt. 186 ; 
 Aspimvall v. Queen's Proctor, 2 Curteis, 241; Sorensen v. Reg. 11 Moo. P. C. 
 141; The Octavic, 33 L. 3. Aclm. 115; Davis v. Packhard, 7 Peters, 276; St. 
 Luke's Hospital v. Barklcy, 3 Blatchford, 259. Calvo. Droit Int. vol. ii. 
 485]. 
 
 (i) [Mr. Adams to Earl Busscll, 21st Nov. 1861. U. S. Uipl. Cor., 1862, 
 P. !] 
 
 X
 
 306 RIGHTS OF LEGATION. 
 
 1. By the expiration of the period fixed for the duration of 
 the mission ; or, where the minister is constituted ad interim 
 only, by the return of the ordinary minister to his post. In 
 either of these cases, a formal recall is unnecessary. 
 
 2. When the object of the mission is fulfilled, as in the 
 case of embassies of mere ceremony ; or where the mission is 
 special, and the object of the negotiation is attained or has 
 failed. 
 
 3. By the recall of the minister. 
 
 4. By the decease or abdication of his own sovereign, or 
 the sovereign to whom he is accredited. In either of these 
 cases it is necessary that his letters of credence should be 
 renewed ; which, in the former instance, is sometimes done 
 in the letter of notification written by the successor of the 
 deceased sovereign to the foreign prince at whose court the 
 minister resides. In the latter case he is provided with new 
 letters of credence ; but where there is reason to believe that 
 the mission will be suspended for a short time only, a negotia- 
 tion already commenced may be continued with the same 
 minister confidentially sub spe rati. 
 
 5. When the minister, on account of any violation of the 
 law of nations, or any important incident in the course of his 
 negotiation, assumes on himself the responsibility of declaring 
 his mission terminated. 
 
 6. When, on account of the minister's miscohduct or the 
 measures of his government, the court at which he resides 
 thinks fit to send him away without waiting for his recall. 
 
 7. By a change in the diplomatic rank of the minister. 
 When, by any of the circumstances above mentioned, the 
 
 minister is suspended from his functions, and in whatever 
 manner his mission is terminated, he still remains entitled to 
 all the privileges of his public character until his return to 
 his own country (&). 
 
 251. A formal letter of recall must be sent to the minister by 
 
 recalL nis government: 1. Where the object of his mission has 
 
 been accomplished, or has failed. 2. Where he is recalled 
 
 from motives which do not affect the friendly relations of the 
 
 two governments. 
 
 (Jc) Martens, Manuel Diplomatique, ch. 7, 59 ; ch. 2, 15. Precis, &c., 
 liv. vii. ch. 9, 232. Vattel, liv. iv. ch. 9, 126.
 
 RIGHTS OF LEGATION. 307 
 
 In these two cases, nearly the same formalities are observed 
 as on the arrival of the minister. He delivers a copy of his 
 letter of recall to the minister of foreign affairs, and asks an 
 audience of the sovereign, for the purpose of taking leave, 
 At this audience the minister delivers the original of his letter 
 of recall to the sovereign, with a complimentary address 
 adapted to the occasion. 
 
 If the minister is recalled on account of a misunderstanding 
 between the two governments, the peculiar circumstances of 
 the case must determine whether a formal letter of recall is 
 to be sent to him, or whether he may quit the residence 
 without waiting for it ; whether the minister is to demand, 
 and whether the sovereign is to grant him, an audience of 
 leave. 
 
 Where the diplomatic rank of the minister is raised or 
 lowered, as where an envoy becomes an ambassador, or an 
 ambassador has fulfilled his functions as such, and is to 
 remain as a minister of the second or third class, he presents 
 his letter of recall, and a letter of credence in his new 
 character. 
 
 Where the mission is terminated by the death of the 
 minister, his body is to be decently interred, or it may be 
 sent home for interment ; but the external religious cere- 
 monies to be observed on this occasion depend upon the laws 
 and usages of the place. The secretary of legation, or, if 
 there be no secretary, the minister of some allied power, is 
 to place the seals upon his effects, and the local authorities 
 have no right to interfere, unless in case of necessity. All 
 questions respecting the succession ab intestato to the 
 minister's movable property, or the validity of his testa- 
 ment, are to be determined by the laws of his own coun- 
 try. His effects may be removed from the country where 
 he resided, without the payment of any droit d'aubaine or 
 detraction. 
 
 Although in strictness the personal privileges of the minister 
 expire with the termination of his mission by death, the 
 custom of nations entitles the widow and family of the de- 
 ceased minister, together with their domestics, to a contin- 
 uance, for a limited period, of the same immunities which 
 they enjoyed during his lifetime. 
 
 x 2
 
 308 RIGHTS OF LEGATION. 
 
 It is the usage of certain courts to give presents to foreign 
 ministers on their recall, and on other special occasions. 
 Some governments prohibit their ministers from receiving 
 such presents. Such was formerly the rule observed by the 
 Venetian Eepublic, and such is now the law of the United 
 States (Q. 
 
 (I) Martens, Precis, &c., liv.vii. ch. 10, 240245. Manuel Diplomatique, 
 ch. 7, 6065.
 
 CHAPTER II. 
 
 EIGHTS OF NEGOTIATION AND TEEATIES. 
 
 THE power of negotiating and contracting public treaties 252. 
 between nation and nation exists in full vigour in every sove- contracting 
 
 reign State which has not parted with this portion of its 
 
 * how limited 
 
 sovereignty, or agreed to modify its exercise by compact with or modi- 
 other States. fied - 
 
 Semi-sovereign or dependent States have, in general, only 
 a limited faculty of contracting in this manner ; and even 
 sovereign and independent States may restrain or modify this 
 faculty by treaties of alliance or confederation 'with others. 
 Thus the several States of the North American Union are 
 expressly prohibited from entering into any treaty with 
 foreign powers, or with each other, without the consent of the 
 Congress ; whilst the sovereign members of the Germanic 
 Confederation formerly retained the power of concluding 
 treaties of alliance and commerce, not inconsistent with the 
 fundamental laws of the Confederation (a). 
 
 The constitution or fundamental law of every particular 
 State must determine in whom is vested the power of nego- 
 tiating and contracting treaties with foreign powers. In 
 absolute, and even in constitutional monarchies, it is usually 
 vested in the reigning sovereign. In republics, the chief 
 magistrate, senate, or executive council is intrusted with the 
 exercise of this sovereign power. 
 
 No particular form of words is essential to the conclusion 253 
 and validity of a binding compact between nations. The " of 
 mutual consent of the contracting parties may be given ex- 
 pressly or tacitly ; and in the first case, either verbally or in 
 writing. It may be expressed by an instrument signed by 
 the plenipotentiaries of both parties, or by a declaration, and 
 
 (a) See Pt. I. ch. 2, 47, et scq.
 
 310 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 counter declaration, or in the form of letters or notes ex- 
 changed between them. But modern usage requires that 
 verbal agreements should be, as soon as possible, reduced to 
 writing in order to avoid disputes ; and all mere verbal com- 
 munications preceding the final signature of a written con- 
 vention are considered as merged in the instrument itself. 
 The consent of the parties may be given tacitly, in the case 
 of an agreement made under an imperfect authority, by acting 
 under it as if duly concluded (b). 
 
 254. There are certain compacts between nations which are 
 
 tmces/and concluded, not in virtue of any special authority, but in the 
 Sns Ula " exercise ojf? a general implied power confided to certain public 
 agents, as incidental to their official stations. Such are the 
 official acts of generals and admirals, suspending or limiting 
 the exercise of hostilities within the sphere of their respective 
 military or naval commands, by means of special licenses to 
 trade, of cartels for the exchange of prisoners, of truces for 
 the suspension of arms, or capitulations for the surrender of 
 a fortress, city, or province. These conventions do not, in 
 general, require the ratification of the supreme power of the 
 State, unless such a ratification be expressly reserved in the 
 act itself (c). 
 
 255. Such acts or engagements, when made without authority, 
 
 or exceeding the limits of the authority under which they 
 purport to be made, are called sponsions. These conventions 
 must be confirmed by express or tacit ratification^_JPhe 
 former is given in positive terms, and with the usual forms ; 
 the latter is implied from the fact of acting under the agree- 
 ment as if bound by its stipulations. Mere silence is not 
 sufficient to infer a ratification by either party, though good 
 faith requires that the party refusing it should notify its de- 
 
 (b) Martens, Precis, liv. ii. ch. 2, 49, 51, 65. Heffter, 87. 
 
 The Roman civilians arranged all international contracts into three classes. 
 1. Pactiones. 2. Sponsiones. 3. Fcedera. The latter were considered the 
 most solemn ; and Gaius, in the recently discovered fragments .of his Insti- 
 tutes, speaking of the supposition of a treaty of peace concluded in the simple 
 form of a mere pactio, says: "Dicitur uno casu hoc verbo (Spondesne ? 
 Spondeo.) peregrinum quoque obligari posse, velut si Imperator noster 
 Principem alicujus peregrini populi de pace ita interroget : Pacem futuram 
 spondes ? vel ipse eodem modo interrogetur, quod nimium subtiliter dictum 
 est ; quia si quid adversus pactionem fiat, uon ex stipulatu agitur, sed jure 
 belli res vindicatur." (Comm. iii. 94.) 
 
 (c) Grotius, de JUT. Bel. ac Pac. lib. iii. cap. 22, 68. Vattel, Droit 
 des Gens, liv. ii. ch. 14, 207.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 311 
 
 termination to the other party, in order to prevent the latter 
 from carrying its own part of the agreement into effect. If, 
 however, it has been totally or partially executed by either 
 party, acting in good faith upon the supposition that the 
 agent was duly authorised, the party thus acting is entitled 
 to be indemnified or replaced in his former situation (d). 
 
 As to other public treaties : in order to enable a public 25e - 
 . . , ,. ,. , ,. n , , . Full power 
 
 minister or other diplomatic agent to conclude and sign a and ratifi- 
 treaty with the government to which he is accredited, he must catlon - 
 be furnished with a full power, independent of his general 
 letter of credence. 
 
 Grotius, and after him Puffendorf, consider treaties and 257. 
 conventions, thus negotiated and signed, as binding upon the O f GrotUis 
 sovereign in whose name they are concluded, in the same and Puffeu- 
 manner as any other contract made by a duly authorised agent 
 binds his principal, according to the general rules of civil 
 jurisprudence. Grotius makes a distinction between the pro- 
 curation which is communicated to the other contracting 
 party, and the instructions which are known only to the prin- 
 cipal and his agent. According to him, the sovereign is bound 
 by the acts of his ambassador, within the limits of his patent 
 full-power, although the latter may have transcended or 
 violated his secret instructions (e). 
 
 This opinion of the earlier public jurists, founded upon the 
 analogies of the Eoman law respecting the contract of man- 
 date or commission, has been contested by more recent 
 writers. 
 
 Bynkershoek lays down the true principles applicable to 258. 
 this subject, with that clearness and practical precision which i> ynkers . 
 distinguish the writings of that great public jurist. In the lek. 
 second book of his Qutestiones Juris Piiblici (cap. vii.), he 
 propounds the question, whether the sovereign is bound by 
 
 (d) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, 16 ; lib. iii. cap. 22, 
 13. Vattel, Droit des Gens, liv. ii. ch. 14, 209212. Rutherforth's 
 last. b. ii. ch. 9, 21. 
 
 (e) " Et in general! pnepositione accidere potest ut nos obliget qui prrepo- 
 situs est, agendo contra voluntatem nostram sibi soli signineatum : quia hi 
 distincti sunt actus volendi : unus, quo nos obligamus ratum habituros 
 quicquid ille in tali negotiorum genere fecerit ; alter, quo ilium nobis obli- 
 gamus, ut non agat nisi ex prsescripto, sibi 11011 aliis cognitb. Quod notandum 
 est ad ea quas legati promittuut pro regibus ex vi instrument! procuratorii, 
 exeedendo arcuna inundata." Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xL 
 12. Putfendorf, de Jur. Natur<e et Gent. lib. iii. cap. ix. 2.
 
 312 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 the acts of his minister, contrary to his secret instructions. 
 According to him, if the question were to be determined by 
 the ordinary rules of private law, it is certain that the prin- 
 cipal is not bound where the agent exceeds his powers. But 
 in the case of an ambassador, we must distinguish between 
 the general full-power which he exhibits to the sovereign to 
 whom he is accredited, and his special instructions, which he 
 may, and generally does retain, as a secret between his own 
 sovereign and himself. He refers to the opinion of Albericus 
 Gentilis (de Jure Belli, lib. iii. cap. xiv.), and that of Grrotius 
 above cited, that if the minister has not exceeded the autho- 
 rity given in his patent credentials, the sovereign is bound 
 to ratify, although the minister may have deviated from his 
 secret instructions. Bynkershoek admits that if the creden- 
 tials are special, and describe the particulars of the authority 
 conferred on the minister, the sovereign is bound to ratify 
 whatever is concluded in pursuance of this authority. But 
 the credentials given to plenipotentiaries are rarely special, 
 still more rarely does the secret authority contradict the 
 public full-power, and most rarely of all does a minister dis- 
 regard his secret instructions (/). But what if he should 
 disregard them ? Is the sovereign bound to ratify in pur- 
 suance of the promise contained in the full-power ? According 
 to Bynkershoek, the usage of nations, at the time when he 
 wrote, required a ratification by the sovereign to give validity 
 to treaties concluded by his minister, in every instkaee^except 
 in the very rare case where the entire instructions were con- 
 tained in the patent full-power. He controverts the position 
 of Wicquefort (VA mbassadeur et ses Fonctions, liv. 2, 15), 
 condemning the conduct of those princes who had refused to 
 ratify the acts of their ministers on the ground of their con- 
 travening secret instructions. The analogies of the Koraan 
 law, and the usages of the Roman people, were not to be con- 
 sidered as an unerring guide in this matter, since time had 
 gradually worked a change in the usage of nations, which 
 constitutes the law of nations ; and Wicquefort himself, in 
 another passage, had admitted the necessity of a ratification 
 
 (/) "Sed rarum est quod publica mandate sint specialia, rarius quod 
 arcanum raandatum publico sit contrarium, rarissimum vero, quod legatus 
 arcanum posterius spernat. et ex publico priori rem agat." Bynkershoek, 
 Qutest. Jur. Pub. lib. ii. cap. vii.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 313 
 
 to give validity to the acts of a minister under his full- 
 power (g). Bynkershoek does not, however, deny that, if the 
 minister has acted precisely in conformity with his patent 
 full-power, which may be special, or his secret instructions, 
 which are always special, even the sovereign is bound to ratify 
 his acts, and subjects himself to the imputation of bad faith 
 if he refuses. But if the minister exceed his authority, or 
 undertake to treat points not contained in his full-power and 
 instructions, the sovereign is fully justified in delaying, or 
 even refusing his ratification. The peculiar circumstances of 
 each particular case must determine whether the rule or the 
 exception ought to be applied (h). 
 
 Vattel considers the sovereign as bound by the acts of his 259, 
 
 . . , .,,.,,,.. , . , . , Of Vattel. 
 
 minister, within the limits of his credentials, unless the power 
 
 of ratifying be expressly reserved, according to the practice 
 already established at the time when he wrote. 
 
 " Sovereigns treat with each other through the medium of 
 their attorneys or agents, who are invested with sufficient 
 powers for the purpose, and are commonly called plenipoten- 
 tiaries. To their office we may apply all the rules of natural 
 law which respect things done by commission. The rights of 
 the agent are determined by the instructions that are given 
 him. He must not deviate from them ; but every promise 
 which he makes, within the terms of his commission, and 
 within the extent of his powers, binds his constituent. 
 
 (//) " Sed quod olim obtinuit, mine non obtinet, ut mores gentium snepe 
 solent inutari, riam postquam ratihabitionem usus invaluit, inter Centos 
 tautrim non oinnes receptum est, ne fceilera et pacta, a legatis inita, valerent 
 nisi ea probaveriut principes, quorum res agitur. Ipse Wicquefort (eodem 
 Opere, 1. 1, sect. 16), necessitates! ratihabitionuiu satis agnoseit hisceverbis : 
 Que les pouvoirs, quelques am pies et absolus . qu'ils soient, aient toujours 
 quelque relation aux ordres secrets qu'ou leur donne, qui peuvent etre changes 
 et alteres, et qui le sont souvent, selon les conjonctures et les revolutions des 
 affaires." Ibid. 
 
 (h) ' ' Non tamen negaverim, si legatus publicum mandatum, quod forte 
 speciale est, vel arcanum, quod semper est speciale, examussim sequutus, 
 foedera et pacta ineat, justi principis esse ea probare, et nisi p'robaverit, malae 
 lidei reum esse, simulque legatum ludibrio ; sin autem mandatum excesserit, 
 vel foederibus et pactis nova qusedam sint inserta, de quibus nihil mandatum 
 erat, optimo jure poterit princeps vel differe ratihabitionem, vel plane negare. 
 Secundum hajc damnaverim vel probaverim negatas ratihabitiones, de quibus 
 prolixe agit Wicquefort (d. L. ii. sect. 15). In singulis causis, quas ipse 
 ibi recenset, ego nolim judex sedere, nam plurimum facti habent, quod me 
 latet, et forte ipsum latuit. Non imiueritd autem mine gentibus placuit 
 ratih&bitio, cum mandata publica, ut modo dicebam vix unquam sint specialia, 
 et arcana legatus in scriniis suis servare solent, neque adeo de his quicquam 
 rescire possint, quibuscum actum est. " Ibid.
 
 314 
 
 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 "At present, in order to avoid all danger and difficulty, 
 princes reserve to themselves the power of ratifying what has 
 been concluded in their name by their ministers. The full- 
 power is but a procuration cum libera. If this procuration 
 were to have its full effect, they could not be too circumspect 
 in giving it. But as princes cannot be compelled to fulfil 
 their engagements, otherwise than by force of arms, it is cus- 
 tomary to place no dependence on their treaties, until they 
 have agreed to and ratified them. Thus, as every agreement 
 made by the minister remains invalid until sanctioned by the 
 ratification of the prince, there is less danger in giving the 
 minister a full power. But before a sovereign can honourably 
 refuse to ratify that which has been concluded in virtue of a 
 full power, he must have strong and solid reasons, and, in 
 particular, he must show that his minister has deviated from 
 his instructions " (i). 
 
 The slightest reflection will show how wide is the difference 
 between the power given by sovereigns to their ministers to 
 negotiate treaties respecting vast and complicated international 
 concerns, and that given by an individual to his agent or 
 attorney to contract with another in his name respecting mere 
 private affairs. The acts of public ministers under such full 
 powers have been considered from very early times as subject 
 to ratification (k). 
 
 260. The reason on which this practice is founded is clearly ex- 
 Adair" plained by a veteran diplomat whose long experience gives 
 additional weight to his authority. " The forms in which 
 one State negotiates with another," says Sir Robert Adair, 
 " requiring, for the sake of the business itself, that the powers 
 to transact it should be as extensive and general as words can 
 
 (i) Vattel, Droit des Gens, liv. ii. ch. 12, 156. 
 
 (k) One of the earliest recorded examples of this practice was given in the 
 treaty of peace concluded, in 561, by the Roman Emperor Justinian, with 
 Cosroes L, King of Persia. Both the preliminaries and the definitive treaty, 
 signed by the respective plenipotentiaries, were subsequently ratified by the 
 two monarchs, and the ratifications formally exchanged. Barbeyrac, Histoire 
 des anciens traites, partie ii. p. 295. 
 
 It has been very justly observed that this example of the exchange of formal 
 ratifications, at a period of the world like that of Justinian, which invented 
 nothing, but only collected and followed the precedents of the preceding ages, 
 is conclusive to show that this sanction was then deemed necessary by the 
 general usage of nations to give validity to treaties concluded under full 
 powers. Wurm, Die Ratification von Staatsvertragen, Deutsche Vierteljahrs- 
 Schrift Nr. 29.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 315 
 
 render them, it is usual so to draw them up, even to a promise 
 to ratify ; although in practice, the non-ratification of prelimi- 
 naries is never considered to be a contravention of the law of 
 nations. The reason is plain. A plenipotentiary, to obtain 
 credit with a State on an equality with his master, must be 
 invested with powers to do, and agree to, all that could be 
 done and agreed to by his master himself, even to the alien- 
 ating the best part of his territories. But the exercise of 
 these vast powers, always under the understood control of non- 
 ratification, is regulated by his instructions " (I). 
 
 The exposition of the approved practice of nations, from 261. 
 which alone the law of nations applicable to this matter can 
 be deduced, conclusively shows that a full power, however 
 general, and even extending to a promise to ratify, does not 
 involve the obligation of ratifying in a case where the plenipo- 
 tentiary has deviated from his instructions. Yet the contrary 
 doctrine inferred, as we have seen, by the earlier public jurists, 
 from the analogies of private law in respect to the obligation 
 of contracts, concluded by procuration, is countenanced by a 
 modern writer of no inconsiderable merit. Kliiber asserts 
 that " public treaties can only be concluded in a valid manner 
 by the ruler of the State, who represents it towards foreign 
 nations, either immediately by himself, or through the agency 
 of plenipotentiaries, and in a manner conformable to the con- 
 stitutional laws of the State. A treaty concluded by such a 
 plenipotentiary is valid, provided he has not transcended his 
 patent full power ; and a subsequent ratification is only re- 
 quired in the case where it is expressly reserved in the full 
 power, or stipulated in the treaty itself, as is usually the case 
 at present in'all those conventions which are not, such as mili- 
 tary arrangements are, of urgent necessity. The ratification 
 by one of the contracting parties does not bind the other 
 party to give his in return. Except in the case of special 
 stipulations, a treaty is deemed to take effect from the time 
 of the signature, and not from that of the ratification. A 
 simple sponsion, an engagement entered into for the State, 
 whether made by the representative of the State or his agent, 
 unless he has full authority for making it, is not binding, 
 
 (1) Adair, Mission to the Court of Vienna, p. 54.
 
 316 EIGHTS OF NEGOTIATION AND TREATIES. 
 
 except so far as it is ratified by the State. The question whether 
 a treaty, made in the name of the State, by the chief of the 
 government with the enemy, while the former is a prisoner of 
 war, is binding on the State, or whether it is to be regarded 
 even as a sponsion, has given rise to serious disputes " (m). 
 262. Martens concurs with Kliiber so far as to admit, that what 
 he calls the universal law of nations, " does not require a 
 special ratification to render obligatory the engagement of a 
 minister acting within the limits of his full power, on the 
 faith of which the other contracting party has entered into 
 negotiation with him, even if the minister has transcended 
 his secret instructions." But he very correctly adds, that 
 " the positive law of nations, considering the necessity of 
 giving to negotiators very extensive full powers, has required 
 a special ratification so as not to expose the State to the irre- 
 parable injury which the inadvertence or bad faith of a subor- 
 dinate authority might occasion it ; so that treaties are only 
 relied on when ratified. But the reason of this usage, which 
 may be traced back to the remotest time, sufficiently shows, 
 that if one of the two parties duly offers his ratification, the 
 other party cannot refuse his in return, except so far as his 
 agent may have transcended the limits of his instructions, and 
 consequently is liable to punishment ; and that, at least re- 
 gularly, it does not depend upon the unlimited discretion of 
 one nation to refuse its ratification by allegiirg-jmefe reasons 
 of convenience " (n). 
 
 Martens remarks, in a note to the third edition of his work, 
 published after Kliiber' s had appeared, that the latter is of a 
 contrary opinion, as to the obligation of one party to ex- 
 change ratifications when proposed by the other; "and as he 
 (Kliiber) considers the ratification as necessary only where it 
 is reserved in the full power, or in the treaty itself (which is 
 at present rarely omitted), it seems that this author deduces 
 from this reservation the right of arbitrarily refusing the 
 ratification, which I doubt " (o). 
 
 This observation of Martens appears to be founded on a 
 misapprehension of the meaning of Kliiber, into which we 
 
 (m) Kliiber, Droit des Gens Moderue de 1'Europe, 142. 
 () Martens, Precis, &c., 48. 
 (o) Martens, 3rd edit. Note f.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 317 
 
 had ourselves inadvertently fallen, in the first edition of this 
 work. Although he has not, perhaps, guarded his meaning 
 with sufficient caution, further examination has convinced us 
 that neither Kliiber, nor any other institutional writer, has 
 laid down so lax a principle, as that the ratification of a treaty, 
 concluded in conformity with a full power, may be refused at 
 the mere caprice of one of the contracting parties, and with- 
 out assigning strong and solid reasons for such refusal. 
 
 The expressions used by Vattel, that "before a sovereign 
 can honourably refuse to ratify that which has been concluded 
 in virtue of a full power, he must have strong and solid 
 reasons, and in particular, he must show that his minister 
 has deviated from his instructions," may seem to imply that 
 he considered such deviation as a necessary ingredient in the 
 strong and solid reasons to be alleged for refusing to ratify. 
 But several classes of cases may be enumerated, in which, it 
 is conceived, such refusal might be justified, even where the 
 minister had not transcended or violated his instructions. 
 Among these the following may be mentioned : 
 
 1. Treaties may be avoided, even subsequent to ratifica- 263. 
 tion, upon the ground of the impossibility, physical or moral, tkmof^ 
 of fulfilling their stipulations. Physical impossibility is refusal to 
 where the party making the stipulation is disabled from 
 fulfilling it for want of the necessary physical means de- 
 pending on himself. Moral impossibility is where the execu- 
 tion of the engagement would affect injuriously the rights of 
 
 third parties. It follows, in both cases, that if the impos- 
 sibility of fulfilling the treaty arises, or is discovered previous 
 to the exchange of ratifications, it may be refused on this 
 ground. 
 
 2. Upon the ground of mutual error in the parties respect- 
 ing a matter of fact, which, had it been known in its true 
 circumstances, would have prevented the conclusion of the 
 treaty. Here, also, if the error be discovered previous to the 
 ratification, it may be withheld upon this ground. 
 
 3. In case of a change of circumstances, on which the 
 validity of the treaty is made to depend, either by an express 
 stipulation (clausula rebus sic stantibus), or by the nature of 
 the treaty itself. As such a change of circumstances would 
 avoid the treaty, even after ratification, so if it take place
 
 318 EIGHTS OF NEGOTIATION AND TREATIES. 
 
 previous to the ratification, it will afford a strong and solid 
 reason for withholding that sanction. 
 
 264. Every treaty is binding on the contracting parties from the 
 
 treaties date of its signature, unless it contain an express stipulation 
 bind 1 10 ^ ^ e con ^ rar y' r -^ ne exchange of ratifications has a retro- 
 active effect, confirming the treaty from its date (p). 
 
 The recent interference of four of the great European 
 powers in the internal affairs of the Ottoman Empire, affords 
 a remarkable example of a treaty concluded by plenipoten- 
 tiaries, which was not only held to be completely binding 
 between the contracting parties, but the execution of which 
 was actually commenced before the exchange of ratifications. 
 Such was the case with the Convention of the 15th July, 
 1840, between Austria, Great Britain, Prussia, Russia, and 
 Turkey. In the secret protocol annexed to the treaty, it was 
 stated that, on account of the distance which separated the 
 respective courts from each other, the interests of humanity, 
 and weighty considerations of European policy, the plenipo- 
 tentiaries, in virtue of their full powers, had agreed that the 
 preliminary measures should be immediately carried into 
 execution, and without waiting for the exchange of ratifica- 
 tions, consenting formally by the present act, and with the 
 assent of their courts, to the immediate execution of these 
 measures." 
 
 This anomalous case may, at first sight, seem to contradict 
 the principles above stated, as to the necessity of a previous 
 ratification, to give complete effect to a treaty concluded by 
 plenipotentiaries. But further reflection will show the obvious 
 distinction which exists between a declaration of the plenipo- 
 tentiaries, authorized by the instructions of their respective 
 courts, dispensing by mutual consent with the previous ratifi- 
 cation ; and a demand by one of the contracting parties, that 
 the treaty should be carried into execution, without waiting 
 for the ratification of the other party (q). 
 
 265. The municipal constitution of every particular State deter- 
 m i lies i n whom resides the authority to ratify treaties nego- 
 
 (p) Martens, Precis, &c., 48. Essai concernant les Armateurs, &c., 48. 
 Kliiber, Droit des Gens Moderne de 1'Europe, 48. Heffter. das Europaische 
 Volkerrecht, 87. 
 
 (?) Murhard, Nouvcau Recueil General, tome i. p. 163.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 319 
 
 tiatcd and concluded with foreign powers, so as to render them power de- 
 
 -, T -, TIT i -L .LI pendent on 
 
 obligatory upon the nation. In absolute monarchies, it is the tne muni- 
 prerogative of the sovereign himself to confirm the act of his "|^ t j^" 
 plenipotentiary by his final sanction. In certain limited or 
 constitutional monarchies, the consent of the legislative power 
 of the nation is, in some cases, required for that purpose. 
 In some republics, as in that of the United States of America, 
 the advice and consent of the Senate are essential, to enable 
 the chief executive magistrate to pledge the national faith in 
 this form. In all these cases, it is, consequently, an implied 
 condition in negotiating with foreign powers, that the treaties 
 concluded by the executive government shall be subject to 
 ratification in the manner prescribed by the fundamental laws 
 of the State. 
 
 " He who contracts with another," says Ulpian, " knows, 
 or ought to know, his condition." Qui cum alio contrahit, 
 vel est, vel debet esse non ignarus conditionis ejus (1. 19, D. 
 de div. E. J. 50, 17). But, in practice, the full powers given 
 by the government of the United States to their plenipoten- 
 tiaries always expressly reserve the ratification of the treaties 
 concluded by them, by the President, with the advice and con- 
 sent of the Senate. 
 
 The treaty, when thus ratified, is obligatory upon the con- 266. 
 tracting States, independently of the auxiliary legislative j^jjj^ 
 measures, which may be necessary on the part of either, in measures, 
 order to carry it into complete effect. Where, indeed, such nec essary 
 
 auxiliary legislation becomes necessary, in consequence of to the 
 
 , . . . validity of 
 
 some limitation upon the treaty-making power, expressed in a treaty. 
 
 the fundamental laws of the State, or necessarily implied 
 from the distribution of its constitutional powers, such, for 
 example, as a prohibition of alienating the national domain, 
 then the treaty may be considered as imperfect in its obliga- 
 tion, until the national assent has been given in the forms 
 required by the municipal constitution. A general power to 
 make treaties of peace necessarily implies a power to decide 
 the terms on which they shall be made ; and, among these, 
 may properly be included the cession of the public territory 
 and other property, as well as of private property included in 
 the eminent domain annexed to the national sovereignty. If 
 there be no limitation expressed in the fundamental laws of
 
 320 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 the State, or necessarily implied from the distribution of its 
 constitutional authorities on the treaty-making power in this 
 respect, it necessarily extends to the alienation of public and 
 private property, when deemed necessary or expedient (r). 
 
 Commercial treaties, which have the effect of altering the 
 existing laws of trade and navigation of the contracting par- 
 ties, may require the sanction of the legislative power in each 
 State for their execution. Thus the commercial treaty of 
 Utrecht, between France and Great Britain, by which the trade 
 between the two countries was to be placed on the footing of 
 reciprocity, was never carried into effect ; The British Parlia- 
 ment having rejected the bill which was brought in for the 
 purpose of modifying the existing laws of trade and naviga- 
 tion, so as to adapt them to the stipulations of the treaty (s). 
 In treaties requiring the appropriation of moneys for their 
 execution, it is the usual practice of the British government 
 to stipulate that the king will recommend to parliament to 
 make the grant necessary for that purpose. Under the Con- 
 stitution of the United States, by which treaties made and 
 ratified by the President, with the advice and consent of the 
 Senate, are declared to be "the supreme law of the land," it 
 seems to be understood that the Congress is bound to redeem 
 the national faith thus pledged, and to pass the laws neces- 
 sary to carry the treaty into effect (t). 
 
 - 
 
 The Supreme Court of the United States has laid down, as a principle 
 f international law that > respecting the rights of either government 
 under it, a treaty is considered concluded and binding, from the date 
 of its signature. In this regard the exchange of ratifications has, as 
 stated in the text, a retroactive effect, confirming the treaty from its 
 date. But a different rule prevails where the treaty operates on indi- 
 vidual 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 ex- 
 change of ratifications (it). The reason of the rule is this. In America 
 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, 
 
 (r) Grotius, de Jnr. Bel. ac Pac. lib. iii. cap. 20, 7. Vattel, Droit des 
 Gens, liv. i. ch. 20, 244; ch. 2, 262265. Kent's Comment, on 
 American Law, vol. i. p. 164, 5th ed. 
 
 (s) Lord Mahon's History of England from the Peace of Utrecht, vol. i. 
 p. 24. 
 
 (t) Kent's Comment, vol. i. p. 285, 5th ed. 
 
 (u) [U. S. v. Arredondo, 6 Peters, 735].
 
 RIGHTS OF NEGOTIATION AND TREATIES. 321 
 
 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 the individual citizen on whose rights of pro- 
 perty 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 con- 
 strue the law, so as to make the ratification of the treaty relate back to 
 its signing, thereby divesting a title already vested, would be mani- 
 festly unjust (x). 
 
 By the general principles of private jurisprudence, recog- 267. 
 nized by most, if not all, civilized countries, a contract 
 
 obtained by violence is void. Freedom of consent is essen- how far 
 tial to the validity of every agreement, and contracts obtained to the 
 under duress are void, because the general welfare of society h ^. lty of 
 requires that they should be so. If they were binding, the 
 timid would constantly be forced by threats, or by violence, 
 into a surrender of their just rights. The notoriety of the 
 rule that such engagements are void, makes the attempt to 
 extort them among the rarest of human crimes. On the 
 other hand, the welfare of society requires that the engage- 
 ments entered into by a nation under such duress as is 
 implied by the defeat of its military forces, the distress of 
 its people, and the occupation of its territories by an enemy, 
 should be held binding ; for if they were not, wars could 
 only be terminated by the utter subjugation and ruin of the 
 weaker party. Nor does inadequacy of consideration, or 
 inequality in the conditions of a treaty between nations, such 
 as might be sufficient to set aside a contract as between 
 private individuals on the ground of gross inequality or 
 enormous lesion, form a sufficient reason for refusing to 
 execute the treaty (y). 
 
 General compacts between nations may be divided into 268. 
 
 what are called transitory conventions, and treaties properly Transitol T 
 
 r r J conventiona 
 so termed. The first are perpetual in their nature, so that, perpetual 
 
 being once carried into effect, they subsist independent of ^ r 
 any change in the sovereignty and form of government of the 
 contracting parties ; and although their operation may, in 
 
 (x) [Haver v. Taker, 9 Wallace, 34. See also, U. S. v. Eeytus, 9 Howard, 
 148, 289 ; Foster v. Neilson, 2 Peters, 314]. 
 
 (y) Senior, Edinburgh Rev. No. CLVI. art. 1. Martens, Precis, liv. ii. 
 eh. 2, 50, 52. Grotius, de Jur. Bel. ac Pac. lib. ii. sect. xiv. 412. 
 
 Y
 
 322 EIGHTS OF NEGOTIATION AND TREATIES. 
 
 some cases, be suspended during war, they revive on the 
 return of peace without any express stipulation. Such are 
 treaties of session, boundary, or exchange of territory, or 
 those which create a permanent servitude in favour of one 
 nation within the territory of another (z). 
 
 Thus the treaty of peace of 1783, between Great Britain 
 and the United States, by which the independence of the 
 latter was acknowledged, prohibited future confiscations of 
 property ; and the treaty of 1794, between the same parties, 
 confirmed the titles of British subjects holding lands in the 
 United States, and of American citizens holding lands in 
 Great Britain, which might otherwise be forfeited for alienage. 
 Under these stipulations, the Supreme Court of the United 
 States determined that the title both of British natural subjects 
 and of corporations to lands in America was protected by the 
 treaty of peace, and confirmed by the treaty of 1794, so that 
 it could not be forfeited by any intermediate legislative act, 
 or other proceeding, for alienage. Even supposing the treaties 
 were abrogated by the war which broke out between the two 
 countries in 1812, it would not follow that the rights of 
 property already vested under those treaties could be divested 
 by supervening hostilities. The extinction of the treaties 
 would no more extinguish the title to real property acquired 
 or secured under their stipulations than the repeal of a mu#i- 
 cipal law affects rights of property vested under its provi- 
 sions (a). But independent of this incontestable principle, 
 on which the security of all property rests, the court was not 
 inclined to admit the doctrine, that treaties become, by war 
 between the two contracting parties, ipso facto extinguished, 
 if not revived by an express or implied renewal on the return 
 of peace. Whatever might be the latitude of doctrine laid 
 down by elementary writers on the law of nations, dealing 
 in general terms in relation to the subject, it was satisfied 
 that the doctrine contended for was not universally true. 
 There might be treaties of such a nature as to their object 
 and import, as that war would necessarily put an end to 
 them ; but where treaties contemplated a permanent arrange- 
 
 (z) Vattel, Droit des Gens, liv. ii. ch. 12, 192. Martens, Precis, &c., 
 liv. ii. ch. 2, 58: 
 
 (a) [Chirac v. Chirac, 2 Wheaton, 277].
 
 RIGHTS OF NEGOTIATION AND TREATIES. 323 
 
 ment of territory, and other national rights, or in their terms 
 were meant to provide for the event of an intervening war, 
 it would be against every principle of just interpretation to 
 hold them extinguished by war. If such were the law, 
 even the treaty of 1783, so far as it fixed the limits of the 
 United States, and acknowledged their independence, would 
 be gone, and they would have had again to struggle for both, 
 upon original revolutionary principles. Such a construction 
 was never asserted, and would be so monstrous as to super- 
 sede all reasoning. The court, therefore, concluded that 
 treaties stipulating for permanent rights and general arrange- 
 ments, and professing to aim at perpetuity, 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 suspended while 
 it lasts ; and unless they are waived by the parties, or new 
 and repugnant stipulations are made, revive upon the return 
 of peace (6). 
 
 By the 3rd article of the treaty of peace of 1783, between 
 the United States and Great Britain, it was " agreed that the 
 people of the United States shall continue to enjoy un- tweenthe 
 molested the right to take fish of every kind on the Grand an( i British 
 Bank, and on all the other Banks of Newfoundland : also in 8- 
 
 ments 
 
 the Gulf of St. Lawrence, and at all other places in the sea, respecting 
 where the inhabitants of both countries used, at any time 
 
 heretofore, to fish ; and also that the inhabitants of the the coasts of 
 United States shall have liberty to take fish of every kind on dominions 
 such part of the coast of Newfoundland as British fishermen No r th 
 shall use (but not to dry or cure the same on that island), 
 and also on the coasts, bays, and creeks of all other of his 
 Britannic Majesty's dominions in America ; and that the 
 American fishermen shall have liberty to dry and cure fish in 
 any of the unsettled bays, harbours, and creeks of Nova 
 Scotia, Magdalen Islands, and Labrador, so long as the same 
 shall remain unsettled ; but so soon as the same, or either of 
 them shall be settled, it shall not be lawful for the said 
 fishermen to dry or cure fish at such settlement, without a 
 
 (b) Tlie Society for the Propagation of the Gospel in Foreign Parts v. The 
 Town of New Haven, 8 Wheaton, 464. The same principle was asserted by 
 the English Court of Chancery, as to American citizens .holding lands in 
 Great Britain under the treaty of 1794, in Button v. Sutton, 1 Russell & 
 Milne, 663.
 
 324 
 
 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 previous agreement for that purpose with the inhabitants, 
 proprietors, or possessors of the ground." 
 
 70. During the negotiation at Ghent, in 1814, the British 
 
 tiou at plenipotentiaries gave notice that their government " did not 
 Ghent. intend to grant to the United States, gratuitously, the pri- 
 vileges formerly granted by treaty to them of fishing within 
 .the limits of the British sovereignty, and of using the shores 
 of the British territories for purposes connected with the 
 British fisheries." In answer to this declaration the American 
 plenipotentiaries stated that they were " not authorized to 
 vbring into discussion any of the rights or liberties which the 
 United States have heretofore enjoyed in relation thereto ; 
 from their nature, and from the peculiar character of the 
 treaty of 1783, by which they were recognized, no further 
 stipulation has been deemed necessary by the government of 
 the United States to entitle them to the full enjoyment of 
 them all." 
 
 The treaty of peace concluded at Ghent, in 1814, therefore, 
 contained no stipulation on the subject ; and the British 
 government subsequently expressed its intention to exclude 
 the American fishing vessels from the liberty of fishing 
 within one marine league of the shoreS-of^he British terri- 
 tories in North America, and from that of drying and curing 
 their fish on the unsettled parts of those territories, and, with 
 the consent of the inhabitants, within those parts which had 
 become settled since the peace of 1783. 
 
 271. In discussing this question, the American minister in 
 o/ftr^j"! London, Mr. J. Q. Adams, stated, that from the time the 
 Q. Adams, settlement in North America, constituting the United States, 
 was made, until their separation from Great Britain and their 
 establishment as distinct sovereignties, these liberties of fish- 
 ing, and of drying and curing fish, had been enjoyed by them, 
 in common with the other subjects of the British empire. In 
 point of principle, they were pre-eminently entitled to the 
 enjoyment ; and, in point of fact, they had enjoyed more of 
 them than any other portion of the empire ; their settlement 
 of the neighbouring country having naturally led to the 
 discovery and improvement of these fisheries ; and their 
 proximity to the places where they were prosecuted, having 
 led them to the discovery of the most advantageous fishing
 
 RIGHTS OF NEGOTIATION AND TREATIES. 325 
 
 grounds, and given them facilities in the pursuit of their 
 occupation in those regions, which the remoter parts of the 
 empire could not possess. It might be added, that they had 
 contributed their full share, and more than their share, in 
 securing the conquest from France of the provinces on the 
 coasts of which these fisheries were situated. 
 
 It was doubtless upon considerations such as these that an 
 express stipulation was inserted in the treaty of 1783, recog- 
 nizing the rights and liberties which had always been enjoyed 
 by the people of the United States in these fisheries, and de- 
 claring that they should continue to enjoy the right of fishing 
 on the Grand Bank, and other places of common jurisdiction, 
 and have the liberty of fishing, and drying and curing their 
 fish, within the exclusive British jurisdiction on the North 
 American coasts, to which they had been accustomed whilst 
 they formed a part of the British nation. This stipulation 
 was a part of that treaty by which His Majesty acknowledged 
 the United States as free, sovereign, and independent States, 
 and that he treated with them as such. 
 
 It could not be necessary to prove that this treaty was not, 
 in its general provisions, one of those which, by the common 
 understanding and usage of civilized nations, is considered as 
 annulled by a subsequent war between the same parties. To 
 suppose that it is, would imply the inconsistency and ab- 
 surdity of a sovereign and independent State, liable to forfeit 
 its right of sovereignty by the act of exercising it on a decla- 
 ration of war. But the very words of the treaty attested that 
 the sovereignty and independence of the United States were 
 not considered as grants from his Majesty. They were taken 
 and expressed as existing before the treaty was made, and as 
 then only first formally recognized by Great Britain. 
 
 Precisely of the same nature were the rights and liberties in 
 the fisheries. They were, in no respect, grants from the 
 King of Great Britain to the United States ; but the acknow- 
 ledgment of them as rights and liberties enjoyed before the 
 separation of the two countries, and which it was mutually 
 agreed should continue to be enjoyed under the new relations 
 which were to subsist between them, constituted the essence 
 of the article concerning the fisheries. The very peculiarity 
 of the stipulation was an evidence that it was not, on either
 
 326 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 side, understood or intended as a grant from one sovereign 
 State to another. Had it been so understood, neither could 
 the United States have claimed, nor would Great Britain 
 have granted, gratuitously, any such concession. There was 
 nothing, either in the state of things, or in the disposition of 
 the parties, which could have led to such a stipulation on the 
 part of Great Britain, as on the ground of a grant, without an 
 equivalent. 
 
 If the stipulation by the treaty of 1783, was one of the 
 conditions by which his Majesty acknowledged the sovereignty 
 $,nd independence of the United States ; if it was the mere 
 recognition of rights and liberties previously existing and 
 enjoyed, it was neither a privilege gratuitously granted, nor 
 liable to be forfeited by the mere existence of a subsequent 
 war. If it was not forfeited by the war, neither could it be 
 impaired by the declaration of Great Britain at Ghent, that 
 she did not intend to renew the grant. Where there had 
 been no gratuitous concession, there could be none to renew ; 
 the rights and liberties of the United States could not be 
 cancelled by the declaration of the British intentions. 
 Nothing could abrogate them' but a renunciation by the 
 United States themselves (c). 
 
 272. In the answer of the British government to this com- 
 
 of r |ari ent niunication, it was stated that Great Britain had always con- 
 Bathurst. sidered the liberty formerly enjoyed by the United States, of 
 fishing within British limits and using British territory, as 
 derived from the 3rd article of the Treaty of 1783, and from 
 that alone ; and that the claim of an independent State to 
 occupy and use, at its discretion, any portion of the territory 
 of another, without compensation or corresponding indulgence, 
 could not rest on any other foundation than conventional 
 stipulation. It was unnecessary to inquire into the motives 
 which might have originally influenced Great Britain in con- 
 ceding such liberties to the United States, or whether other 
 articles of the treaty did or did not, in fact, afford an equiva- 
 lent for them, because all the stipulations profess to be 
 founded on reciprocal advantage and mutual convenience. If 
 the United States derived from that treaty privileges, from 
 
 (c) Mr. J. Q. Adams to Lord Bathurst, Sept. 25, 1815. American State 
 Papers, fol. edit. 1834, vol. iv. p. 352.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 327 
 
 which other independent nations not admitted by treaty were 
 excluded, the duration of the privileges must depend on the 
 duration of the instrument by which they were granted ; and 
 if the war abrogated the treaty, it determined the privileges. 
 It had been urged, indeed, on the part of the United States, 
 that the Treaty of 1783 was of a peculiar character, and that, 
 because it contained a recognition of American independence, 
 it could not be abrogated by a subsequent war between the 
 parties. To a position of this novel nature Great Britain could 
 not accede. She knew of no exception to the rule, that all 
 treaties are put an end to by a subsequent war between the 
 same parties ; she could not, therefore, consent to give her 
 diplomatic relations with one State a different degree of 
 permanency from that on which her connection with all other 
 States depended. Nor could she consider any one State at 
 liberty to assign to a treaty made with her such a peculiarity 
 of character as should make it, as to duration, an exception 
 to all other treaties, in order to found, on a peculiarity thus 
 assumed, an irrevocable title to indulgences which had all the 
 features of temporary concessions. 
 
 It was by no means unusual for treaties containing recogni- 
 tions and acknowledgments of title, in the nature of per- 
 petual obligation, to contain, likewise, grants of privileges 
 liable to revocation. The Treaty of 1783, like many others, 
 contained provisions of different character ; some in their own 
 nature irrevocable, the others merely temporary. If it were 
 thence inferred that, because some advantages specified in 
 that treaty would not be put an end to by the war, therefore 
 all the other advantages were intended to be equally perma- 
 nent, it must first be shown that the advantages themselves 
 are of the same, or at least of a similar character ; for the 
 character of one advantage, recognized or conceded by treaty, 
 can have no connection with the character of another, though 
 conceded by the same instrument, unless it arises out of a 
 strict and necessary connection between the advantages them- 
 selves. But what necessary connection could there be be- 
 tween a right to independence and a liberty to fish within 
 British jurisdiction, or to use British territory ? Liberties 
 within British limits were as capable of being exercised by a 
 dependent as by an independent State ; and could not, there- 
 fore, be the necessary consequence of independence.
 
 328 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 The independence of a State could not be correctly said to 
 be granted by a treaty, but to be acknowledged by one. In 
 the Treaty of 1783, the independence of the United States 
 was certainly acknowledged, not merely by the consent to 
 make the treaty, but by the previous consent to enter into 
 the provisional articles, executed in 1782. Their indepen- 
 dence might have been acknowledged, without either the 
 treaty or the provisional articles; but by whatever mode 
 acknowledged, the acknowledgment was, in its own nature, 
 irrevocable. A power of revoking, or even of modifying it, 
 would be destructive of the thing itself; and, therefore, all 
 such power was necessarily renounced when the acknowledg- 
 ment was made. The war could not put an eml to it, for the 
 reason justly assigned by the American minister ; because a 
 nation could not forfeit its sovereignty by the act of exercising 
 it ; and for the further reason that Great Britain, when she 
 declared, war against the United States, gave them, by that 
 very act, a new recognition of their independence. 
 
 The rights acknowledged by the Treaty of 1783 were not 
 only distinguishable from the liberties conceded by the same 
 treaty, in the foundation on which they stand, but they were 
 carefully distinguished in the wording of the treaty. In the 
 1st article, Great Britain acknowledged an independence 
 already expressly recognized by the other powers of Europe, 
 and by herself in her consent to enter into the provisional 
 articles of 1782. In the 3rd article, Great Britain acknow- 
 ledged the right of the United States to take fish on the 
 Banks of Newfoundland and other places, from which Great 
 Britain had no right to exclude any independent nation. 
 But they were to have the liberty to cure and dry them in 
 certain unsettled places within the British territory. If the 
 liberties thus granted were to be as perpetual and indefeasible 
 as the rights previously recognized, it was difficult to conceive 
 that the American plenipotentiaries would have admitted a 
 variation of language so adapted to produce a different im- 
 pression ; and, above all, that they should have admitted so 
 strange a restriction of a perpetual and indefeasible right as 
 that with which the article concludes, which left a right so 
 practical and so beneficial as this was admitted to be, depen- 
 dent on the will of British subjects, proprietors, or possessors 
 of the soil, to prohibit its exercise altogether.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 329 
 
 It was, therefore, surely obvious that the word right was, 
 throughout the treaty, used as applicable to what the United 
 States were to enjoy in virtue of a recognized independence ; 
 and the word liberty to what they were to enjoy as conces- 
 sions strictly dependent on the treaty itself (c7). 
 
 The American minister, in his reply to this argument, 273. 
 disavowed every pretence of claiming for the diplomatic MnAdaraa. 
 relations between the United States and Great Britain a 
 degree of permanency different from that of the same rela- 
 tions between either of the parties and all other powers. He 
 disclaimed all pretence of assigning to any treaty between the 
 two nations, any peculiarity not founded in the nature of the 
 treaty itself. But he submitted to the candour of the British 
 government whether the Treaty of 1783 was not, from the 
 very nature of its subject-matter, and from the relations pre- 
 viously existing between the parties to it, peculiar ? Whether 
 it was a treaty which could have been made between Great 
 Britain and any other nation ? And if not, whether the 
 whole scope and object of its stipulations were not expressly 
 intended to establish a new and permanent state of diplomatic 
 relations between the two countries, which would not and 
 could not be annulled by the mere fact of a subsequent war ? 
 And he made this appeal with the more confidence, because 
 the British note admitted that treaties often contained recog- 
 nitions in the nature of perpetual obligation ; and because it 
 implicitly admitted that the whole Treaty of 1783 is of this 
 character, with the exception of the article concerning the 
 navigation of the Mississippi, and a small part of the article 
 concerning the fisheries. 
 
 The position, that "Great Britain knows of no exception 
 to the rule, that all treaties are put an end to by a subsequent 
 war," appeared to the American minister not only novel, but 
 unwarranted by any of the received authorities upon the law 
 of nations ; unsanctioned by the practice and usages of 
 sovereign States ; suited, in its tendency, to multiply the 
 incitements to war, and to weaken the ties of peace between 
 independent nations ; and not easily reconciled with the ad- 
 mission that treaties not unusually contain, together with 
 
 (d) Earl Bathurst to Mr. J. Q. Mams, Oct. 30, 1315. American State 
 Papers, fol. edit. 1834, vol. iv. p. 354.
 
 330 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 articles of a temporary character, liable to revocation, " re- 
 cognitions and acknowledgments in the nature of perpetual 
 obligation." 
 
 A recognition or acknowledgment of title, stipulated by 
 convention, was as much a part of the treaty as any other 
 article ; and if all treaties are abrogated by war, the recog- 
 nitions and acknowledgments contained in them must neces- 
 sarily be null and void, as much as any other part of the 
 treaty. 
 
 If there were no exception to the rule, that war puts an 
 end to all treaties between the parties to it, what could be the 
 purpose or meaning of those articles whieh, in almost all 
 treaties of commerce, were provided expressly tor the contin- 
 gency of war, and which during the peace are without opera- 
 tion ? For example, the 10th article of the Treaty of 1794, 
 between the United States and Great Britain, stipulated that 
 " Neither the debts due from individuals of the one nation to 
 individuals of the other, nor shares, nor moneys, which they 
 may have in the public funds, or in the public or private 
 banks, shall ever, in any event of war, or national differences, 
 be sequestered or confiscated." If war put an end to all 
 treaties, what could the parties to this engagement intend by 
 making it formally an article of the treaty ? According to 
 the principle laid down, excluding all exception, by the 
 British note, the moment a war broke out between the two 
 countries this stipulation became a dead letter, and either 
 State might have sequestered or confiscated those specified 
 properties, without any violation of compact between the two 
 nations. 
 
 The American minister believed that there were many ex- 
 ceptions to the rule by which the treaties between nations are 
 mutually considered as terminated by the intervention of a 
 war ; that these exceptions extend to all engagements con- 
 tracted with the understanding that they are to operate 
 equally in war and peace, or exclusively during war ; to all 
 engagements by which the parties superadd the sanction 
 of a formal compact to principles dictated by the eternal 
 laws of morality and humanity ; and, finally, to all engage- 
 ments, which, according to the expression of the British 
 note, are in the nature of perpetual obligation. To the
 
 RIGHTS OF NEGOTIATION AND TREATIES. S3l 
 
 first and second of these classes might be referred the 
 10th article of the Treaty of 1794, and all treaties or 
 articles of treaties stipulating the abolition of the slave- 
 trade. The treaty of peace of 1783 belongs to the third 
 class. 
 
 The reasoning of the British note seemed to confine this 
 perpetuity of obligation to recognitions and acknowledgments 
 of title, and to consider its perpetual nature as resulting from 
 the subject-matter of the contract, and not from the engage- 
 ment of the contractor. While Great Britain left the United 
 States unmolested in the enjoyment of all the advantages, 
 rights, and liberties stipulated in their behalf in the Treaty 
 of 1783, it was immaterial whether she founded her conduct 
 upon the mere fact that the United States are in possession 
 of such rights, or whether she was governed by good faith 
 and respect for her own engagements. But if she contested 
 any of these rights, it was to her engagements only that the 
 United States could appeal, as the rule for settling the ques- 
 tion of right. If this appeal were rejected, it ceased to be a 
 discussion of right ; and this observation applied as strongly 
 to the recognition of independence and the boundary line, in 
 the Treaty of 1783, as to the fisheries. It was truly observed 
 in the British note, that in that treaty the independence of 
 the United States was not granted, but acknowledged ; and it 
 was added, that it might have been acknowledged without 
 any treaty, and that the acknowledgment, in whatever mode, 
 would have been irrevocable. But the independence of the 
 United States was precisely the question upon which a pre- 
 vious war between them and Great Britain had been waged. 
 Other nations might acknowledge their independence without 
 a treaty, because they had no right or claim of right to con- 
 test it ; but this acknowledgment, to be binding upon Great 
 Britain, could have been made only by treaty, because it in- 
 cluded the dissolution of one social compact between the 
 parties, as well as the formation of another. Peace could 
 exist between the two nations only by the mutual pledge of 
 faith to the new social relations established between them ; 
 and hence it was, that the stipulations to that treaty were 
 in the nature of perpetual obligation, and not liable to 
 be forfeited by a subsequent war, or by any declaration
 
 332 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 of the will of either party, without the assent of the 
 other (e). 
 
 274. The above analysis of the correspondence which took place 
 
 thllTcorres- relating to this subject, has been inserted as illustrative of 
 
 pondence. the general question, how far treaties are abrogated by war 
 
 between the parties to them ; but the particular controversy 
 
 itself was finally settled between the two countries on the 
 
 basis of compromise, by the convention of 1818, in which the 
 
 liberty claimed by the United States in respect to the fishery 
 
 within the British jurisdiction and territory, was confined to 
 
 certain geographical limits (/). 
 
 275. Treaties, properly so called, or fcedtfra^arb those of friend- 
 
 the opera- sn ip an< l alliance, commerce, and navigation, which, even if 
 
 tipn of perpetual in terms, expire of course : 
 
 which cease T . . 
 
 in certain 1. In case either of the contracting parties loses its exist- 
 ence as an independent State. 
 
 2. Where the internal constitution of government of either 
 State is so changed, as to render the treaty inapplicable under 
 circumstances different from those with a view to which it was 
 concluded. 
 
 Here the distinction laid down by institutional writers be- 
 tween real and personal treaties becomes important. The 
 first bind the contracting parties independently of any change 
 in the sovereignty, or in the rulers of the State. The latter 
 include only treaties of mere personal alliance, such as are 
 expressly made with a view to the person of the actual ruler 
 or reigning sovereign, and though they bind the State during 
 his existence, expire with his natural life or his public con- 
 nection with the State (g). 
 
 3. In case of war between the contracting parties ; unless 
 such stipulations as are made expressly with a view to a rup- 
 ture, such as the period of time allowed to the respective 
 subjects to retire with their effects, or other limitations of the 
 general rights of war. Such is the stipulation contained in 
 the 10th article of the Treaty of 1794, between Great Britain 
 and the United States, providing that private debts and 
 
 (e) Mr. J. Q. Adams to Lord Castlereagh, Jan. 22, 1816. American State 
 Papers, fol. edit. 1834, vol. iv. p. 356. 
 (/) Vide ante, pt. ii. ch. iv. 180. 
 (y) Vide ante, pt. i. ch. 2, 29.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 333 
 
 shares or moneys in the public funds, or in public or private 
 banks belonging to private individuals, should never, in the 
 event of war, be sequestered or confiscated. There can be no 
 doubt that the obligation of this article would not be impaired 
 by a supervening war, being the very contingency meant to be 
 provided for, and that it must remain in full force until 
 mutually agreed to be rescinded (/<). 
 
 4. Treaties expire by their own limitation, unless revived 
 by express agreement, or when their stipulations are fulfilled 
 by the respective parties, or when a total change of circum- 
 stances renders them no longer obligatory. 
 
 Most international compacts, and especially treaties of 276. 
 peace, are of a mixed character, and contain articles of both Tre ? ti ! 
 
 revived and 
 
 kinds, which renders it frequently difficult to distinguish confirmed 
 between those stipulations which are perpetual in their nature, 
 and such as are extinguished by war between the contracting peace, 
 parties, or by such changes of circumstances as affect the 
 being of either party, and thus render the compact inappli- 
 cable to the new condition of things. It is for this reason, 
 and from abundance of caution, that stipulations are frequently 
 inserted in treaties of peace, expressly reviving and confirming 
 the treaties formerly subsisting between the contracting 
 parties, and containing stipulations of a permanent character, 
 or in some other mode excluding the conclusion that the 
 obligation of such antecedent treaties is meant to be waived 
 by either party. The reiterated confirmations of the treaties 
 of Westphalia and Utrecht, in almost every subsequent treaty 
 of peace or commerce between the same parties, constituted a 
 sort of written code of conventional law, by which the distri- 
 bution of power and territory among the principal European 
 States was permanently settled, until violently disturbed by 
 the partition of Poland and the wars of the French revolution. 
 The arrangements of territory and political relations substi- 
 tuted by the treaties of Vienna for the ancient conventional 
 law of Europe, and doubtless intended to be of a similar per- 
 manent character, have already undergone, in consequence of 
 the French, Polish, and Belgic revolutions of 1830, very im- 
 
 (k) Vattel, liv. iii. ch. 10, 175. Kent's Comment, on American Law, 
 vol. i. p. 175, 5th ed.
 
 334 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 portant modifications, of which we have given an account in 
 another work (i). 
 
 277. The convention of guaranty is one of the most usual inter- 
 Treaties of . & . J 
 guaranty, national contracts. It is an engagement by which one State 
 
 promises to aid another where it is interrupted, or threatened 
 to be disturbed, in the peaceable enjoyment of its rights by a 
 third power. It may be applied to every species of right and 
 obligation that can exist between nations ; to the possession 
 and boundaries of territories, the sovereignty of the State, 
 its constitution of government, the right of succession, &c. ; 
 but it is most commonly applied to treaties of peace. The 
 guaranty may also be contained in arrttstinct and separate 
 convention, or included among the stipulations annexed to 
 the principal treaty intended to be guaranteed. It then be- 
 comes an accessory obligation (A;). 
 
 The guaranty may be stipulated by a third power not a 
 party to the principal treaty, by one of the contracting parties 
 in favour of another, or mutually between all the parties. 
 Thus, by the treaty of peace concluded at Aix-la-Chapelle in 
 1748, the eight high contracting parties mutually guaranteed 
 to each other all the stipulations of the treaty. 
 
 The guaranteeing party is bound to nothing more than to 
 render the assistance stipulated. If it prove insufficient, he 
 is not obliged to indemnify the power to whom his aid has 
 been promised. Nor is he bound to interfere to the prejudice 
 of the just rights of a third party, or in violation of a pre- 
 vious treaty rendering the guaranty inapplicable in a parti- 
 cular case. Guaranties apply only to rights and possessions 
 existing at the time they are stipulated. It was upon these 
 grounds that Louis XV. declared, in 1741, in favour of the 
 Elector of Bavaria against Maria Theresa, the heiress of the 
 Emperor Charles VI., although the court of France had pre- 
 viously guaranteed the pragmatic sanction of that Emperor, 
 regulating the succession to his hereditary States. And it 
 was upon similar grounds, that France refused to fulfil the 
 Treaty of Alliance of 1756 with Austria, in respect to the 
 
 (i) Wheaton, Hist. Law of Nations, pp. 435445, 538551. 
 
 (k) Vattel, Droit des Gens, liv. ii. ch. 16, 235239. Kliiber, Droit des 
 GensModerne del'Europe, pt. ii. tit. 2, sect. 1, ch. 2, 157, 158. Martens, 
 Precis, &c., 63.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 335 
 
 pretensions of the latter power upon Bavaria, in 1778, which 
 threatened to produce a war with Eussia. Whatever doubts 
 may be suggested as to the application of these principles 
 to the above cases, there can be none respecting the prin- 
 ciples themselves, which are recognized by all the text 
 writers (I). 
 
 These writers make a distinction between a surety and a 
 guarantee. Thus Vattel lays it down, that where the matter 
 relates to things which another may do or give as well as he 
 who makes the original promise, as, for instance, the pay- 
 ment of a sum of money, it is safer to demand a surety 
 (caution) than a guarantee (garant). For the surety is bound 
 to make good the promise in default of the principal ; whereas 
 the guarantee is only obliged to use his best endeavours to 
 obtain a performance of the promise from him who has made 
 it(m). 
 
 Treaties of alliance may be either defensive or offensive. 278. 
 In the first case, the engagements of the ally extend only to a uiance. 
 a war really and truly defensive ; to a war of aggression first 
 commenced, in point of fact, against the other contracting 
 party. In the second, the ally engages generally to co- 
 operate in hostilities against a specified power, or against any 
 power with whom the other party may be engaged in war. 
 
 An alliance may also be both offensive and defensive. 
 
 General alliances are to be distinguished from treaties of 279. 
 limited succour and subsidy. Where one State stipulates to between 10 " 
 
 furnish to another a limited succour of troops, ships of war, general 
 .,, . , , . alliance 
 
 money, or provisions, without any promise looking to an and treaties 
 
 eventual engagement in general hostilities, such a treaty does of hmited 
 not necessarily render the party furnishing this limited and sub- 
 succour, the enemy of the opposite belligerent. It only Sldy ' 
 becomes such, so far as respects the auxiliary forces thus 
 supplied ; in all other respects it remains neutral. Such, for 
 example, have long been the accustomed relations of the con- 
 federated Cantons of Switzerland with the other European 
 powers (n). 
 
 (I) Vattel, liv. ii. ch. 16, 238. Flassan, Histoire de la Diplomatie 
 Fran9aise, torn. vii. p. 195. 
 
 (m) Vattel, 239. [See Hertslet, Map of Europe by Treaty, Index, tit. 
 Guaranty]. 
 
 (n) Vattel, Droit des Gens, liv. iii. ch. 6, 7982.
 
 336 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 280. Grotius, and the other text writers, hold that the casus 
 fcederis of fcederis of a defensive alliance 'does not apply to the case of 
 ainaS S1Ve a war man i fes % unjust, that is, to a war of aggression on 
 the part of the power claiming the benefit of the alliance. 
 And it is even said to *be a tacit condition annexed to every 
 treaty made in time of peace, stipulating to afford succour in 
 time of war, that the stipulation is applicable only to a just 
 war. To promise assistance in an unjust war would be an 
 obligation to commit injustice, and no such contract is valid. 
 But, it is added, this tacit restriction in the terms of a 
 ^ general alliance can be applied only to a manifest case of un- 
 just aggression on the part of the -othec contracting party, 
 and cannot be used as a pretext to elude the performance of a 
 positive and unequivocal engagement, without justly exposing 
 the ally to the imputation of bad faith. In doubtful cases, 
 the presumption ought rather to be in favour of our con- 
 federate, and of the justice of his quarrel (o). 
 
 The application of these general principles must depend 
 upon the nature and terms of the particular guaranties con- 
 tained in the treaty in question. This will best be illustrated 
 by specific examples. 
 
 281. Thus, the States-General of Holland were engaged, pre- 
 between viously to the war of 1756, between France and Great Britain, 
 Great m three different guaranties and defensive treaties with the 
 Holland. latter power. The first was the original defensive alliance, 
 forming the basis of all the subsequent compacts between the 
 two countries, concluded at Westminster in 1678. In the 
 preamble to this treaty, the preservation of each other's 
 dominions was stated as the cause of making it ; and it stipu- 
 lated a mutual guaranty of all they already enjoyed, or might 
 thereafter acquire by treaties of peace, "in Europe only." 
 They further guaranteed all treaties which were at that time 
 made, or might thereafter conjointly be made, with any other 
 power. They stipulated also to defend and preserve each 
 other in the possession of all towns and fortresses which did 
 at that time belong, or should in future belong, to either of 
 them ; and, that for this purpose when either nation was 
 
 (o) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, 13 ; cap. 25, 4. 
 Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Uens, liv. ii. 
 ch. 12, 168 ; liv. iii. ch. 6, 8696.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 337 
 
 attacked or molested, the other should immediately succour 
 it with a certain number of troops and ships, and should be 
 obliged to break with the aggressor in two months after the 
 party that was already at war should require it ; and that they 
 should then act conjointly, with all their forces, to bring the 
 common enemy to a reasonable accommodation. 
 
 The second defensive alliance then subsisting between 
 Great Britain and Holland was that stipulated by the treaties 
 of barrier and succession, of 1709 and 1713, by which the 
 Dutch barrier on the side of Flanders was guaranteed on the 
 one part, and the Protestant succession to the British crown, 
 on the other ; and it was mutually stipulated, that, in case 
 either party should be attacked, the other should furnish, 
 at the requisition of the injured party, certain specified 
 succours ; and if the danger should be such as to require a 
 greater force, the other ally should be obliged to augment his 
 succours, and ultimately to act with all his power in open war 
 against the aggressor. 
 
 The third and last defensive alliance between the same 
 powers, was the treaty concluded at the Hague in 1717, to 
 which France was also a party. The object of this treaty 
 was declared to be the preservation of each other reciprocally, 
 and the possession of their dominions, as established by the 
 treaty of Utrecht. The contracting parties stipulated to 
 defend all and each of the articles of the said treaty, as far 
 as they relate to the contracting parties respectively, or each 
 of them in particular ; and they guarantee all the kingdoms, 
 provinces, states, rights, and advantages, which each of the 
 parties at the signing of that treaty possessed, confining this 
 guaranty to Europe only. The succours stipulated by this 
 treaty were similar to those above mentioned ; first, interpo- 
 sition of good offices, then a certain number of forces, and 
 lastly, declaration of war. This treaty was renewed by the 
 quadruple alliance of 1718, and by the treaty of Aix-la-Cha- 
 pelle, 1748. 
 
 It was alleged on the part of the British court, that the 282. 
 States- General had refused to comply with the terms of these En s 1: " 1<i 
 treaties, although Minorca, a possession in Europe which had States- 
 been secured to Great Britain by the treaty of Utrecht, was General - 
 attacked by France.
 
 338 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 Two answers were given by the Dutch government to the 
 demand of the stipulated succours : 
 
 1. That Great Britain was the aggressor in the war; and 
 that, unless she had been first attacked by France, the casus 
 foederis did. not arise. 
 
 2. That admitting that France was the aggressor in 
 Europe, yet it was only in consequence of the hostilities 
 previously commenced in America, which were expressly 
 excepted from the terms of the guaranties. 
 
 283. TO the first of these objections it was irresistibly replied by 
 
 Lord Liver-, the elder Lord Liverpool, that although the treaties which 
 pool. contained these guaranties were calKcTctefensive treaties only, 
 
 yet the words of them, and particularly that of 1678, which 
 was the basis of all the rest, by no means expressed the 
 point clearly in the sense of the objection, since they 
 guaranteed " all the rights and possessions " of both parties, 
 against "all kings, princes, republics, and states; " so that 
 if either should "be attacked or molested by hostile act, or 
 open war, or in any other manner disturbed in the possession 
 of his states, territories, rights, immunities, and freedom of 
 commerce," it was then declared what should be done in 
 defence of these objects of the guaranty, by the ally who 
 was not at war, but it was nowhere mentioned as necessary 
 that the attack of these should be the first injury or attack. 
 "Nor," continues Lord Liverpool, "doth this loose manner 
 of expression appear to have been an omission or inaccuracy. 
 They who framed these guaranties certainly chose to leave 
 this question, without any further explanation, to that good 
 faith which must ultimately decide upon all contracts between 
 sovereign States. It is not presumed that they hereby meant, 
 that either party should be obliged to support every act of 
 violence or injustice which his ally might be prompted to 
 commit through views of interest or ambition ; but, on the 
 other hand, they were cautious of affording too frequent 
 opportunities to pretend that the case of the guaranties did 
 not exist, and of eluding thereby the principal intention of 
 the alliance ; both these inconveniences were equally to be 
 avoided ; and they wisely thought fit to guard against the 
 latter, no less than the former. They knew that in every war 
 between civilized nations, each party endeavours to throw
 
 RIGHTS OF NEGOTIATION AND TREATIES, 339 
 
 upon the other the odium and guilt of the first act of provo- 
 cation and aggression ; and that the worst of causes was 
 never without its excuse. They foresaw that this alone would 
 unavoidably give sufficient occasion to endless cavils and dis- 
 putes, whenever the infidelity of an ally inclined him to avail 
 himself of them. To have confined, therefore, the case of 
 the guaranty by a more minute description of it, and under 
 closer restrictions of form, would have subjected to still greater 
 uncertainty a point which, from the nature of the thing 
 itself, was already too liable to doubt :- they were sensible 
 that the cases would be infinitely various ; that the motives 
 to self-defence, though just, might not always be apparent ; 
 that an artful enemy might disguise the most alarming pre- 
 parations ; and that an injured nation might be necessitated 
 to commit even a preventive hostility, before the danger 
 which caused it could be publicly known. Upon such con- 
 siderations, these .negotiators wisely thought proper to give 
 the greatest latitude to this question, and to leave it open to 
 a fair and liberal construction, such as might be expected 
 from friends, whose interests these treaties were supposed to 
 have forever united " (p). 
 
 His lordship's answer to the next objection, that the hos- 
 tilities, commenced by France in Europe, were only in conse- 
 quence of hostilities previously commenced in America, seems 
 equally satisfactory, and will serve to illustrate the good faith 
 by which these contracts ought to be interpreted. " If the 
 reasoning on which this objection is founded was admitted, it 
 would alone be sufficient to destroy the effects of every 
 guaranty, and to extinguish the confidence which nations 
 mutually place in each other, on the faith of defensive 
 alliances ; it points out to the enemy a certain method of 
 avoiding the inconvenience of such an alliance ; it shows him 
 where he ought to begin his attack. Let only the first effort 
 be made upon some place not included in the guaranty, and, 
 after that, he may pursue his views against its very object, 
 without any apprehension of the consequence. Let France 
 first attack some little spot belonging to Holland, in America, 
 
 ( p) Discourse on the Conduct of the Government of Great Britain in respei 
 to Neutral Nations. By Charles, Karl of Liverpool. 1st e.il. 17S7. 
 
 ., n
 
 340 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 and her barrier would be no longer guaranteed. To argue in 
 this manner is to trifle with the most solemn engagements. 
 The proper object of guaranties is the preservation of some 
 particular country to some particular power. The treaties 
 above mentioned promise the defence of the dominions of 
 each party in Europe, simply and absolutely, whenever they 
 are attacked or molested. If, in the present war, the first 
 attack was made out of Europe, it is manifest that long ago 
 an attack hath been made in Europe ; and that is, beyond a 
 doubt, the case of these guaranties. 
 
 "Let us try, however, if we cannot discover what hath 
 once been the opinion of Holland upon^point of this nature. 
 It hath already been observed that the defensive alliance 
 between England and Holland, of 1678, is but a copy of the 
 first twelve articles of the French Treaty of 1662. Soon after 
 Holland had concluded this last alliance with France, she 
 became engaged in a war with England. The attack then 
 began, as in the present case, out of Europe, on the coast of 
 Guinea ;. and the cause of the war was also the same, a dis- 
 puted right to certain possessions out of the bounds of 
 Europe, some in Africa, and others in the East Indies. 
 Hostilities having continued for some time in those parts, 
 they afterwards commenced also in Europe. Immediately 
 upon this, Holland declared that the case of that guaranty 
 did exist, and demanded the succours which were stipulated. 
 I need not produce the memorials of their ministers to prove 
 this ; history sufficiently informs us that France acknowledged 
 the claim, granted the succours, and entered even into open 
 war in the defence of her ally. Here, then, we have the sen- 
 timents of Holland on the same article, in a case minutely 
 parallel. The conduct of France also pleads in favour of the 
 same opinion, though her concession, in this respect, checked 
 at tl tat time her youthful monarch in the first essay of his am- 
 bition, delayed for some months his entrance into the Spanish 
 provinces, and brought on him the enmity of England" (q). 
 284. The nature and extent of the obligations contracted by 
 between treaties of defensive alliance and guaranty, will be further 
 Great illustrated by the case of the treaties subsisting between 
 
 Britain and 
 Portugal. 
 
 (q) Liverpool's Discourse, p. 86.
 
 EIGHTS OF NEGOTIATION AND TREATIES. 841 
 
 Great Britain and Portugal, which has been before alluded to 
 for another purpose (r). The treaty of alliance, originally con- 
 cluded between these powers in 1642, immediately after the 
 revolt of the Portuguese nation against Spain, and the es- 
 tablishment of the House of Braganza on the throne, was 
 renewed, in 1654, by the Protector, Cromwell, and again con- 
 firmed by the Treaty of 1661, between Charles II. and 
 Alfonzo VI., for the marriage of the former prince with 
 Catharine of Braganza. This last-mentioned treaty fixes 
 the aid to be given, and declares that Great Britain will 
 succour Portugal " on all occasions, when that country is 
 attacked." By a secret article, Charles II., in consideration of 
 the cession of Tangier and Bombay, binds himself " to de- 
 fend the colonies and conquests of Portugal against all 
 enemies, present or future." In 1703, another treaty of 
 defensive and perpetual alliance was concluded at Lisbon, be- 
 tween Great Britain and the States- General on the one side, 
 and the King of Portugal on the other ; the guaranties con- 
 tained in which were again confirmed by the treaties of peace 
 at Utrecht, between Portugal and France, in 1713, and be- 
 tween Portugal and Spain, in 1715. On the emigration of 
 the Portuguese royal family to Brazil, in 1807, a convention 
 was concluded between Great Britain and Portugal, by which 
 the latter kingdom is guaranteed to the lawful heir of the 
 House of Braganza, and the British government promises 
 never to recognize any other ruler. By the more recent 
 treaty between the two powers, concluded at Bio Janeiro, in 
 1810, it was declared "that the two powers have agreed on 
 an alliance for defence, and reciprocal guaranty against every 
 hostile attack, conformably to the treaties already subsisting 
 between them, the stipulations of which shall remain in full 
 force, and are renewed by the present treaty in their fullest 
 and most extensive interpretation." This treaty confirms the 
 stipulation of Great Britain to acknowledge no other sovereign 
 of Portugal but the heir of the House of Bragauza. The 
 Treaty of Vienna, of the 22nd January, 1815, between Great 
 Britain and Portugal, contains the following article: " The 
 treaty of alliance at Rio Janeiro, of the 19th February, 1810, 
 
 (>) Vide ante, pt. ii. eh. 1, 68.
 
 34-2 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 b}ing founded on temporary circumstances, which have 
 happily ceased to exist, the said treaty is hereby declared to 
 be of no effect ; without prejudice, however, to the ancient 
 treaties of alliance, friendship, and guaranty, which have so 
 long and so happily subsisted between the two crowns, and 
 which are hereby renewed by the high contracting parties, and 
 acknowleged to be of full force and effect." 
 
 ^ 285. Such was the nature of the compacts of alliance and 
 
 fcederis guaranty subsisting between Great Britain and Portugal, at 
 of the the time when the interference of Spain in the affairs of the 
 latter kingdom compelled the British government to interfere, 
 for the protection of the Portuguese nation\against the hostile 
 designs of the Spanish court. In addition to the grounds 
 stated in the British Parliament, to justify this counteracting 
 interference, it was urged, in a very able article on the affairs 
 of Portugal, contemporaneously published in the Edinburgh 
 Review, that although, in general, an alliance for defence and 
 guaranty does not impose any obligation, nor, indeed, give 
 any warrant to interfere in intestine divisions, the peculiar 
 circumstances of the case did constitute the casus faderis 
 contemplated by the treaties in question. A defensive 
 alliance is a contract between several States, by which they 
 agree to aid each other in their defensive (or, in other words, 
 in their just) wars against other States. Morally speaking, 
 no other species of alliance is just, because no other species 
 of war can be just. The simplest case of defensive war is, 
 where our ally is openly invaded with military force, by a 
 power to whom she has given no just cause of war. If 
 France or Spain, for instance, had marched an army into 
 Portugal to subvert its constitutional government, the duty of 
 England would have been too evident to render a statement of 
 it necessary. But this was not the only case to which the 
 treaties were applicable. If troops were assembled and pre- 
 parations made, with the manifest purpose of aggression 
 against an ally ; if his subjects were instigated to revolt, and 
 his soldiers to mutiny; if insurgents on his territory were 
 supplied with money, with arms, and military stores ; if, at 
 the same time, his authority were treated as an usurpation, 
 and all participation in the protection granted to other 
 foreigners refused to the well-affected part of his subjects,
 
 IUGHTS OF NEGOTIATION AND TREATIES. 343 
 
 while those who proclaimed their hostility to his person were 
 received as the most favoured strangers ; in such a combination 
 of circumstances, it could not be doubted that the case fore- 
 seen by defensive alliances would arise, and that he would be 
 entitled to claim that succour, either general or specific, for 
 which his alliances had been stipulated. The wrong would be as 
 complete, and the danger might be as great, as if his territory 
 were invaded by a foreign force. The mode chosen by his 
 enemy might even be more effectual, and more certainly de- 
 structive, than open war. Whether the attack made on him be 
 open or secret, or if it be equally unjust, and expose him to 
 the same peril, he is equally authorized to call for aid. All 
 contracts, under the law of nations, are interpreted as ex- 
 tending to every case manifestly and certainly parallel to 
 those cases for which they provide by express words. In that 
 law, which has no tribunal but the conscience of mankind, 
 there is no distinction between the evasion and the violation 
 of a contract. It requires aid against disguised as much as 
 against avowed injustice ; and it does not fall into so gross an 
 absurdity as to make the obligation to succour less where the 
 danger is greater. The only rule for the interpretation of 
 defensive alliances seems to be, that every wrong which gives 
 to one ally a just cause of war entitles him to succour from 
 the other ally. The right to aid is a secondary right, inci- 
 dent to that of repelling injustice by force. "Wherever he 
 may morally employ his own strength for that purpose, he 
 may, with reason, demand the auxiliary strength of his 
 ally (s). Fraud neither gives or takes away any right. Had 
 France, in the year 1715, assembled squadrons in her har- 
 bours and troops on her coasts ; had she prompted and dis- 
 tributed writings against the legitimate government of 
 George I. ; had she received with open arms battalions of 
 deserters from his troops, and furnished the army of the Earl 
 of Mar with pay and arms when he proclaimed the Pretender ; 
 Great Britain, after demand and refusal of reparation, would 
 have had a perfect right to declare war against France, and, 
 
 (s) Vattel's reasoning is still more conclusive in a case of guaranty : Si 
 1'alliance defensive porte tine guarautie de toutes les terres que 1'allie possede 
 actuellement, le can its fader is se deploie toutes les fois i^ue ces terres sont 
 envahies on, mcnapecs d 1 iiicnsion." Liv. iii. cli. 6, 91.
 
 344 
 
 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 Hostages 
 for the 
 execution 
 of treaties. 
 
 287. 
 
 Interpreta- 
 tion of 
 treaties. 
 
 consequently, as complete a title to the succour which the 
 States-General were bound to furnish, by their treaties of 
 alliance and guaranty of the succession of the House of 
 Hanover, as if the pretended king, James III., at the head 
 of the French army, were marching on London. The war 
 would be equally defensive on the part of England, and the 
 obligation equally incumbent on Holland. It would show a 
 more than ordinary defect of understanding, to confound a 
 war defensive in its principles with a war defensive in its 
 operations. Where attack is th^best mode of providing for 
 the defence of a State, the war fs defensive in principle, 
 though the operations are offensive. Where the war is un- 
 necessary to safety, its offensive character is not altered ; 
 because the wrongdoer is reduced to defensive warfare. So a 
 State, against which dangerous wrong is manifestly medi- 
 tated, may prevent it by striking the first blow, without 
 thereby waging a war in its principle offensive. Accordingly, 
 it is not every attack made on a State that will entitle it to 
 aid under a defensive alliance ; for if that State had given 
 just cause of war to the invader, the war would not be, on its 
 part, defensive in principle (). 
 
 The execution of a treaty is sometimes secured by hostages 
 given by one party to the other. The most recent and re- 
 markable example of this practice occurred at the peace of 
 Aix-la-Chapelle, in 1748 ; where the restitution of Cape 
 Breton, in North America, by Great Britain to France, was 
 secured by several British peers sent as hostages to Paris (u). 
 
 Public treaties are to be interpreted like other laws and 
 contracts. Such is the inevitable imperfection and ambiguity 
 of all human language, that the mere words alone of any 
 writing, literally expounded, will go a very little way towards 
 explaining its meaning. Certain technical rules of interpreta- 
 tion have, therefore, been adopted by writers on ethics and 
 public law, to explain the meaning of international compacts, 
 in cases of doubt. These rules are fully expounded by 
 Grotius and his commentators; and the reader is referred 
 
 (t'i " Dans une alliance defensive le casus faederis n'existe pas tout <le suite 
 des que notre allie cst attaque. 11 faut voi'r encore s'il n'a point donne h son 
 ennemi un juste sujet de lui faire la guerre. S'il est dans le tort, il faut 
 1'engager a donner une satisfaction raisonnable. " Vattel, liv. iii. ch. 6, 90, 
 
 () Vattel, liv. ii. ch. 16, 245261.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 345 
 
 especially to the principles laid down by Vattel and Rtither- 
 forth, as containing the most complete view of this im- 
 portant subject (#). 
 
 The dispute between England and the United States respecting 287a, 
 the settlement of the North West boundary between the Union and Rules for 
 Canada, turned on the interpretation to be put upon existing treaties, ^terpreta- 
 England submitted to the Emperor of Germany, who was appointed ar- 
 bitrator, the following rulea of interpretation. 
 
 1. The words of a treaty are to be taken to be Used in the sense in 
 which they were commonly used at the time when the treaty was en- 
 tered into. 
 
 2. In interpreting any expressions in a treaty, regard must be had to 
 the context and spirit of the whole treaty. 
 
 3. The interpretation should be drawn from the connection and re- 
 lation of the different parts. 
 
 4. The interpretation should be suitable to the reason of the treaty. 
 
 5. Treaties are to be interpreted in a favourable, rather than an odious 
 sense. 
 
 6. Whatever interpretation tends to change the existing state of things 
 at the time the treaty was made is to be ranked in the class of odious 
 things (T/). 
 
 Negotiations are sometimes conducted under the mediation 288. 
 of a third power, spontaneously tendering its good offices for Mediation, 
 that purpose, or upon the request of one or both of the liti- 
 gating powers, or in virtue of a previous stipulation for that 
 purpose. If the mediation is spontaneously offered, it may 
 be refused by either party ; but if it is the result of a pre- 
 vious agreement between the two parties, it cannot be refused 
 without a breach of good faith. When accepted by both par- 
 ties, it becomes the right and the duty of the mediating 
 power to interpose its advice, with a view to the adjustment 
 of their differences. It thus becomes a party to the negotia- 
 tion, but has no authority to constrain either party to adopt 
 its opinion. Nor is it obliged to guarantee the performance 
 of the treaty concluded under its mediation, though, in point 
 of fact, it frequently does so (z}. 
 
 It was stipulated at the Treaty of Paris (1856), that " If there should 288a ; 
 arise between the Sublime Porte and one or more of the other signinf The Treaty 
 
 of Paris, 
 
 (x) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 16. Vattel, liv. ii. ch. 17 1856 ' 
 Rntherforth, lust. b. ii. ch. 7. 
 
 (//) [Parl. Papers, N. America, 1873 (No. 3), pp. 69. Vattel, 1. ii. ch 17 
 271, 285-287, 301 ; ch. 18, 305]. 
 
 (z) Kliiber, Droit des Gens Moderne de 1' Europe, pt. ii. tit. 2, 1 ch 2 
 160.
 
 346 
 
 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 288b. 
 
 Arbitra- 
 tion. 
 
 288c. 
 
 Con- 
 ferences. 
 
 Diplomatic 
 history. 
 
 Powers, any misunderstanding which might endanger the maintenance 
 of their relations, the Sublime Porte and each of such Powers, before 
 having recourse to the use of force, shall afford the other contracting 
 parties the opportunity of preventing such an extremity by means of 
 their mediation " (a). At a Conference of the Powers who signed the 
 Treaty of Paris, their Plenipotentiaries, in a protocol dated 14th April, 
 1856, expressed " in the name of their Governments, the wish that States 
 between which any serious misunderstanding may arise, should, before 
 appealing to arms, have recourse, as far as circumstances might allow, to 
 the good offices of a friendly Power. The Plenipotentiaries hope that 
 the Governments not represented at the Congress, will unite in the sen- 
 timent which has inspired the wish recorded in the present protocol " (&). 
 
 Nevertheless, it can hardly be said that wars have been less frequent 
 since these declarations, even among the Powers actually making them. 
 The protocol was invoked to prevent the Dano-German war of 1864, and 
 the Austro-Prussian war of 1866, but without effect. The Conference 
 which met at Constantinople in 1876 attempted to settle the dispute 
 between Russia and Turkey in a peaceable manner, but it failed to bring 
 about such a result. Lord Granville, in 1870, appealed to France and 
 Prussia to have recourse to mediation, but in vain (c). Even after hos- 
 tilities had commenced, Her Majesty's Government assured France that 
 " if at any time recourse should be had to their good offices, they would 
 be freely given and zealously exerted " (d). 
 
 Yet though Avars have been unfortunately frequent of late years 
 several serious disputes have also been settled by the peaceful method of 
 an appeal to arbitration. The most notable instance of this in recent 
 times is the Treaty of Washington, 1871. By that convention, five 
 different causes of disagreement between England and the United States, 
 some of them of very long standing, were referred to different tribunals 
 of arbitration, and a peaceful solution obtained. It is sincerely to be 
 hoped that such an example may be followed in the future by other 
 States. 
 
 There are also other instances of arbitration. Thus, in 1862 the King 
 of the Belgians acted as arbitrator between England and Brazil (e). The 
 same Sovereign had also been appointed, in 1858, to decide a dispute 
 between the United States and Chili (/). 
 
 Another method of peaceably settling international disputes, is by 
 summoning a conference of various States, and discussing the claims 
 of each party. This has frequently been done in Europe (rj). 
 
 The art of negotiation seems, from its very nature, hardly 
 capable of being reduced to a systematic science. It depends 
 
 (a) [Art. viii. See Hertslet, Map of Europe, vol. ii. p. 1255]. 
 
 (b) [Ibid. p. 1279]. 
 
 (c) [Annual Register, 1870. Pub. Docs. p. 204]. 
 
 (d) [Annual Register, 1871. Pub. Docs. p. 248]. 
 
 (e) [Calvo, Droit Int. vol. i. p. 794]. 
 
 (/) [Ibid. p. 795. Several other instances are there collected. See also, 
 Revue de Droit Int. 1874, p. 117, and 1875, p. 57]. 
 (g) [See Calvo, p. 799.]
 
 RIGHTS OF NEGOTIATION AND TREATIES. 347 
 
 essentially on personal character and qualities, united with a 
 knowledge of the world and experience in business. These 
 talents may be strengthened by the study of history, and es- 
 pecially the history of diplomatic negotiations ; but the want 
 of them can hardly be supplied by any knowledge derived 
 merely from books. One of the earliest works of this kind 
 is that commonly called Le Parfait Ambassadeur, originally 
 published in Spanish by Don Antonio de Vera, long time am- 
 bassador of Spain at Venice, who died in 1658. It was sub- 
 sequently published by the author in Latin, and different 
 translations appeared in Italian and French. Wicquefort's 
 book, published in 1679, under the title of L' Ambassadeur et 
 ses Fonctions, although its principal object is to treat of the 
 rights of legation, contains much valuable information upon 
 the art of negotiation, Callieres, one of the French plenipo- 
 tentiaries at the treaty of Ryswick, published in 1716, a work 
 entitled De la Manier,e de Negocier avec les Souverains, which 
 obtained considerable reputation. The Abbe Mably also 
 attempted to treat this subject systematically, in an essay 
 entitled Principes des Negotiations, which is commonly pre- 
 fixed as an introduction to his Droit Publique de V-Europe in 
 the various editions of the works of that author. A catalogue 
 of the different histories which have appeared of particular ne- 
 gotiations would be almost interminable, but nearly all that is 
 valuable in them will be found collected in the excellent work 
 of M. Flassan, entitled UHistoire de la Diplomatic Francaise. 
 The late Count de Segur's compilation from the papers of 
 Favier, one of the principal secret agents employed in the 
 double diplomacy of Louis XV., entitled Politique de tons les 
 Cabinets de I" Europe pendant les Regnes de Louis XV. et de 
 Louis XVI.) with the notes of the able and experienced 
 editor, is a work which also throws great light upon the his- 
 tory of French diplomacy. A history of treaties from the 
 earliest times to the emperor Charlemagne, collected from the 
 ancient Latin and Greek authors, and from other monuments 
 of antiquity, was published by Barbeyrac in 1739 (h). It had 
 been preceded by the immense collection of Dumont, em- 
 bracing all the public treaties of Europe from the age of 
 
 (h) Histoire des Auciens Traites, par Barbeyrac, forming the first volume of 
 turnout's Supplement an Corps Diplomatique.
 
 RIGHTS OF NEGOTIATION AND TREATIES. 
 
 Charlemagne to the commencement of the eighteenth cen- 
 tury (i). jpia^best collections of the more modern Euro- 
 pean treaties are those published at different periods by Pro- 
 fessor Martens, of Gottingen, including the most important 
 public acts upon which the present conventional law of 
 Europe is founded. To these may be added Koch's Histoire 
 abrfyee des Traites de Paix depuis la Paix de Westphalie, 
 continued by Scholl. A complete collection of the proceed- 
 ings of the congress of Vienna has also been published in 
 German, by Kliiber (&). 
 
 The most complete, and indeed the only collection of the treaties, by 
 Hertslet's which Great Britain is bound, is published under the name of Hertslet's 
 works. Commercial treaties. One of the most useful works to all students of in- 
 
 ternational law and modern European history has recently been published 
 by Mr. Hertslet, entitled " The Map of Europe by Treaty." All treaties 
 and other important documents relating to the international affairs of 
 Europe, from 1815 to 1875, are there collected and arranged in chrono- 
 logical order. 
 
 The index to this work is one of the most remarkable and lucid ever 
 compiled, and a reference to it will enable the student to trace the 
 history of any international transaction, within the specified period, with 
 the greatest ease. 
 
 (i) Corps Universel Diplomatique du Droit des Gens, &e., 8 tomes, foL 
 Amsterd. 1726 1731. Supplement au Corps Universel Diplomatique,. 
 5 tomes, fol. 1739. 
 
 (k) Acteu des Wiener Congresses in den Jahren, 1814 und 1815 ; von 
 3. L. Kliiber, Erlangen, 1815 und 1816 ; 6 Bde. 8vo,
 
 PART FOURTH. 
 
 INTERNATIONAL RIGHTS OF STATES IN THEIR 
 HOSTILE RELATIONS. 
 
 CHAPTER I. 
 
 COMMENCEMENT OF WAE, AND ITS IMMEDIATE EFFECTS. 
 
 THE independent 'Societies of men, called States, acknow- 
 ledge no common arbiter or judge, except such as are consti- forcible 
 tuted by special compact. The law by which they are ^t^ e s en 
 governed, or profess to be governed, is deficient in those nations, 
 positive sanctions which are annexed to the municipal code of 
 each distinct society. Every State has therefore a right to 
 resort to force, as the only means of redress for injuries 
 inflicted upon it by others, in the same manner as individuals 
 would be entitled to that remedy were they not subject to 
 the laws of civil society. Each State is also entitled to judge 
 for itself, what are the nature and extent of the injuries which 
 will justify such a means of redress. 
 
 Among the various modes of terminating the differences 
 between nations, by forcible means short of actual war, are 
 the following : 
 
 1. By laying an embargo or sequestration on the ships and 
 goods, or other property of the offending nation, found within 
 the territory of the injured State. 
 
 2. By taking forcible possession of the thing in contro- 
 versy, by securing to yourself by force, and refusing to the 
 other nation, the enjoyment of the right drawn in question. 
 
 3. By exercising the right of vindictive retaliation (retorsio 
 facti), or of amicable retaliation (retorsion de droii) ; by which 
 last, the one nation applies, in its transactions with the other,
 
 350 COMMENCEMENT OF WAR, 
 
 the same rule of conduct by which that other is governed 
 under siimla>circurnstances. 
 
 4. By making reprisals upon the persons and r things 
 belonging to the offending nation, until a satisfactory repara- 
 tion is made for the alleged injury (a). 
 
 291. This last seems to extend to every species of forcible means 
 Reprisals. f QT p rocur i n g re dress, short of actual war, and, of course, to 
 include all the others above enumerated. Reprisals are nega- 
 tive, when a State refuses to fulfil a perfect obligation which 
 it has contracted, or to permit another nation to enjoy a right 
 which it claims. They are positive, when they consist in 
 seizing the persons and effects belonging to the other nation, 
 in order to obtain satisfaction (&). 
 
 Reprisals are also either general or special. They are 
 general, when a State which has received, or supposes it has 
 received, an injury from another nation, delivers commissions 
 to its officers and subjects to take the persons and property 
 belonging to the other nation, wherever the same may be 
 found. It is, according to present usage, the first step which 
 is usually taken at the commencement of a public war, and 
 may be considered as amounting to a declaration of hostilities, 
 unless satisfaction is made by the offending State. Special 
 reprisals are, where letters of marque are granted, in time of 
 peace, to particular individuals who have suffered an injury 
 from the government or subjects of another nation (c). 
 
 Reprisals are to be granted only in case of a clear and open 
 denial of justice. The right of granting them is vested in 
 the sovereign or supreme power of the State, and, in former 
 times, was regulated by treaties and by the municipal ordi- 
 nances of different nations. Thus, in England, the statute of 
 4 Hen. V., cap. 7, declares, " That if any subjects of the 
 realm are oppressed in time of peace by any foreigners, the 
 king will grant marque in due form to all that feel themselves 
 grieved;" which form is specially pointed out, and directed 
 to be observed in the statute. So also, in France, the cele- 
 brated marine ordinance of Louis XIV. of 1681, prescribed the 
 
 (a) Vattel, liv. ii. ch. 18. Kliiber, Droit des Gens Moderne de 1'Europe, 
 234. 
 
 (b) Kliiber, 234, note (c). 
 
 <c) Bynkersboek, Quaest. Jtir. Pub. lib. i. Duponceau's Transl. \>. 182, 
 note.
 
 AND ITS IMMEDIATE EFFECTS. 351 
 
 forms to be observed for obtaining special letters of marque by 
 French subjects against those of other nations. But these 
 special reprisals in time of peace have almost entirely fallen 
 into disuse (d). 
 
 Any of these acts of reprisal, or resort to forcible means of 29 ^- 
 redress between nations, may assume the character of war in reprisals. 
 case adequate satisfaction is refused by the offending State. 
 "Reprisals," says Vattel, " are used between nation and nation, 
 in order to do themselves justice when they cannot otherwise 
 obtain it. If a nation has taken possession of what belongs to 
 another, if it refuses to pay a debt, to repair an injury, or give 
 adequate satisfaction for it, the latter may seize something 
 belonging to the former, and apply it to its own advantage, till 
 it obtains payment of what is due, together with interest and 
 damages ; or keep it as a pledge till the offending nation has 
 refused ample satisfaction. The effects thus seized are pre- 
 served, while there , is any hope of obtaining satisfaction or 
 justice. As soon as that hope disappears they are confis- 
 cated, and then reprisals are accomplished. If the two 
 nations, upon this ground of quarrel, come to an open rup- 
 ture, satisfaction is considered as refused from the moment 
 that war is declared, or hostilities commenced ; and then, also, 
 the effects seized may be confiscated " (e). 
 
 Thus, where an embargo was laid on Dutch property in the 2&3. 
 ports of Great Britain, on the rupture of the peace of Amiens, ^JjJJJ to 
 in 1803, under such circumstances as were considered by the declaration 
 British government as constituting a hostile aggression on the 
 part of Holland, Sir W. Scott (Lord S to well), in delivering 
 his judgment in this case, said, that " the seizure was at first 
 equivocal; and if the matter in dispute had terminated in 
 reconciliation, the seizure would have been converted into a 
 mere civil embargo, so terminated. Such would have been 
 the retroactive effect of that course of circumstances. On 
 the contrary, if the transaction end in hostility, the retro- 
 active effect is exactly the other way. It impresses the direct 
 hostile character upon the original seizure ; it is declared to 
 be no embargo ; it is no longer an equivocal act, subject to 
 
 (d) Vattel, Droit des Gens, liv. ii. ch. 18, 342346. Bynkershoek, 
 Qnsest. Jur. Pub. lib. i. cap. 24. Martens, Precis, liv. viii. ch. 2, 260. 
 Martens, Essai concernant les Armateurs, 4. 
 
 (e) Vattel, Droit des Gens, liv. ii. ch. 1 8, 342. 
 
 t
 
 352 COMMENCEMENT OF WAR, 
 
 two interpretations ; there is a declaration of the animus by 
 which it is done ; that it was done hostili animo, and it is 
 to he considered as a hostile measure, ab initio, against per- 
 sons guilty of injuries which they refuse to redeem, by any 
 amicable alteration of their measures. This is the necessary 
 course, if no particular compact intervenes for the restora- 
 tion of such property, taken before a formal declaration of 
 hostilities "(/). 
 
 293a. One of the last cases of reprisals being enforced by England was not a 
 !ase o:~ ~ 
 Pacific 
 
 Case of Don ver y dignified one, and ended in something like a farce. Don Paeifico, 
 
 a native of Gibraltar, and consequently a British subject, went to reside 
 at Athens, and while there, in 1849, a mob, aided, it was said by Greek 
 soldiers, broke into and plundered his house. Paeifico did not apply 
 to the Greek tribunals for redress, but invoked the aid of England. 
 On the refusal of Greece to grant compensation, the British fleet 
 was ordered to lay an embargo on all Greek vessels in Greek ports. 
 France offered her mediation, but Greece was practically compelled 
 to accept the terms imposed by England. Three commissioners were 
 appointed to examine Pacifico's claims. These had now swollen to 
 ,21,295 Is. 4d., and the commissioners, after duly examining them, 
 awarded him .150 ! (g) The English Foreign Secretary defended 
 these proceedings by alleging that to have recourse to the Greek tri- 
 bunals was at that time ridiculous, and that no justice could be expected 
 from them. Sir R. Phillimore however thinks that the evidence 
 of this was " not of that overwhelming character which alone could 
 warrant an exception from the well-known and valuable rule of inter- 
 national law upon questions of this description" (h), viz., the rule that 
 application must first be made to the local courts. 
 
 293b. In 1861, a British ship, The Prince of Wales, was wrecked on the 
 
 Reprisals Brazilian coast, and the English Consul came to the conclusion that the 
 
 against wreck had been plundered, and some of the sailors murdered. Compen- 
 
 1861. sation was demanded by England, and on its refusal, a British ship of 
 
 war blockaded Rio de Janeiro for six days, and five Brazilian ships were 
 
 captured. These were shortly after restored, and the sum of 3,200 
 
 paid by Brazil under protest. International relations were suspended 
 
 between England and Brazil until 1865, when the affair was settled by 
 
 the mediation of the King of Portugal (t). 
 
 293c. " There is yet another measure," says Sir R. Phillimore, " partaking 
 
 Droit also of a belligerent character, though exercised, strictly speaking, in 
 
 d'angarie. time of peac ^ called j, y ^ Yrench le droit d'angarie. It is an act of 
 
 the State by which foreign as well as private domestic vessels which 
 
 (/) The Bcedes Lust, 5 C. Rob. 246 ; [TJie Gertruyda, 2 C. Rob. 219 ; The 
 Theresa Bonita, 4 C. Rob. 431.] 
 
 (g) [Correspondence respecting M. Pacifico's claims. Parl. Papers, 1851]. 
 (fi) [Phillimore, vol. iii. p. 41 (2nd ed.)]. 
 (i) [Calvo, vol. i. 676].
 
 AND ITS IMMEDIATE EFFECTS. 353 
 
 happen to be within the jurisdiction of the State, are seized upon and 
 compelled to transport soldiers, ammunition, or other instruments of 
 war ; in other words, to become parties against their will to carrying on 
 direct hostilities against a power with whom they are at peace " (k). 
 
 During the Franco- German war of 1870, the German troops seized 
 upon six English vessels in the Seine, and scuttled them. Prince Bis- 
 marck admitted their destruction, and offered to pay the value according 
 to equitable estimation. He contended " that the measure in question, 
 however exceptional in its nature, did not overstep the bounds of inter- 
 national warlike usages. A pressing danger was at hand, and every 
 other means of averting* it was wanting ; the case was therefore one of 
 necessity, which even in time of peace may render the employment or 
 destruction of foreign property admissible, under reservation of indem- 
 nification." The German Chancellor then quoted the above passage 
 from Sir R. Phillimore's work (I). The English shipowners were after- 
 wards compensated for their loss. 
 
 The right of making war, as well as of authorizing reprisals, . 294 - 
 or other acts of vindictive retaliation, belongs in every civi- making 
 lized nation to the supreme power of the State. The exercise v ^ r m 
 of this right is regulated by the fundamental laws or muni- vested, 
 cipal constitution in each country, and may be delegated to 
 its inferior authorities in remote possessions, or even to a 
 commercial corporation such, for example, as the British 
 East India Company exercising, under the authority of the 
 State, sovereign rights in respect to foreign nations (m). 
 
 A contest by force between independent sovereign States 295. 
 is called a public war. If it is declared in form, or duly Public or 
 commenced, it entitles both the belligerent parties to all the war. 
 rights of war against each other. The voluntary or positive 
 law of nations makes no distinction in this respect between 
 a just and an unjust war. A war in form, or duly commenced, 
 is to be considered, as to its effects, as just on both sides. 
 "Whatever is permitted, by the laws of war, to one of the 
 belligerent parties, is equally permitted to the other (n). 
 
 A perfect war is where one whole nation is at war with 296. 
 another nation, and all the members of both nations are Pertect or 
 authorized to commit hostilities against all the members of war. 
 
 (k) [Phillimore, -vol. iii. p. 49]. 
 
 (1) [Annual Keg. 1871. Pub. Docts. p. 257]. 
 
 (m) Vattel, liv. iii. ch. 1, 4. Martens, Precis, &c., liv. viii. eh. 2, 
 260, 264. See ante, 17. 
 
 (n) Vattel, Droit des Gens, liv. iii. ch. 12. Rutherforth's Inst. b. ii. 
 ch. 9, 15. 
 
 A A
 
 354 COMMENCEMENT OF WAR, 
 
 the other, in every case and under every circumstance per- 
 mitted by the general laws of war. An imperfect war is 
 limited as to places, persons, and things (o). 
 
 A civil war between the different members of the same 
 society is what Grotius calls a mixed war ; it is, according to 
 him, public on the side of the established government, and 
 private on the part of the people resisting its authority. But 
 the general usage of nations regards such a war as entitling 
 both the contending parties to all the rights of war as against 
 each other, and even as respects neutral nations (p). 
 
 286a. It seems to be now settled that it is unnecessary in order to constitute 
 
 Civil war. a war> th a t "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 (q). Whether the struggle 
 is a war, or is not, is to be determined, not from the relation of the com- 
 batants to each other, but from the mode in which it is carried on. 
 
 During the civil war, the United States government treated the Con- 
 federates as belligerents in all matters relating to the war. Thus their 
 territory was for the time being considered as enemy territory, and the 
 subjects of the rebellious States as alien enemies (r). But this was only 
 a belligerent status. The union was declared to be indissoluble, and the 
 Confederate States, while endeavouring to leave it, never legally ceased 
 to be within it, or their subjects citizens of the Union (s). It was, how- 
 ever, necessary to accord a de facto existence to the Confederate govern- 
 ment, in certain matters not strictly rights of war. Thus the supreme 
 court held, that where land was sold to the rebel government, and was 
 then captured by the United States, it became the property of the United 
 States, thus recognizing the validity of a sale from the owner to the 
 Confederate government (t). Again, contracts payable in Confederate 
 notes were enforced, and the parties compelled to pay at the real, and 
 not the nominal, value of the notes, at the time when payment was due. 
 The notes were treated as a currency imposed upon the community by 
 irresistible force (). 
 
 297. A formal declaration of war to the enemy was once con- 
 Declaration s j<i ere( i necessary to legalize hostilities between nations. It 
 
 far neces- 
 
 (o) Such were the limited hostilities authorized by the United States against 
 France in 1798. Dallas' Hep. vol. ii. p. 21 ; vol. iv. p. 37. 
 
 (p) Vide ante, pt. i. ch. 2, 26, et seq. 
 
 (q) [The Prize Causes, 2 Black. 666 ; Rose v. Himely, 4 Cranch, 272]. 
 
 (r) [Thorington v. Smith, 8 Wallace, 10 ; Mrs. Alexander's cotton, 2 
 Wallace, 404]. 
 
 (s) [Texas v. White, 7 Wallace, 726 ; White v. Hart, 13 Wallace, 646]. 
 
 (t) [V. S., Lyon et al v. Huekabee, 16 Wallace, 414], 
 
 (u) [The Confederate Note case, 19 Wallace, 556 ; Thorington v. Smith, 
 8 Wallace, 1 ; Hardner v. Woodruff, 15 Wallace, 448].
 
 AND ITS IMMEDIATE EFFECTS. 355 
 
 was uniformly practised by the ancient Komans, and by the 
 States of modern Europe until about the middle of the seven- 
 teenth century. The latest example of this kind was the de- 
 claration of war by France against Spain, at Brussels, in 1635, 
 by heralds at arms, according to the forms observed during 
 the middle age. The present usage is to publish a manifesto, 
 within the territory of the State declaring war, announcing 
 the existence of hostilities and the motives for commencing 
 them. This publication may be necessary for the instruction 
 and direction of the subjects of the belligerent State in respect 
 to their intercourse with the enemy, and regarding certain 
 effects which the voluntary law of nations attributes to war in 
 form. Without such a declaration, it might be difficult to 
 distinguish in a treaty of peace those acts which are to be 
 accounted lawful effects of war, from those which either nation 
 may consider as naked wrongs, and for which they may, under 
 certain circumstances, claim reparation (#). 
 
 A civil war is never declared, it becomes such by its accidents the 297a. 
 number, power, and organization of the persons who originate and carry No declara- 
 it on. The American civil war " sprang forth suddenly from the parent J|J^ 
 brain, a Minerva in the full panoply of war" (?/). The Crimean war 
 was preceded by every possible formality between England and Russia (z) ; 
 but in 1877 the Russian troops entered Turkish territory before any de- 
 claration had emanated from St. Petersburg. M. Calvo deems a decla- 
 ration necessary, " pour legitimer I'etat de guerre " (a), but he admits that 
 many recent wars have been commenced without this formality (b). 
 A war can exist de facto without any declaration, but in such a case 
 hostilities must have actually commenced (c) 
 
 As no declaration, or other notice to the enemy, of the 393 
 existence of war, is necessary, in order to legalize hostilities, Enemy's 
 and as the property of the enemy is, in general, liable to founTin 
 seizure and confiscation as prize of war, it would seem to * ]l tern - 
 follow as a consequence, that the property belonging to him commence- 
 
 t of 
 
 (x) Grotius, de Jur. Bel. ac Pac. lib. i. cap. 3, 4. Bynkershoek, Quaest. 
 Jur. Pub. lib. i. cap. 2. Rutherforth's lust. b. ii. ch. 9, 10. Vattel, Drolt 
 des Gens, liv. iii. ch. 4, 56. Kliiber, Droit des Geiia Moderne de 1'Europe, 
 
 (y) [The Prize Causes, 2 Black. 669]. 
 (z) [Phillimore, vol. iii. 64]. 
 
 (a) [Calvo, vol. ii. 714, p. 33]. 
 
 (b) [See also, The Nayade, 4 C. Rob. 253 ; The Eliza Ann, 1 Dpds. Ad. 247 ; 
 The Success, 1 Dods. Ad. 133]. 
 
 (c) [The Tevlonia, L. R. 4 P. C. 179]. 
 
 A A 2
 
 356 COMMENCEMENT OF WAR, 
 
 war, how an( j f ounc i w itbin the territory of the belligerent State at the 
 to conthj- commencement of hostilities, is liable to the same fate with 
 cation. kis othej, property wheresoever situated. But there is a 
 great diversity of opinions upon this subject among institu- 
 tional writers, and the tendency of modern usage between 
 nations seems to be, to exempt such property from the opera- 
 tions of war. 
 
 One of the exceptions to the general rule, laid down by the 
 text writers, which subjects all the property of the enemy to 
 capture, respects property locally situated within the juris- 
 diction of a neutral State ; but this exemption is referred to 
 the right of the neutral State, not to any privilege which the 
 situation gives to the hostile owner. Does reason, or the 
 approved practice of nations, suggest any other exception ? 
 
 With the Komans, who considered it lawful to enslave, or 
 even to kill an enemy found within the territory of the State 
 on the breaking out of war, it would very naturally follow that 
 his property found in the same situation would become the 
 spoil of the first taker. Grotius, whose great work on the 
 laws of war and peace appeared in 1625, adopts as the basis 
 of his opinion upon this question the rules of the Roman 
 law, but qualifies them by the more humane sentiments which 
 began to prevail in the intercourse of mankind at the time he 
 wrote. In respect to debts, due to private persons, he con- 
 siders the right to demand them as suspended only during 
 the war, and reviving with the peace. Bynkershoek, who 
 wrote about the year 1737, adopts the same rules, and follows 
 them to all their consequences. He holds that, as no decla- 
 ration of war to the enemy is necessary, no notice is neces- 
 sary to legalize the capture of his property, unless he has, by 
 express compact, reserved the right to withdraw it on the 
 breaking out of hostilities. This rule he extends to things in 
 action, as debts and credits, as well as to things in posses- 
 sion. He adduces, in confirmation of this doctrine, a variety 
 of examples from the conduct of different States, embracing a 
 period of something more than a century, beginning in the 
 year 1556 and ending in 1657. But he acknowledges that 
 the right had been questioned, and especially by the States- 
 General of Holland ; and he adduces no precedent of its 
 exercise later than the year 1667, seventy years before his
 
 AND ITS IMMEDIATE EFFECTS. 
 
 publication. Against the ancient examples cited by him, 
 there is the negative usage of the subsequent period of nearly 
 a century and a half previously to the wars of the French 
 revolution. During all this period, the only exception to bo 
 found is the case of the Silesian loan, in 1753. In the argu- 
 ment of the English civilians against the reprisals made by 
 the King of Prussia in that case, on account of the capture 
 of Prussian vessels by the cruisers of Great Britain, it is 
 stated that " it would not be easy to find an instance where 
 a prince had thought fit to make reprisals upon a debt due 
 from himself to private men. There is a confidence that this 
 will not be done. A private man lends money to a prince 
 upon an engagement of honour ; because a prince cannot be 
 compelled, like other men, by a court of justice. So scrupu- 
 lously did England and France adhere to this public faith, 
 that even during the war " (alluding to the war terminated 
 by the peace of Aix-la-Chapelle), " they suffered no inquiry 
 to be made whether any part of the public debt was due to 
 the subjects of the enemy, though it is certain many English 
 had money in the French funds, and many French had money 
 in ours (d). 
 
 Vattel, who wrote about twenty years after Bynkershoek, 
 after laying down the general principle, that the property of 
 the enemy is liable to seizure and confiscation, qualifies it by 
 the exception of real property (les immeulles) held by the 
 enemy's subjects within the belligerent State, which having 
 been acquired by the consent of the sovereign, is to be con- 
 sidered as on the same footing with the property of his own 
 subjects, and not liable to confiscation jure belli. But he 
 adds that the rents and profits rnay be sequestrated, in order 
 to prevent their being remitted to the enemy. As to debts, 
 and other things in action, he holds that war gives the same 
 right to them as to the other property belonging to the 
 enemy. He then quotes the example referred to by Grotius, 
 of the hundred talents due by the Thebaus to the Thessa- 
 
 (d) Grotius, de Jur. Bel. ac J'ac. lib. iii. cap. 20, 16. Bynkershoek, 
 Qusest. Jur. Pub. lib. i. cap. 2, 7. Letters of Camillas, by A. Hamilton, 
 No. 20. 
 
 Vattel calls the report of the English civilians " un excellent muiveau do 
 droit des gens (liv. ii. cb. 7, 34, Note a) ; and Montesquieu terms it " une 
 reponse sans relique. " CEuvres, torn. vi. p. 415.
 
 358 COMMENCEMENT OF WA&, 
 
 Hans, of which Alexander had become master by right of con- 
 quest, but which he remitted to the Thessalians as an act of 
 favour; and proceeds to state, that the " sovereign has natu- 
 rally the same right over what his subjects may be indebted 
 to the enemy; therefore he may confiscate debts of this 
 nature, if the term of payment happen in time of war, or at 
 least he may prohibit his subjects from paying while the war 
 lasts. But at present, the advantage and safety of commerce 
 have induced all the sovereigns of Europe to relax from this 
 rigour. And as this custom has been generally received, he 
 who should act contrary to it would injure the public faith ; 
 since foreigners have confided in his subjects only in the firm 
 persuasion that the general usage would be observed. The 
 State does not even touch the sums which it owes to the 
 enemy ; everywhere, in case of war, the funds confided to the 
 public, are exempt from seizure and confiscation." In another 
 passage, Vattel gives the reason of this exemption. "In 
 reprisals, the property of subjects is seized, as well as that 
 belonging to the sovereign or State. Every thing which 
 belongs to the nation is liable to reprisals as soon as it can be 
 seized, provided it be not a deposit confided to the public 
 faith. This deposit being found in our hands only on account 
 of that confidence which the proprietor has reposed in our 
 good faith, ought to be respected even in case of open war. 
 Such is the usage in France, in England, and elsewhere, in 
 respect to money placed by foreigners in the public funds." 
 Again he says : " The sovereign declaring war can neither 
 detain those subjects of the enemy who were within his do- 
 minions at the time of the declaration, nor their effects. 
 They came into this country on the public faith ; by per- 
 mitting them to enter his territories, and continue there, he 
 has tacitly promised them liberty and perfect security for 
 their return. He ought, then, to allow them a reasonable 
 time to retire with their effects, and if they remain beyond 
 the time fixed, he may treat them as enemies ; but only as 
 enemies disarmed " (e). 
 300. jj. a pp ears then, to be the modern rule of international 
 
 The modern 
 
 rule. usage, that property of the enemy found within the territory 
 
 () Vattel, Droit des Gens, liv. ii. eh. 18, 344 ; liv. iii. ch. 4, 63 ; oh. 5. 
 7377.
 
 AND ITS IMMEDIATE EFFECTS. 35,9 
 
 of the belligerent State, or debts due to his subjects by the 
 government or individuals, at the commencement of hostili- 
 ties, are not liable to be seized and confiscated as prize of 
 war. This rule is frequently enforced by treaty stipulations, 
 but unless it be thus enforced, it cannot be considered as an 
 inflexible, though an established rule. " The rule," as it has 
 been beautifully observed, " 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 although it cannot be disregarded by him 
 without obloquy, yet it may be disregarded. It is not an 
 immutable rule of law, but depends on political considera- 
 tions, which may continually vary " (./). 
 
 Among these considerations is the conduct observed by the 301. 
 enemy. If he confiscates property found within his territory, re cip r o city 
 or debts due to our subjects on the breaking out of war, it 
 would certainly be just, and it may, under certain circum- 
 stances, be politic, to retort upon his subjects by a similar 
 proceeding. This principle of reciprocity operates in many 
 cases of international law. It is stated by Sir W. Scott to 
 be the constant practice of Great Britain, on the breaking out 
 of war, to condemn property seized before the war, if the 
 enemy condemns, and to restore if the enemy restores. "It 
 is," says he, " a principle sanctioned by that great foundation 
 of the law of England, Magna Charta itself, which prescribes, 
 that, at the commencement of a war, the enemy's merchants 
 shall be kept and treated as our own merchants are kept and 
 treated in their country " (r/). And it is also stated in the 
 report of the English civilians, in 1753, before referred to, in 
 order to enforce their argument that the King of Prussia could 
 not justly extend his reprisals to the Silesian loan, that 
 " French ships and effects, wrongfully taken, after the Spanish 
 war, and before the French war, have, during the heat of the 
 war with France, and since, been restored by sentence of your 
 Majesty's courts to the French owners. No such ships or 
 effects ever were attempted to be confiscated as enemy's pro- 
 perty, here, during the war ; because, had it not been for the 
 
 (/) Sir. Chief Justice Marshall, in Brown v. United Slates, 8 Crancli, 110. 
 ((/) The Santa Cruz, 1 C. Kob. 64.
 
 360 
 
 COMMENCEMENT OF WAR, 
 
 Droits of 
 Admiralty. 
 
 Seizure of 
 enemy's 
 property 
 found 
 within the 
 territorial 
 limits of 
 the belli- 
 gerent 
 State, on 
 the declara- 
 tion of war. 
 
 304. 
 
 Brown v, 
 
 United 
 
 States. 
 
 wrong first done, these effects would not have been in your 
 Majesty's dominions." 
 
 The ancient law of England seems thus to have surpassed 
 in liberality its modern practice. In the recent maritime 
 wars commenced by that country, it has been the constant 
 usage to seize and condemn as droits of admiralty the pro- 
 perty of the enemy found in its ports at the breaking out of 
 hostilities, and this practice does not appear to have been 
 influenced by the corresponding conduct of the enemy in that 
 respect. As has been observed by an English writer, com- 
 menting on the judgment of Sir W. Scott in the case of the 
 Dutch ships, " there seems something of subtlety in the dis- 
 tinction between the virtual and the actual declaration of 
 hostilities, and in the device of giving to the actual declaration 
 a retrospective efficacy, in order to cover the defect of the 
 virtual declaration previously implied " (h). 
 
 During the war between the United States and Great 
 Britain, which commenced in 1812, it was determined by the 
 Supreme Court, that the enemy's property, found within the 
 territory of the United States on the declaration of war, could 
 not be seized and condemned as prize of war, without some 
 legislative act expressly authorising its confiscation. The 
 court held that the law of Congress declaring war was not 
 such an act. That declaration did not, by its own operation, 
 so vest the property of the enemy in the government, as to 
 support judicial proceedings for its seizure and confiscation. 
 It vested only a right to confiscate, the assertion of which 
 depended on the will of the sovereign power. 
 
 The judgment of the court stated, that the universal prac- 
 tice 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 that it simply 
 confers the right of confiscation. 
 
 Between debts contracted under the faith of laws, and pro- 
 perty 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 
 
 (h) Chitty's Law of Nations, ch. 3, p.
 
 AND ITS IMMEDIATE EFFECTS. 301 
 
 war may Lave been seized, it was not believed tbat modern 
 usage would sanction the seizure of the goods of an enemy on 
 land, which were acquired in peace in the course of trade. 
 Such a proceeding was rare, and would be deemed a harsh 
 exercise of the rights of war. But although the practice in 
 this respect might not be uniform, that circumstance did not 
 essentially affect the question. The inquiry was, whether 
 such property vests in the sovereign by the mere declaration 
 of war, or remains subject to a right of confiscation, the exer- 
 cise of which depends upon 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 itself, must apply to all 
 others over which war gives an equal right. The right of the 
 sovereign to confiscate debts being precisely the same with 
 the right to confiscate other property found in the country, 
 the operation of a declaration of war on debts, and on other 
 property found within the country must be the same. 
 
 Even Bynkershoek, who maintains the broad principle, that 
 in war every thing 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 unlimited 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 ; " be- 
 cause," he says, " the occupation which is had by war consists 
 more in fact than in law." He adds to his observations 011 
 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 belonging to the enemy may be concealed 
 and escape confiscation " (i). 
 
 (i) "Quod dixi de actionibus recte publicandis, ita deinum obtinet, si quod 
 subditi nostri hostibus nostris debent, princeps a subditis suis revera exegerit. 
 Si exegerit, recte solutum est, si non exegerit, pace factd, reviviscit jus pris- 
 tinum creditoris, quia occupatio, quae bello lit, magis in facto, quaia in 
 potestate juris consistit. Nomina igitur, non exacta tempore belli quodam- 
 modo intermori videntur, sed per pacem, genere quodam postliininii, ad 
 priorem dominum reverti. Secundum liaec inter gentes fere convenit, ut 
 nominibus bello publicatis, pace deinde facta, exacta cenaeantur periisse, et 
 manoant extiucta, non autem exacta reviviscant, et restituantur veris credi- 
 
 toribus Noli autem existimare, de actionibus duntaxat veruni 
 
 esse, eas ipso jure non publicari, nam nee alia qiucque publicantur, qua 1 a pud 
 hostes, sunt et ibi forte celantur. Unde et ea, qua; apud hnstos ante bellum 
 exortum habebamu.s, indictoque bella suppressa eraat, atque ita 71011 publicata,
 
 3G2 COMMENCEMENT OF WAR, 
 
 Vattel says, that " the sovereign can neither detain the 
 persons nor the property of those subjects of the enemy, who 
 are within his dominions at the time of the declaration." 
 
 It was true that this rule was, in terms, applied by Vattel 
 to the property of those only who are personally within the 
 territory at the commencement of hostilities ; but it applied 
 equally to things in action and to things in possession ; and 
 if war did, of itself, without any further exercise of the sove- 
 reign will, vest the property of the enemy in the sovereign, 
 the presence of the owner could not exempt it from this 
 operation of war. Nor could a reason be perceived for main- 
 taining 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. 
 
 The modern rule, then, would seem to be, that tangible 
 property belonging to an enemy, and found in the country at 
 the commencement of war, ought not to be immediately con- 
 fiscated ; and in almost every commercial treaty an article is 
 inserted, stipulating for the right to withdraw such property. 
 
 This rule appeared to be totally incompatible with the idea, 
 that war does, of itself, vest the property in the belligerent 
 government. It might 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 the rules laid down by these writers went to the 
 exercise of this right. 
 
 The Constitution of the United States was framed at a 
 time when this rule, introduced by commerce in favour of 
 moderation and humanity, was received throughout the 
 civilized world. In expounding that Constitution, a construc- 
 tion ought not lightly to be admitted, which would give to a 
 declaration of war an effect in this country it did not possess 
 elsewhere, and which would fetter the exercise of that entire 
 discretion respecting enemy's property, which might enable 
 the government to apply to the enemy the rule which he 
 applied to us. 
 
 This general reasoning would be found to be much 
 
 si a nostris denuo recuperentur, non fieri recuperantium, sed pristinis dominis 
 restitui, recte responsum est. Consil. Belg. t. iii. Consil. 67." Bynkershoek, 
 Qusest. Jur. Pub. lib. i. cap. vii.
 
 AND ITS IMMEDIATE EFFECTS. 363 
 
 strengthened by the words of the Constitution itself That 
 the declaration of war had only the effect of placing the two 
 nations in a state of hostility, of producing a state of war, of 
 giving those rights which war confers ; but not of operating, 
 by its own force, any of those results such as a transfer of 
 property which are usually produced by ulterior measures 
 of government, was fairly deducible from the enumeration 
 of powers which accompanied that of declaring war : 
 " Congress shall have power to declare war, grant letters of 
 marque and reprisal, and make rules concerning captures on 
 land and water." 
 
 It would be restraining this clause within narrower limits 
 than the words themselves import, to say that the power to 
 make rules concerning captures on land and water was to be 
 confined to captures which are extraterritorial. If it extended 
 to rules respecting enemy's property found within the terri- 
 tory, then the Court perceived an express grant to Congress 
 of the power in question as an independent substantive power, 
 not included in that of declaring war. 
 
 The acts of Congress furnished many instances of an 
 opinion, that the declaration of war does not, of itself, autho- 
 rize proceedings against the persons or property of the enemy, 
 found at the time within the territory. 
 
 War gives an equal right over persons and property ; and 
 if its declaration was not considered as prescribing a law 
 respecting the person of an enemy found in our country, 
 neither did it prescribe a law for his property. The act con- 
 cerning alien enemies, which conferred on the President very 
 great discretionary powers respecting their persons, afforded 
 a strong implication that he did not possess those powers by 
 virtue of the declaration of war. 
 
 The act " for the safe keeping and accommodation of 
 prisoners of war," was of the same character. 
 
 The act prohibiting trade with the enemy contained this 
 clause : " That the President of the United States be, and 
 he is hereby authorized to give, at any time within six 
 months after the passage of this act, passports for the safe 
 transportation of any ship or other property belonging to 
 British subjects, and which is now within the limits, of the 
 United States."
 
 3G4 COMMENCEMENT OF WAR, 
 
 The phraseology of this law showed that the property of a 
 British subject was not considered by the legislature as being 
 vested in the United States by the declaration of war ; and 
 the authority which the act conferred on the President was 
 manifestly considered as one which he did not previously 
 possess. 
 
 The proposition that a declaration of war does not, in itself, 
 enact a confiscation of the property of the enemy within the 
 territory of the belligerent, was believed to be entirely free 
 from doubt. Was there in the Act of Congress, by which 
 war was declared against Great Britain, any expression which 
 would indicate such an intention ? 
 
 That act, after placing the two nations in a state of war, 
 authorizes the President to use the whole land and naval 
 force of the United States, to carry the war into effect ; and 
 " to issue to private armed vessels of the United States com- 
 missions, or letters of marque and general reprisal, against 
 the vessels, goods, and effects of the government of the 
 United Kingdom of Great Britain and Ireland, and the sub- 
 jects thereof." 
 
 That reprisals may be made on enemy's property found 
 within the United States at the declaration of war, if such be 
 the will of the nation, had been admitted ; but it was not 
 admitted that, in the declaration of war, the nation had 
 expressed its will to that effect. 
 
 It could not be necessary to employ argument in showing, 
 that when the Attorney for the United States institutes pro- 
 ceedings at law for the confiscation of enemy's property found 
 on land, or floating in one of our creeks, in the care and 
 custody of one of our citizens, he is not acting under 
 the authority of letters of marque and reprisal, still less 
 under the authority of such letters issued to a private armed 
 vessel. 
 
 The act " concerning letters of marque, prizes, and 
 prize goods," certainly contained nothing to authorize that 
 seizure. 
 
 There being no other Act of Congress which bore upon the 
 subject, it was considered as proved that the legislature had 
 not confiscated enemy's property, which was within the United 
 States at the declaration of war, and that the sentence of
 
 AND ITS IMMEDIATE EFFECTS. 365 
 
 condemnation, pronounced in the Court below, could not be 
 sustained. 
 
 One view, however, had been taken of this subject, which 
 deserved to be further considered. It was urged that, in exe- 
 cuting the laws of war, the executive may seize and the courts 
 condemn all property which, according to the modern law of 
 nations, is subject to confiscation ; although 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 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 was not allowed. This usage was a guide which the 
 sovereign follows or abandons at his will. The rule, like other 
 precepts of morality, of humanity, and even of wisdom, was 
 addressed to the judgment of the sovereign ; and although it 
 could not be disregarded by him without obloquy, yet it 
 might be disregarded. 
 
 The rule was, in its nature, flexible. It was subject to 
 infinite modifications. It was not an immutable rule of law, 
 but depended on political considerations, which might con- 
 tinually vary. Commercial nations, in the situation of the 
 United States, had always a considerable quantity of pro- 
 perty in the possession of their neighbours. When war 
 breaks out, the question, what shall be done with enemy's 
 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 was proper for the considera- 
 tion of a department which can modify it at will ; not for the 
 consideration of a department which can pursue only the law 
 as it is written. It was proper for the consideration of the 
 legislature, not of the executive or judiciary. It appeared to 
 the Court that the power of confiscating enemy's property was 
 in the legislature, and that the legislature had not yet de- 
 clared its will to confiscate property which was within our 
 territory at the declaration of war (k). 
 
 (k) Nr. Chief Justice Marshall, in Brown v. United States, 8 C'ranch 
 123129.
 
 366 
 
 COMMENCEMENT OF WAR, 
 
 304a. 
 Practice 
 of the 
 Crimean 
 War. 
 
 305. 
 
 Debts due 
 to the 
 enemy. 
 
 306. 
 
 Practice 
 of the 
 United 
 States. 
 
 On the outbreak of the Crimean war, Russia permitted Turkish 
 vessels to leave her ports on the ground that a similar indulgence had 
 been granted to Russian vessels by Turkey. When England and France 
 took part in the war, they allowed Russian vessels in their ports six 
 weeks to complete their cargoes and depart. This exemption from the 
 effects of the war was afterwards extended to all Russian ships that put 
 to sea before the 15th of May, 1854. Russia also allowed English and 
 French vessels a period of six weeks for departure, and for vessels in the 
 White Sea the period of six weeks commenced from the date when the 
 navigation was opened (/). 
 
 In respect to debts due to an enemy, previously to the com- 
 mencement of hostilities, the law of Great Britain pursues a 
 policy of a more liberal, or at least of a wiser character, than 
 in respect to droits of admiralty. A maritime power, which 
 has an overwhelming naval superiority, may have an interest, 
 or may suppose it has an interest, in asserting the right of 
 confiscating enemy's property, seized before an actual declara- 
 tion of war ; but a nation which, by the extent of its capital, 
 must generally be the creditor of every other commercial 
 country, can certainly have no interest in confiscating debts 
 due to an enemy, since that enemy might, in almost every 
 instance, retaliate with much more injurious effect. Hence, 
 though the prerogative of confiscating such debts, and com- 
 pelling their payment to the crown, still theoretically exists, 
 it is seldom or never practically exerted. The right of the 
 original creditor to sue for the recovery of the debt is not ex- 
 tinguished ; it is only suspended during the war, and revives, 
 in full force, on the restoration of peace (m). 
 
 Such, too, is the law and practice of the United States. 
 The debts due by American citizens to British subjects before 
 the war of the Eevolution, and not actually confiscated, were 
 judicially considered as revived, together with the right to 
 sue for their recovery on the restoration of peace between the 
 two countries. The impediments which had existed to the 
 collection of British debts, under the local laws of the dif- 
 ferent States of the Confederation, were stipulated to be 
 removed by the treaty of peace, in 1783 ; but this stipulation 
 proving ineffectual for the complete indemnification of the 
 
 (I) [Calvo, vol. ii. 725, p. 41]. 
 
 (m) Furtado v. Rogers, 3 Bos. & Pul. 191 ; Ex parte Bmismaker, 12 Ves. 
 71 ; The Nuestra Signora de los dolores, Edw. Ad. 60.
 
 AND ITS IMMEDIATE EFFECTS. 
 
 307 
 
 creditors, the controversy between the two countries on this 
 subject was finally adjusted, by the payment of a sum en bloc 
 by the government of the United States, for the use of the 
 British creditors. The commercial treaty of 1794 also con- 
 tained an express declaration, that it was unjust and impolitic 
 that private contracts should be impaired by national dif- 
 ferences ; with a mutual stipulation, that "neither the debts 
 due from individuals of the one nation to individuals of the 
 other, nor shares, nor moneys which they may have in the 
 public funds, or in the public or private banks, shall ever, in 
 any event of war, or national differences, be sequestered or 
 confiscated " (ri). 
 
 On the commencement of hostilities between France and 307. 
 Great Britain, in 1793, the former power sequestrated the andFrance. 
 debts and other property belonging to the subjects of her 
 enemy, which decree was retaliated by a countervailing mea- 
 sure on the part of the British government. By the addi- 
 tional articles to the treaty of peace between the two powers, 
 concluded at Paris, in April, 1814, the sequestrations were 
 removed on both sides, and commissaries were appointed to 
 liquidate the claims of British subjects for the value of their 
 property unduly confiscated by the French authorities, and 
 also for the total or partial loss of the debts due to them, or 
 other property unduly retained under sequestration, subse- 
 quently to 1792. The engagement thus extorted from 
 France may be considered as a severe application of the 
 rights of conquest to a fallen enemy, rather than a measure 
 of even-handed justice ; since it does not appear that French 
 property, seized in the ports of Great Britain and at sea, in 
 anticipation of hostilities, and subsequently condemned as 
 droits of admiralty, was restored to the original owners 
 under this treaty, on the return of peace between the two 
 countries (o). 
 
 So, also, on the rupture between Great Britain and Den- sog, 
 mark, in 1807, the Danish ships and other property, which 2, f d E JfJ Jld 
 had been seized in the British ports and on the high seas, mark, 
 before the actual declaration of hostilities, were condemned as 
 
 (n) Dallas's Rep. vol. iii. pp. 4, 5, 199285. 
 (o) Martens, Nouveau Recueil, torn. ii. p. 16.
 
 368 COMMENCEMENT OF WAR, 
 
 droits of admiralty by the retrospective operation of the de- 
 claration. The Danish government issued an ordinance, 
 retaliating this seizure by sequestrating all debts due from 
 Danish to British subjects, and causing them to be paid into 
 the Danish royal treasury. The English Court of King's 
 Bench determined that this ordinance was not a legal defence 
 to a suit in England for such a debt, not being conformable 
 to the usage of nations ; the text writers having condemned 
 the practice, and no instance having occurred of the exercise 
 of the right, except the ordinance in question, for upwards of 
 a century. The soundness of this judgment may well be 
 questioned. It has been justly observed, that between debts 
 contracted under the faith of laws, and property acquired on 
 the faith of the same laws, reason draws no distinction ; and 
 the right of the sovereign to confiscate debts is precisely the 
 same with the right to confiscate other property found within 
 the country on the breaking out of the war. Both require 
 some special act expressing the sovereign will, and both de- 
 pend, not on any inflexible rule of international law, but on 
 political considerations by which the judgment of the sovereign 
 may be guided (p). 
 
 308a. Some writers have drawn a distinction between debts due from a 
 Public and subject of one belligerent to a subject of the other, and debts due from a 
 debts 6 belligerent State to the subjects of the other. It is said that there exists 
 a right to confiscate the former, while the latter are to be exempt. The 
 Confederate States acted upon this distinction, and confiscated all pro- 
 perty and all rights, credits, and interests held within the confederacy, 
 by or for any alien enemy, except public stocks and securities. Lord 
 Russell strongly protested against this as being an act as unusual as it 
 was unjust (q). Many of the individual inhabitants of the South carried 
 this principle further, and repudiated all their debts due to citizens of 
 the Northern States (r). But this is the only instance in recent times of 
 such measures having been adopted, and it is an example that seems 
 unlikely to be imitated. The confiscation of private debts of any sort, 
 besides exposing the State doing so to retaliation, only cripples the 
 enemy in a very indirect way. It has no effect at all on the military or 
 naval operations of the war, and cannot, therefore, be justified on any 
 principle. 
 
 (p) Wolff v. Oxholm, 6 M. & S. 92 ; Brown v. United States, 8 Cranch, 
 110. 
 
 (<?) [Parl. Papers, 1862. Correspondence relating to Civil War, p. 108]. 
 (r) [Draper, Hist, of American Civil War, vol. i. p. 537J.
 
 AND ITS IMMEDIATE EFFECTS. 3G9 
 
 One of the immediate consequences of the commencement ?09. 
 of hostilities is, the interdiction of all commercial intercourse with'thL 
 between the subjects of the States at war, without the license JJJJ' " 
 of their respective governments. In Sir W. Scott's judgment, the part of 
 in the case of The Hoop, this is stated to be a principle of ^Sm^e- 
 universal law, and not peculiar to the maritime jurisprudence rent State, 
 of England. It is laid down by Bynkershoek as a universal 
 principle of law. " There can be no doubt," says that writer, 
 ' ' that, from the nature of war itself, all commercial inter- 
 course ceases between enemies. Although there be no special 
 interdiction of such intercourse, as is often the case, com- 
 merce is forbidden by the mere operation of the law of war. 
 Declarations of war themselves sufficiently manifest it, for 
 they enjoin on every subject to attack the subjects of the 
 other prince, seize on their goods, and do them all the harm 
 in their power. The utility, however, of merchants, and the 
 mutual wants of nations, have almost got the better of the law 
 of war* as to commerce. Hence it is alternately permitted 
 and forbidden in time of war, as princes think it most for the 
 interests of their subjects. A commercial nation is anxious to 
 trade, and accommodates the laws of war to the greater or 
 lesser want that it may be in of the goods of others. Thus, 
 sometimes a mutual commerce is permitted generally ; some- 
 times as to certain merchandises only, while others are pro- 
 hibited ; and sometimes it is prohibited altogether. But in 
 whatever manner it may be permitted, whether generally or 
 specially, it is always, in my opinion, so far a suspension of 
 the laws of war ; and in this manner there is partly war and 
 partly peace between the subjects of both countries" (s). 
 
 It appears from these passages to have been the law of 
 
 (s) "Quamvis autem nulla specialis sit commerciorum prohibitio, ipso 
 tamen jure belli comniercia esse vetita, ip.sse indictioncs bellorum satis decla- 
 rant, quisque enini subditus jubetur alterius Principis subditos, eorumque 
 bona aggredi, occupare, et quomodocumque iis nocere. Utilitas ver6 mercau- 
 tium, et quod alter populus alterius rebus indigeat, fere jus belli, qu6d ad 
 commercia, subegit. Hinc in quoque bello aliter atque aliter commercia per- 
 mittuntur vetanturque, prout e re sua subditorumque suorum esse consent 
 Principes. Mercator populus studet commerciis frequentandis, et prout quis- 
 que alterius mercibus niagis minusve carere potest, e6 jus belli accomodat. 
 Sic aliquando generaliter permittuntur mutua commercia, aliquando qu6d ad 
 certas merces, reliquis prohibitis, aliquando simpliciteret gent-raliter vetantur. 
 Utcunque autem permittas, sive generaliter, sive specialiter, semper, si me 
 audias, quoad haec status belli suspenditur. Pro parte sic bellum, pro parte 
 pax erit inter subditos utriusque Principis." Bynkershoek, Qusest. Jur. Pub. 
 lib. i. cap. 3.
 
 370 COMMENCEMENT OF WAR, 
 
 Holland. Valin states it to have been the law of France, 
 whether the trade was attempted to be carried on in national 
 or neutral vessels ; and it appears from a case cited (in The 
 Hoop) to have been the law of Spain ; and it may without 
 rashness be affirmed to be a general principle of law in most 
 of the countries in Europe (*). 
 
 310. Sir W. Scott proceeds to state two grounds upon which 
 The Hoop, ^-g gor |. Q commun i ca tion is forbidden. The first is, that 
 " by the law and constitution of Great Britain 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 individuals to determine on the expediency of such 
 occasions, on their own notions of commerce merely, and pos- 
 sibly on grounds of private advantage, not very reconcilable 
 with the general interests of the State. It is for the State 
 alone, on more enlarged views of policy, and of all the circum- 
 stances that may be connected with such an intercourse, to 
 determine when it shall be permitted, and under what regula- 
 tions. 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 consequences that might follow, if every person in 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 an any other species of intercourse he might think 
 fit ? The inconvenience to the public might be extreme ; and 
 where is the inconvenience on the other side, that the mer- 
 chant should be compelled, in such a situation of the two 
 countries, to carry on his trade between them (if necessary) 
 under the eye and control 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 incon- 
 
 (t) Valin, Comm. sur 1'Ordonn. de la Marine, liv. iii. tit. 6, art. 3.
 
 AND ITS IMMEDIATE EFFECTS. 371 
 
 sistent with the relation existing between the two belligerent 
 countries ; and that is, the total inability to sustain any con- 
 tract, 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 dis- 
 ability to sue, or to sustain, in the language of the civilians, a 
 persona standi in judicio. A. state in which contracts cannot 
 be enforced, cannot be a state of legal commerce. If the 
 parties who are to contract have no right to compel the per- 
 formance of the contract, nor even to appear in a court of jus- 
 tice 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 protec- 
 tion, and against its authority. Bynkershoek expresses him- 
 self with force upon this argument, in his first book, Chapter 
 VII., where he lays 'down that the legality of commerce and 
 the mutual use of courts of justice are inseparable. He says 
 that, in this respect, cases of commerce are undistinguishable 
 from any other kinds of case : ' But if the enemy be once 
 permitted to bring actions, it is difficult to distinguish from 
 what causes they may arise ; nor have I been able to observe 
 that this distinction has ever been carried into practice.' " 
 
 Sir W. Scott then notices the constant current of decisions 
 in the British Courts of Prize, where the rule had been rigidly 
 enforced in cases where acts of parliament had, on different 
 occasions, been made to relax the Navigation Law, and other 
 revenue acts ; where the government had authorized, under 
 the sanction of an act of parliament, a homeward trade from 
 the enemy's possessions, but had not specifically protected an 
 outward trade to the same, though intimately connected with 
 that homeward trade, and almost necessary to its existence ; 
 where strong claims, not merely of convenience, but of neces- 
 sity, excused it on the part of the individual ; where cargoes 
 had been laden before the war, but the parties had not used 
 all possible diligence to countermand the voyage, after the 
 first notice of hostilities ; and where it had been enforced, not 
 only against British subjects, but also against those of its 
 allies in the war, upon the supposition that the rule was 
 founded upon a universal principle, which States allied in war 
 
 B B 2
 
 372 COMMENCEMENT OF WAR, 
 
 had a right to notice and apply mutually to each other's 
 subjects. 
 
 Such, according to this eminent civilian, are the general 
 principles of the rule under which the public law of Europe, 
 and the municipal law of its different States, have interdicted 
 all commerce with an enemy. It is thus sanctioned by the 
 double authority of public and of private jurisprudence ; and 
 is founded both upon the sound and salutary principle for- 
 bidding all intercourse with an enemy, unless by permission 
 of the sovereign or State, and upon the doctrine that he who 
 is hostis who has no persona standi in judicio, no means of 
 enforcing contracts, cannot make contracts, unless by such 
 permission (u). 
 
 311. The same principles were applied by the American courts 
 of e< the nS ^ J us ^ice to the intercourse of their citizens with the enemy, 
 American on the breaking out of the late war between the United 
 tolradinj States and Great Britain. A case occurred in which a 
 
 citizen had purchased a quantity of goods within the British 
 enemy. territory, a long time previous to the declaration of hostili- 
 ap ties, and had deposited them on an island near the frontier ; 
 upon the breaking out of hostilities, his agents had hired a 
 vessel to proceed to the place of deposit, and bring away the 
 goods ; on her return she was captured, and with the cargo, 
 condemned as prize of war. It was contended for the 
 claimant that this was not a trading, within the meaning of 
 the cases cited to support the condemnation ; that, on the 
 breaking out of war, every citizen had a right, and it was the 
 interest of the community to permit its members, to with- 
 draw property purchased before the war, and lying in the 
 enemy's country. But the Supreme Court determined, that 
 whatever relaxation of the strict rights of war the more 
 mitigated and mild practice of modern times might have 
 established, there had been none on this subject. The 
 universal sense of nations had acknowledged the demoralizing 
 effects which would result from the admission of individual 
 intercourse between the States at war. The whole nation is 
 embarked in one common bottom, and must be reconciled to 
 one common fate. Every individual of the one nation must 
 acknowledge every individual of the other nation as his own 
 (u) TJie Hoop, 1 C. Rob. 196.
 
 AND ITS IMMEDIATE EFFECTS. 373 
 
 enemy, because he is the enemy of his country. This being 
 the duty of the citizen, what is the consequence of a breach of 
 that duty ? The law of prize is a part of the law of nations. 
 By it a hostile character is attached to trade, independent of 
 the character of the trader who pursues or directs it. Con- 
 demnation to the captor is equally the fate of the enemy's 
 property, and of that found engaged in an anti-neutral trade. 
 But a citizen or ally may be engaged in a hostile trade, and 
 thereby involve his property in the fate of those in whose 
 cause he embarks. This liability of the property of a citizen 
 to condemnation, as prize of war, may likewise be accounted 
 for on other considerations. Every thing that issues from a 
 hostile country is, primd facie, the property of the enemy ; 
 and it is incumbent upon the claimant to suport the negative 
 of the proposition. But if the claimant be a citizen, or an 
 ally, at the same time that he makes out his interest he con- 
 fesses the commission of an offence, which, under a well- 
 known rule of the municipal law, deprives him of his right to 
 prosecute his claim. Nor did this doctrine rest upon abstract 
 reasoning only ; it was supported by the practice of the most 
 enlightened, perhaps it might be said, of all commercial 
 nations ; and it afforded the Court full confidence in their 
 judgment in this case, that they found, upon recurring to the 
 records of the Court of Appeals in Prize Causes, established 
 during the war of the Revolution, that, in various cases, it 
 was reasoned upon as the established law of that Court. 
 Certain it was, that it was the law of England before the 
 American Revolution, and therefore formed a part of the 
 admiralty and maritime jurisdiction conferred upon the United 
 States Courts by their Federal Constitution. Whether the 
 trading, in that case, was such as, in the eye of the prize law, 
 subjects the property to capture and confiscation, depended on 
 the legal force of the term. If by trading, in the law of prize, 
 were meant that signification of the term which consists in 
 negotiation or contract, the case would certainly not come 
 under the penalty of the rule. But the object, policy, and 
 spirit of the rule are intended to cut off all communication, 
 or actual locomotive intercourse between individuals of the 
 States at war. Negotiation or contract had, therefore, no 
 necessary connection with the offence. Intercourse incon-
 
 374 COMMENCEMENT OF WAR, 
 
 sistent with actual hostility, is the offence against which the 
 rule is directed ; and by substituting this term for that of 
 trading with the enemy, an answer was given to the argu- 
 ment, that this was not a trading within the meaning of the 
 cases cited. Whether, on the breaking out of war, a citizen 
 has a right to remove to his own country, with his property, 
 or not, the claimant certainly had not a right to leave his 
 own country for the purpose of bringing home his property 
 from an enemy's country. As to the claim for the vessel, it 
 was held to be founded upon no pretext whatever; for the 
 undertaking was altogether voluntary and inexcusable (x). 
 312. So where hostilities had broken out, and the vessel in 
 
 ^md, AleX ~ <l ues tion, with a full knowledge of the war, and unpressed by 
 any peculiar danger, changed her course and sought an 
 enemy's port, where she traded and took in a cargo, it was 
 determined to be a cause of confiscation. If such an act 
 could be justified, it would be in vain to prohibit trade with 
 an enemy. The subsequent traffic in the enemy's country, 
 by which her return cargo was obtained, connected itself with 
 a voluntary sailing for a hostile port; nor did the circum- 
 stance that she was carried by force into one part of the 
 enemy's dominions, when her actual destination was another, 
 break the chain. The conduct of this ship was much less to 
 be defended than that of The Rapid (y). 
 313. So, also, where goods were purchased some time before the 
 
 Lawrence. war > ^y the agent of an American citizen in Great Britain, 
 but not shipped until nearly a year after the declaration of 
 hostilities they were pronounced liable to confiscation. Sup- 
 posing a citizen had a right, on the breaking out of hostili- 
 ties, to withdraw from the enemy's country his property, 
 purchased before the war, (on which the Court gave no 
 opinion,) such right must be exercised with due diligence, 
 and within a reasonable time after a knowledge of hostilities. 
 To admit a citizen to withdraw property from a hostile 
 country a long time after the commencement of war, upon 
 the pretext of its having been purchased before the war, 
 would lead to the most injurious consequences, and hold 
 out temptations to. every species of fraudulent and illegal 
 
 (a;) The Rapid, 8 Cranch, 155. 
 (y) The Alexander, Ibid., 169.
 
 AND ITS IMMEDIATE EFFECTS. 375 
 
 traffic with the enemy. To such an unlimited extent the 
 right could not exist (z) . 
 
 In December, 1863, The Gray Jacket sailed from Mobile Bay, a Con- 313a. 
 federate port at that time blockaded by the Federal fleets, and the next Quitting 
 day was captured on the high seas by a Federal cruiser. The owner of 
 The Gray Jacket asserted that he was endeavouring to quit the rebel 
 States with the ship and as much property as he could take in her, in break of 
 order to repair to one of the loyal States. The court below, however, war - 
 condemned the ship as prize. The Supreme Court, on appeal, said, the 
 liability of the property was, irrespective of the status domicilii, guilt or 
 innocence of the owner. If it came from enemy territory, it bore the 
 impress of enemy property. If it belonged to a loyal citizen of the 
 country of the captors, it was nevertheless as much liable to condemna- 
 tion as if owned by a citizen or subject of the hostile country or by the 
 hostile government itself. The only qualification of these rules is, that 
 where, upon the breaking out of hostilities, or as soon after as possible, 
 the owner escapes with such property as he can take with him, or in 
 good faith thus early removes his property with a view of putting it 
 beyond the dominion -of the hostile power, the property in such cases is 
 exempt from the liability which would otherwise attend it. The Gray 
 Jacket having only sailed in December, 1863, whereas the war broke out 
 in April, 1861, her removal was held to be too late and she was con- 
 demned as prize (a). 
 
 In another case, the vessel, owned by citizens of the United 314. 
 States, sailed from thence before the war, with a cargo or /JL^ 
 freight, on a voyage to Liverpool and the north of Europe, 
 and thence back to the United States. She arrived in Liver- 
 pool, there discharged her cargo, and took in another at Hull, 
 and sailed for St. Petersburg under a British license, granted 
 the 8th June, 1812, authorizing the export of mahogany to 
 Russia, and the importation of a return cargo to England. 
 On her arrival at St. Petersburg she received news of the war, 
 and sailed to London with a Eussian cargo, consigned to 
 British merchants ; wintered in Sweden, and, in the spring 
 of 1813, sailed under convoy of a British man-of-war for 
 England, where she arrived and delivered her cargo, and 
 sailed for the United States in ballast, under a British license, 
 and was captured near Boston lighthouse. The Court stated, 
 in delivering its judgment, that, after the decisions above 
 cited, it was not to be contended that the sailing with a cargo 
 
 (z) The St. Lawrence, 8 Cranch, 434 ; S. C. 9 Cranch, 120. 
 (a) [The Gray Jacket, 5 Wallace, 342, 369.]
 
 376 COMMENCEMENT OF WAR, 
 
 or freight, from Kussia to the enemy's country, after a full 
 knowledge of the war, did not amount to such a trading with 
 the enemy as to subject both vessel and cargo to condemna- 
 tion, as prize of war, had they been captured whilst pro- 
 ceeding on that voyage. The alleged necessity of undertaking 
 that voyage to enable the master, out of the freight, to dis- 
 charge his expenses at St. Petersburg, countenanced, as the 
 master declared, by the opinion of the United States minister 
 there that, by undertaking such a voyage, he would violate 
 no law of his own country ; although those considerations, if 
 founded in truth, presented a case of peculiar hardship, yet 
 they afforded no legal excuse which it was competent for the 
 Court to admit as the basis of its decision. The counsel for 
 the claimant seemed to be aware of the insufficiency of this 
 ground, and had applied their strength to show that the 
 vessel was not taken in delicto, having finished the offensive 
 voyage in which she was engaged in the enemy's country, and 
 having been captured on her return home in ballast. It was 
 not denied that, if she had been taken in the same voyage in 
 which the offence was committed, she would be considered as 
 still in delicto, and subject to confiscation ; but it was con- 
 tended that her voyage terminated at the enemy's port, and 
 that she was on her return, on a new voyage. But the Court 
 said, that even admitting that the outward and homeward 
 voyage could be separated, so as to render them two distinct 
 voyages, still, it could not be denied that the termini of the 
 homeward voyage were St. Petersburg and the United States. 
 The continuity of such a voyage could not be broken by a 
 voluntary deviation of the master, for the purpose of carrying 
 on an intermediate trade. That the going from the neutral 
 to the enemy's country was not undertaken as a new voyage, 
 was admitted by the claimants, who alleged that it was under- 
 taken as subsidiary to the voyage home. It was, in short, a 
 voyage from the neutral country, by the way of the enemy's 
 country ; and, consequently, the vessel, during any part of 
 that voyage, if seized for any conduct subjecting her to con- 
 fiscation as prize of war, was seized in delicto (&). 
 815. We have seen what is the rule of public and municipal law 
 on ^" s su ^.i ec ^ an ^ wn &t are the sanctions by which it is 
 
 (f>) The JosejrjJi, 8 Cranch, 451.
 
 AND ITS IMMEDIATE EFFECTS. 377 
 
 guarded. Various attempts have been made to evade its 
 operation, and to escape its penalties ; but its inflexible rigour 
 has defeated all these attempts. The apparent exceptions to 
 the rule, far from weakening its force, confirm and strengthen 
 it. They all resolve themselves into cases where the trading 
 was with a neutral, or the circumstances were considered as 
 implying a license, or the trading was not consummated until 
 the enemy had ceased to be such. In all other cases, an 
 express license from the government is held to be necessary, 
 to legalize commercial intercourse with the enemy (c). 
 
 These principles are still applicable to war except when belligerents 315 a. 
 have, of their own accord, chosen to modify them by regulations for the Relaxation 
 guidance of their subjects in any particular case. During the Crimean 
 war England, France and Russia, all permitted their respective subjects trade with 
 to trade with the enemy, provided the trade was carried on through the the enemy, 
 medium of a neutral flag (d). This relaxtion of the rules of international 
 law only applied to .that particular war. England at the same time 
 prohibited her subjects from dealing with any securities issued by the 
 Eussian Government during the war. Such an act was made a mis- 
 demeanour (e). At the outbreak of the Franco-German war, France 
 permitted German vessels that had left Germany before the declaration 
 of war, and were destined to carry goods to French ports, to proceed to 
 such ports and discharge the goods, but German vessels which, under 
 the same circumstances, were destined for neutral ports were held to be 
 liable to capture as prize (/ ). 
 
 The law of nations prohibits all intercourse between subjects of the 315 b. 
 two belligerents which is inconsistent with the state of war between ^ xt ^- ? 
 their countries. This includes any act of voluntary submission to the of inter- 
 enemy, or receiving his protection ; any act or contract which tends to course 
 increase his resources, and every kind of trading or commercial dealing between 
 or intercourse, whether by transmissions of money or goods, or orders for en< 
 the delivery of either, between the two countries directly or indirectly, 
 or through the intervention of third persons or partnerships, or by con- 
 tracts in any form looking to, or involving such transmission, or by in- 
 surances upon trade by or with the enemy. Beyond this the prohibition 
 does not extend (#). It does not apply to transactions which are to 
 take place entirely in the territory of one belligerent. Thus where a 
 creditor residing in one of the States at war, has an agent in the other 
 
 (c) The Franklin, 6 C. Rob. 127; The Madonna della Gratia, 4 C. Rob. 
 195; The Ju/row Outharina, 5 C. Rob. 141; The Alby, Ibid., 251. See 
 Wheaton's Reports, vol. ii., App., note i. p. 34. Wheaton on Captures, 220. 
 [Mitchell v. U. $., 21 Wallace, 350.] 
 
 (d) [Kent, by Abdy (2nd ed.), p. 190.] 
 
 (e) [17 & 18 Viet. c. 123.] 
 
 (/) [Archives Diplomatiques, 18712, Pt. I. pp. 246, 251.] 
 
 (</) [Kershaw v. Kelsey, 100 Massachusetts, 572; Jecker v. Montgomery, 
 
 18 Howard, 111; Hanger v. Abbott, Wallace, 535; Montgomery v. U. S., 
 
 15 Ibid., 395; Snell v. Dwight, 120 Massachusetts, 9.]
 
 378 COMMENCEMENT OF WAR, 
 
 State, to whom a debtor could pay the money, which agent was appointed 
 before the war broke out, the payment by the debtor to such agent is 
 lawful. It does not follow that the agent, if he receives the money, will 
 violate the law by remitting it to his principal (/i). 
 
 Debts If a debt between enemies is contracted during the war, it cannot be 
 
 between sued for when the war is over (i) ; but when debts have been contracted 
 lies. before war breaks out, the existence of the war does not extinguish the 
 debts, it simply suspends the remedy of the creditor (k). If the debts 
 are not confiscated during the war, the right to enforce payment revives 
 with peace (I). As the creditor cannot sue for his debt during the war, 
 it has recently been held in America that a statute of limitations does 
 not ran against the creditor while the war lasts (m). In a case where 
 the parties had agreed in their contract that no suit or action should be 
 sustainable unless commenced within twelve months after a certain 
 event should occur, the Court held, that as this contract was followed by 
 a war, by which the parties became enemies, the plaintiff was relieved 
 from his disability to sue within the twelve months (n). \ gjfcsj 
 315 c Another result of war is, that" a contract between a belligerent subject 
 Contracts and a neutral cannot, so long as the war lasts, be performed if the 
 with neu- belligerent subject has agreed to carry it out in the enemy's country. 
 TerformS Before the outbreak of the war between France and Germany in 1870, 
 in enemy's a German vessel was chartered by a British subject to carry a cargo of 
 country. nitrate of soda (contraband of war) from Pisagua to Cork, Cowes, or 
 The Ten- Falmouth, and then to receive orders to proceed to any safe port in 
 tonia. Great Britain, or on the continent between Havre and Hamburgh. On 
 arriving at Falmouth the master received orders to go to Dunkirk, and 
 started for that port. Shortly before arriving there, he was told by a 
 French pilot that war had broken out between France and Germany, 
 and thereupon he sailed to Dover to obtain accurate information. He 
 had appeared off Dunkirk on the 16th of July, 1870, and war was 
 actually declared on the 19th. At Dover he refused to give up the 
 cargo unless the freight was paid. The ship was therefore sued by the 
 consignees of the cargo. The Privy Council held that he was justified 
 in putting back to Dover, and had been guilty of no improper delay or 
 deviation from the voyage. As war was declared, his vessel being 
 German, could not go to Dunkirk, and he was therefore not bound to 
 carry out his contract in that respect. In this particular case the Court 
 allowed- the master the freight from Pisagua to Dover, because Dunkirk 
 was not the only port stipulated for in the charter party, and delivery 
 at Dover was within the terms of the contract. They declined to. decide 
 whether the freight would have been earned if no other port but Dun- 
 kirk had been mentioned (o). 
 
 (h) [Ward v. Smith, 7 Wallace, 452; U. S. v. Grossmayer, 9 Ibid., 75.] 
 
 (i) \_Willison v. Paterson, 7 Taunton, 439.] 
 
 (4) [Ware v. Hilton, 3 Dallas, 199. Upton, Maritime Law, p. 42.] 
 
 (I) [Manning, by Amos (ed. 1875), p. 176. Hanger v. Abbott, 6 Wallace, 537.] 
 
 (m) [Hanger v. Abbott, 6 Wallace, 532; The Protector, 9 Ibid., 687; U. S. 
 
 v. Wiley, 11 Ibid., 508.] 
 
 (n) [Semmes v. Hartford Ins. Co., 13 Wallace, 158.] 
 
 (o) [The Teutania, L. R. 4 P. C. 171. See also The San Roman, L. R. 
 
 3 A. & E. 583; The Express, Ibid., 597; The Patria, Ibid., 436.]
 
 AND ITS IMMEDIATE EFFECTS. 379 
 
 Not only is such intercourse with the enemy, on the part 316> . 
 of subjects of the belligerent State, prohibited and punished the com- 
 with confiscation in the Prize 'Courts of their own country, JJJ^JJ* 7 
 but, during a conjoint war, no subject of an ally can trade on the part 
 with the common enemy, without being liable to the for- 
 feiture, in the Prize Courts of the ally, of his property engaged 
 in such trade. This rule is a corollary of the other ; and is 
 founded upon the principle, that such trade is forbidden to 
 the subjects of the co -belligerent by the municipal law of his 
 own country, by the universal law of nations, and by the 
 express or implied terms of the treaty of alliance subsisting 
 between the allied powers. And as the former rule can be 
 relaxed only by the permission of the sovereign power of the 
 State, so this can be relaxed only by the permission of the 
 allied nations, according to their mutual agreement. A de- 
 claration of hostilities naturally carries with it an interdiction 
 of all commercial intercourse. Where one State only is 
 at war, this interdiction may be relaxed, as to its own sub- 
 jects, without injuring any other State ; but when allied 
 nations are pursuing a common cause against a common 
 enemy, there is an implied, if not an express contract, that 
 neither of the co-belligerent States shall do any thing to 
 defeat the common object. If one State allows its subjects 
 to carry on an uninterrupted trade with the enemy, the con- 
 sequence will be, that it will supply aid and comfort to the 
 enemy, which may be injurious to the common cause. It 
 should seem that it is not enough, therefore, to satisfy the 
 Prize Court of one of the allied States, to say that the other 
 has allowed this practice to its own subjects ; it should also 
 be shown, either that the practice is of such a nature as can- 
 not interfere with the common operations, or that it has the 
 allowance of the other confederate State (p). 
 
 It follows as a corollary from the principle, interdicting all ^ 317. 
 commercial and other pacific intercourse with the public w i th the 
 enemy, that every species of private contract made with his enemy P r - 
 subjects during the war is unlawful. The rule thus deduced 
 is applicable to insurance on enemy's property and trade ; to 
 the drawing and negotiating of bills of exchange between 
 
 (p) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 10. The Neptunus, 6 C. 
 Rob. 403 ; 4 Ibid., 251.
 
 380 
 
 COMMENCEMENT OF WAR, 
 
 subjects of the powers at war ; to the remission of funds, in 
 money or bills, to the enemy's country ; to commercial part- 
 nerships entered into between the subjects of the two coun- 
 tries, after the declaration of war, or existing previous to the 
 declaration ; which last are dissolved by the mere force and 
 act of the war itself, although, as to other contracts, it only 
 suspends the remedy (q). 
 
 318. Grotius, in the second chapter of his third book, where he 
 domiciled ^ s treatin g of tne liability of the property of subjects for the 
 in the t injuries committed by the State to other communities, lays 
 country* down that "by the law of nations, all the subjects of the 
 offending State, who are such from a permanent cause, 
 
 liable to 
 reprisals. 
 
 <VU*M 
 
 whether natives, or emigrants from another country, are 
 liable to reprisals, but not so those who are only travelling 
 or sojourning for a little time ; for reprisals," says he, 
 " have been introduced as a species of charge imposed in 
 order to pay the debts of the public ; from which are exempt 
 those who are only temporarily subject to the laws. Ambas- 
 sadors and their goods are, however, excepted from this lia- 
 bility of subjects, but not those sent to an enemy." In the 
 fourth chapter of the same book, where he is treating of the 
 right of killing and doing other bodily harm to enemies, in 
 what he calls solemn war, he holds that this right extends, 
 " not only to those who bear arms, or are subjects of the 
 author of the war, but to all those who are found within 
 the enemy's territory. In fact, as we have reason to fear 
 the hostile intentions even of strangers who are within the 
 enemy's territory at the time, that is sufficient to render the 
 right of which we are speaking applicable even to them in 
 a general war. In which respect there is a distinction be- 
 tween war and reprisals, which last, as we have seen, are a 
 kind of contribution paid by the subjects for the debts of the 
 State " (r). 
 
 (q) Bynkershoek, Qnsest. Jur. Pub. lib. i. cap. 21. Duponceau's Transl. 
 p. 165, Note. Kent's Commentaries on American Law, vol. i. pp. 67, 68, 
 5th ed. [Griswold v. Waddington, 16 Johnson, 438 ; Esposito v. Bowden, 
 7 E. & B. 785; The William fiagaley, 5 Wallace, 377.] 
 
 (r) " Cfeterum non minus in hac materia quam in aliis cavendum est, ne 
 confundamus ea quse juris gentium sunt proprie, et ea qua jure civili aut 
 pactis populorum constituuntur. 
 
 "Jure gentium subjacent pignorationi omnes subditi injuriam facientes, 
 qui tales sunt ex causa permanente, sive indigenes, sive advenae, non qui 
 transeundi aut morae exiguse causa alicubi sunt. Introductae eniin sunt pig-
 
 AND ITS IMMEDIATE EFFECTS. 381 
 
 Barbeyrac, in a note collating these passages, observes, . 319 - 
 that " the late M. Cocceius, in a dissertation which I have O f Barbey- 
 already cited, De Jure Belli in Amicos, rejects this distinc- rac- 
 tion, and insists that even those foreigners who have not been 
 allowed time to retire ought to be considered as adhering to 
 the enemy, and for that reason justly exposed to acts of 
 hostility. In order to supply this pretended defect, he after- 
 wards distinguishes foreigners who remain in the country, 
 from those who only transiently pass through it, and are con- 
 strained by sickness or the necessity of their affairs. But 
 this is alone sufficient to show that, in this place, as in many 
 others, he criticized our author without understanding him. 
 In the following paragraph, Grotius manifestly distinguishes 
 from the foreigners of whom he has just spoken those who 
 are permanent subjects of the enemy, by whom he doubtless 
 understands, as the learned Gronovius has already explained, 
 those who are doiniciled in the country. Our author explains 
 his own meaning in the second chapter of this book, in 
 speaking of reprisals, which he allows against this species of 
 foreigners, whilst he does not grant them against those who 
 only pass through the country, or are temporarily resident 
 in it " (s). 
 
 Whatever maybe the extent of the claims of a man's native 
 country upon his political allegiance, there can be no doubt 
 that the natural-born subject of one country may become the 
 citizen of another, in time of peace, for the purposes of trade, 
 
 norationes ad exemplum onerum, quse pro exsolvendis debitis publicis induc- 
 untur, quorum immunes sunt qui tantum pro tempore loci legibus suhsunt. 
 A numero tamen subditorum jure gentium excipiuntur legati, non ad hostes 
 nostros missi, et res eorum." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. ii. 
 7, No. 1. 
 
 " Late autem patet hoc jus licentiae, nam primum non eos tantum compre- 
 hend it qui actu ipso arma gerunt, aut qui belluni rnoventis subditi sunt, sed 
 omnes etiam qui intra fines sunt hostiles : quod apertum fit ex ipsa formula 
 apud Livium, Hostis sit tile, quique intra prcesidia ejus sunt ; nimirum quia 
 ab illis quoque damnum metui potest, quod in bello continuo et universal! 
 sufficit ut locum habeat jus de quo agimus : aliter quam in pignorationibus, 
 quse, ut diximus, ad exemplum onerum impositorum ad luenda ciyitatis de- 
 bita, introductse sunt : quare mirum non est, si, quod Baldus notat, multo 
 
 Elus licentise sit in bello quam in pignorandi jure. Et hoc quidem quod dixi 
 i peregrinis, qui commisso cognitoque bello intra fines hosticos veniunt, du- 
 hitationem non habet. 
 
 "At qui ante bellum eo iverant, videntur jure gentium pro hostibus haberi, 
 post modicum tempus intra quoddiscederepotuerant." Ibid. lib. iii. cap. iv. 
 67. 
 
 (s) Grotius, par Barbeyrac, in loc. [See on this point Whiting, War 
 Powers under the Constitution of the United States (43rd ed.), p. 334.]
 
 382 
 
 COMMENCEMENT OF WAR, 
 
 Species of 
 residence 
 constitut- 
 ing domi- 
 cile. 
 
 321. 
 
 The St. 
 Eustatius. 
 
 The Har- 
 mony. 
 
 and may become entitled to all the commercial privileges 
 attached to his acquired domicile. On the other hand, if 
 war breaks out between his adopted country and his native 
 country, or any other, his property becomes liable to reprisals 
 in the same manner as the effects of those who owe a perma- 
 nent allegiance to the enemy State. 
 
 As to what species of residence constitutes such a domicile 
 as will render the party liable to reprisals, the text writers 
 are deficient in definitions and details. Their defects are 
 supplied by the precedents furnished by the British Prize 
 Courts, which, if they have not applied the principle with 
 undue severity in the case of neutrals, have certainly not 
 mitigated it in its application to that of British subjects 
 resident in the enemy's country on the commencement of 
 hostilities. 
 
 In the judgment of the Lords of Appeal in Prize Causes, 
 upon the cases arising out of the capture of St. Eustatius 
 by Admiral Rodney, delivered in 1785, by Lord Camden, he 
 stated that "if a man went into a foreign country upon a 
 visit, to travel for health, to settle a particular business, or 
 the like, he thought it would be hard to seize upon his 
 goods ; but a residence, not attended with these circum- 
 stances, ought to be considered as a permanent residence." 
 In applying the evidence and the law to the resident foreigners 
 in St. Eustatius, he said, that " in every point of view, they 
 ought to be considered resident subjects. Their persons, 
 their lives, their industry, were employed for the benefit of 
 the State under whose protection they lived ; and if war broke 
 out, they continuing to reside there, paid their proportion of 
 taxes, imposts, and the like, equally with natural-born sub- 
 jects, and no doubt come within that description " (). 
 
 " Time," says Sir W. Scott, " is the grand ingredient in 
 constituting domicile. In most cases it is unavoidably con- 
 clusive. It is not unfrequently said that if a person comes 
 only for a special purpose, that shall not fix a domicile. This 
 is not to be taken in an unqualified latitude, and without some 
 respect to the time which such a purpose may or shall occupy ; 
 
 (t) M.S. Proceedings of the Commissioners under the Treaty of 1794, be- 
 tween Great Britain and the United States. Opiuion of Mr. W. Pinkney, in 
 the case of The Betsey.
 
 AND ITS IMMEDIATE EFFECTS. 383 
 
 for if the purpose be of such a nature as may probably, or 
 does actually, detain the person for a great length of time, 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. Against such a long resi- 
 dence, the plea of an original special purpose could not be 
 averred ; it must be inferred in such a case, that other pur- 
 poses forced themselves upon him, and mixed themselves 
 with the original design, and impressed upon him the character 
 of the country where he resided. Supposing a man comes 
 into a belligerent country at or before the beginning of the 
 war, it is certainly reasonable not to bind him too soon to an 
 acquired character, and to allow him a fair time to disentangle 
 himself; but if he continues to reside during a good part of the 
 war, contributing by the payment of taxes and other means 
 to the strength of that country, 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 frauds 
 and abuses of masked, pretended, original, and sole purposes 
 of a long-continued residence. There is a time which will 
 estop such a plea ; no rule can fix the time a priori, but such 
 a rule 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 domicile in a certain quantity 
 of time, would nevertheless have that effect if distributed over 
 a larger space of time. This matter is to be taken in the 
 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, with but few exceptions, that mere 
 length of time shall not constitute a domicile " () 
 
 In the case of The Indian Chief, determined in 1800, Mr. 323. 
 Johnson, a citizen of the United States, domiciled in England, " 
 
 had engaged in a mercantile enterprise to the British East 
 Indies, a trade prohibited to British subjects, but allowed to 
 American citizens under the commercial treaty of 1794, 
 between the United States and Great Britain. The vessel 
 came into a British port on its return voyage, and was seized 
 as engaged in illicit trade. Mr. Johnson, having then left 
 England, was determined not to be a British subject at the 
 (u) The Harmony, 2 C. Rob. 324.
 
 384 COMMENCEMENT OF WAR, 
 
 time of capture, and restitution was decreed. In delivering 
 his judgment in this case, Sir W. Scctt said, " 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 turned his back on 
 the country where he had resided, on his way to his own 
 country, he was in the act of resuming his original character, 
 and must be considered as an American. The character that 
 is gained by residence, ceases by non-residence. It is an 
 adventitious character, and no longer adheres to him from the 
 moment that he puts himself in motion, bond fide, to quit 
 the country, sine animo revertendi " (x). 
 
 324. The native character easily reverts, and it requires fewer 
 character* 3 circumstances to constitute domicile, in the case of a native 
 easi'y subject, than to impress the national character on one who is 
 originally of another country. Thus, the property of a French- 
 man who had been residing, and was probably naturalized, in 
 the United States, but who had returned to St. Domingo, and 
 shipped from thence the produce of that island to France, was 
 condemned in the High Court of Admiralty (y). 
 
 In The Indian Chief, the case of Mr. Dutilth is referred to 
 by the claimant's counsel, as having obtained restitution, 
 though at the time of sailing he was resident in the enemy's 
 country : but the decision of the Lords of Appeal, in 1800, is 
 mentioned by Sir C. Robinson, in which different portions of 
 Mr. Dutilth's property were condemned or restored, according 
 to the circumstances of his residence at the time of capture. 
 That decision is more particularly stated by Sir J. Nicholl, at 
 the hearing of the case of The Harmony before the Lords, 
 July 7, 1803. " The case of Mr. Dutilth also illustrates 
 the present. He came to Europe about the end of July, 1793, 
 at the time when there was a great deal of alarm on account 
 of the state of commerce. He went to Holland, then not only 
 in a state of amity, but of alliance with this country ; he con- 
 tinued there until the French entered. During the whole 
 time he was there, he was without any establishment ; he had 
 
 (*) The Indian Chief, 3 C. Rob. 12. 
 
 (y) La Virginie, 5 C. Rob. 99. The same rule is also adopted in the prize 
 law of France, Code des Prises, torn. i. pp. 92, 139, 303, and by the American 
 Prize Courts. The Dos Hermanos, 2 Wheaton, 76.
 
 AND ITS IMMEDIATE EFFECTS. 385 
 
 no counting-house ; he had no contracts or dealings with 
 contractors there ; he employed merchants there to sell his 
 property, paying them a commission. Upon the French 
 entering into Holland, he applied for advice to know what was 
 left for him to do under the circumstances, having remained 
 there on account of the doubtful state of mercantile credit, 
 which not only affected Dutch and American, but English 
 houses, who were all looking after the state of credit in that 
 country. In 1794, when the French came there, Mr. D. ap- 
 plied to Mr. Adams, the American minister, who advised him 
 to stay until he could get a passport. He continued there 
 until the latter end of that year, and, having wound up his 
 concerns, came away. Some part of his property was captured 
 before he came there. That part which was taken before he 
 came there was restored to him (The Fair American, Adm., 
 1796), but that part which was taken while he was there was 
 condemned, and that because he was in Holland at the time 
 of the capture." The Hannibal and Pomona, Lords, 1800 (z). 
 
 The case of The Diana, determined by Sir W. Scott, in y/ 385. 
 1803, is also full of instruction on this subject. During the 
 war which commenced in 1795 between Great Britain and 
 Holland, the colony of Demerara surrendered to the British 
 arms, and by the treaty of Amiens it was restored to the 
 Dutch. That treaty contained an article allowing the in- 
 habitants, of whatever country they might be, a term of three 
 years, to be computed from the notification of the treaty, for 
 the purpose of disposing of their effects acquired before or 
 during the war, in which term they might have the free en- 
 joyment of their property. Previous to the declaration of war 
 against Holland, in 1803, The Diana and several other vessels, 
 laden with colonial produce, were captured on a voyage from 
 Demerara to Holland. Immediately after the declaration, 
 and before the expiration of the three years from the notifica- 
 tion of the treaty of Amiens, Demerara again surrendered to 
 Great Britain. Claims to the captured property were filed by 
 original British subjects, inhabitants of Demerara, some of 
 whom had settled in the colony while it was in possession of 
 Great Britain ; others before that event. The cause came on 
 for hearing after it had again become a British colony. 
 
 (z) Wheaton's Rep. vol. ii. Appendix, 27, 28, 29.
 
 386 COMMENCEMENT OF WAR, 
 
 Sir W. Scott decreed restitution to those British subjects 
 who had settled in the colony while in British possession, but 
 condemned the property of those who had settled there before 
 that time. He held that those of the first class, by settling 
 in Demerara while belonging to Great Britain, afforded a pre- 
 sumption of their intending to return, if the island should be 
 transferred to a foreign power, which presumption, recognized 
 by the treaty, relieved those claimants from the necessity of 
 proving such intention. He thought it reasonable that they 
 should be admitted to their jus postliminii, and he held them 
 entitled to the protection of British subjects. But he was 
 clearly of opinion that " mere recency of establishment would 
 not avail, if the intention of making a permanent residence 
 there was fixed upon the party. The case of Mr. Whitehill 
 fully established this point. He had arrived at St. Eustatius 
 only a day or two before Admiral Rodney and the British 
 forces made their appearance ; but it was proved that he had 
 gone to establish himself there, and his property was con- 
 demned. Here recency, therefore, would not be sufficient." 
 
 But the property of those claimants who had settled in 
 Demerara before that colony came into the possession of 
 Great Britain was condemned. " Having settled without any 
 faith in British possession, it cannot be supposed," he said, 
 " that they would have relinquished their residence because 
 that possession had ceased. They had passed from one 
 sovereignty with indifference, and if they may be supposed 
 to have looked again to a connection with this country, they 
 must have viewed it as a circumstance that was in no degree 
 likely to affect their intention of remaining there. On the 
 situation of persons settled there previous to the time of 
 British possession, I feel myself obliged to pronounce, that 
 they must be considered in the same light as persons resident 
 in Amsterdam. It must be understood, however, that if 
 there were among these any who were actually removing, 
 and that fact is properly ascertained, their goods may be 
 capable of restitution. All that I mean to express is, that 
 there must be evidence of an intention to remove on the part 
 of those who settled prior to British possession, the presump- 
 tion not being in their favour " (a). 
 
 (a) The Diana, 5 C. Rob. 60.
 
 AND ITS IMMEDIATE EFFECTS. 387 
 
 The case of The Ocean, determined in 1804, was a claim 326. 
 relating to British subjects settled in foreign States in time persons 
 of amity, and taking early measures to withdraw themselves removing 
 on the breaking out of war. It appeared that the claimant had enemy's 
 been settled as a partner in a house of trade in Holland, but ^"^1^ 
 that he had made arrangements for the dissolution of the ing out of 
 partnership, and was prevented from removing personally ^' Q cean . 
 only by the violent detention of all British subjects who 
 happened to be within the territories of the enemy at the 
 breaking out of the war. In this case Sir W. Scott said : 
 " It would, I think, be going further than the law re- 
 quires, to conclude this person by his former occupation, 
 and by his present constrained residence in France, so as 
 not to admit him to have taken himself out of the effect 
 of supervening hostilities, by the means which he had used 
 for his removal. On sufficient proof being made of the pro- 
 perty, I shall be disposed to hold him entitled to restitu- 
 tion " (b). 
 
 In a note to this case, Sir C. Robinson states that the 
 situation of British subjects wishing to remove from the 
 enemy's country on the event of a war, but prevented by the 
 sudden occurrence of hostilities from taking measures suffi- 
 ciently early to obtain restitution, formed not unfrequently 
 a case of considerable hardship in the Prize Court. He 
 advises persons so situated, on their actual removal, to 
 make application to government for a special pass, rather 
 than to trust valuable property to the effect of a mere inten- 
 tion to remove, dubious as that intention may frequently 
 appear under the circumstances that prevent it from being 
 carried into execution. And Sir W. Scott, in the case of 
 The Dree Gebroeders, observes, "that pretences of with- 
 drawing funds are at all times to be watched with consider- 
 able jealousy ; but when the transaction appears to have been 
 conducted bond fide with that view, and to be directed only 
 to the removal of property, which the accidents of war may 
 have lodged in the belligerent country, cases of this kind 
 are entitled to be treated with some indulgence." But 
 in a subsequent case, where an indulgence was allowed by 
 the Court for the withdrawal of British property under 
 
 (b) 5 C. Eob. 91. 
 
 c c 2
 
 >8 COMMENCEMENT OF WAR, 
 
 peculiar circumstances, he intimated that the degree of resti- 
 tution, in that particular case, was not to be understood as 
 in any degree relaxing the necessity of obtaining a license, 
 wherever property is to be withdrawn from the enemy's 
 country (c). 
 
 327. The same principles, as to the effect of domicile, or com- 
 of the mercial inhabitancy in the enemy's country, were adopted by 
 fourts iCan the P rize tri kunals of tbe United States, during the late war 
 The Venus, with Great Britain. The rule was applied to the case of 
 native British subjects, who had emigrated to the United 
 States long before the war, and became naturalized citizens 
 under the laws of the Union, as well as to native citizens 
 residing in Great Britain at the time of the declaration. The 
 naturalized citizens in question had, long prior to the decla- 
 ration of war, returned to their native country, where they 
 were domiciled and engaged in trade at the time the ship- 
 ments in question were made. The goods were shipped 
 before they had a knowledge of the war. At the time of the 
 capture, one of the claimants was yet in the enemy's country, 
 but had, since he heard of the capture, expressed his anxiety 
 to return to the United States, but had been prevented by 
 various causes set forth in his affidavit. Another had actually 
 returned some time after the capture, and a third was still in 
 the enemy's country. 
 
 In pronouncing its judgment in this case, the Supreme 
 Court stated that, there being no dispute as to the facts upon 
 which the domicile of the claimants was asserted, the ques- 
 tions of law to be considered were two : First, by what means, 
 and to what extent, a national character may be impressed 
 upon a person, different from that which permanent alle- 
 giance gives him ? and, secondly, what are the legal conse- 
 quences to which this acquired character may expose him, in 
 the event of a war taking place between the country of his 
 residence and that of his birth, or that in which he had been 
 naturalized ? 
 
 328. Upon the first of these questions, the opinions of the 
 
 Domicile ^^ writers an( j fa e decisions of the British Courts of Prize 
 
 tinguished already cited, were referred to ; but it was added that, in 
 
 legiance. deciding whether a person has obtained the right of au 
 
 (c) 4 C. Rob. 234. The Ju/row Catharine, 5 C. Rob. 141.
 
 AND ITS IMMEDIATE EFFECTS. 389 
 
 acquired domicile, it was not to be expected that much, if any 
 assistance, should be derived from mere elementary writers on 
 the law of nations. They can only lay down the general 
 principles of law ; and it becomes the duty of courts of 
 justice to establish rules for the proper application of those 
 principles. The question, whether the person to be affected 
 by the right of domicile has sufficiently made known his 
 intention of fixing himself permanently in the foreign 
 country, must depend upon all the circumstances of the 
 case. If he has made no express declaration on the subject, 
 and his secret intention is to be discovered, his acts must 
 be attended to as affording the most satisfactory evidence of 
 his intention. On this ground the courts of England have 
 decided, that a person who removes to a foreign country, 
 settles himself there, and engages in the trade of the 
 country, furnishes by these acts such evidences of an inten- 
 tion permanently to reside there, as to stamp him with 
 the national character of the State where he resides. In 
 questions on this subject, the chief point to be considered is 
 the animus manendi ; and courts are to devise such reason- 
 able rules of evidence as may establish the fact of intention. 
 If it sufficiently appears that the intention of removing was 
 to make a permanent settlement, or for an indefinite time, 
 the right of domicile is acquired by residence even of a few 
 days. This was one of the rules of the British Prize Courts, 
 and it appeared to be perfectly reasonable. Another was that 
 a neutral or subject, found residing in a foreign country, is 
 presumed to be there animo manendi ; and if a State at war 
 should bring his national character into question, it lies upon 
 him to explain the circumstances of his residence. As to 
 some other rules of the Prize Courts of England, particularly 
 those which fix the national character of a person, on the 
 ground of constructive residence or the peculiar nature of his 
 trade, the court was not called upon to give an opinion at that 
 time ; because, in the present case, it was admitted that the 
 claimants had acquired a right of domicile in Great Britain at 
 the time of the breaking out of the war between that country 
 and the United States. 
 
 The next question was, what are the consequences to which 329 ; 
 this acquired domicile may legally expose the person entitled domicile in
 
 890 COMMENCEMENT OF WAR, 
 
 BtauT 8n * ^' * n ^ e even t f a war taking place between the govern- 
 ment under which he resides and that to which he owes 
 permanent allegiance. A neutral, in this situation, if he 
 should engage in open hostilities with the other belligerent, 
 would be considered and treated as an enemy. A citizen of 
 the other belligerent could not be so considered, because he 
 could not, by any act of hostility, render himself, strictly 
 speaking, an enemy, contrary to his permanent allegiance ; 
 but although he cannot be considered an enemy, in the strict 
 sense of the word, yet he is deemed such with reference to 
 the seizure of so much of his property concerned in the 
 enemy's trade as is connected with his residence. It is found 
 adhering to the enemy ; he is himself adhering to the enemy, 
 although not criminally so, unless he engages in acts of 
 hostility against his native country, or perhaps refuses, when 
 required by his country, to return. The same rule, as to 
 property engaged in the commerce of the enemy, applies to 
 neutrals, and for the same reason. The converse of this rule 
 inevitably applies to the subject of a belligerent State domi- 
 ciled in a neutral country ; he is deemed a neutral by both 
 belligerents, with reference to the trade which he carries on 
 with the adverse belligerent, and with the rest of the world. 
 33 9; But this national character which a man acquires by resi- 
 tiou of dence may be thrown off at pleasure, by a return to his native 
 domicile. coun try, or even by turning his back on the country in which 
 he resided, on his way to another. The reasonableness of 
 this rule can hardly be disputed. Having once acquired a 
 national character, by residence in a foreign country, he ought 
 to be bound by all the consequences of it until he has thrown 
 it off, either by an actual return to his native country, or to 
 that where he was naturalized, or by commencing his re- 
 moval, bond fide, and without an intention of returning. If 
 any thing short of actual removal be admitted to work a 
 change in the national character acquired by residence, it 
 seems perfectly reasonable that the evidence of a bond fide 
 intention should be such as to leave no doubt of its sincerity. 
 Mere declarations of such an intention ought never to be relied 
 upon, when contradicted, or at least rendered doubtful, by a 
 continuance of that residence which impressed the character. 
 They may have been made to deceive ; or, if sincerely made,
 
 AND ITS IMMEDIATE EFFECTS. 391 
 
 they may never be executed. Even the party himself ought 
 not to be bound by them, because he may afterwards find 
 reason to change his determination, and ought to be permitted 
 to do so. But when he accompanies these declarations by 
 acts which speak a language not to be mistaken, and can 
 hardly fail to be consummated by actual removal, the strongest 
 evidence is afforded which the nature of such a case can 
 furnish. And is it not proper that the courts of a belligerent 
 nation should deny to any person the right to use a character 
 so equivocal, as to put in his power to claim whichever may 
 best suit his purpose, when it is called in question ? If his 
 property be taken trading with the enemy, shall he be allowed 
 to shield it from confiscation, by alleging that he had intended 
 to remove from the enemy's country to his own, then neutral, 
 and therefore that, as a neutral, the trade was to him lawful ? 
 If war exists between the country of his residence and his 
 native country, and his property be seized by the former or by 
 the latter, shall he be heard to say, in the former case, that he 
 was a domiciled subject in the country of the captor ; and in 
 the latter, that he was a native subject of the country of that 
 captor also, because he had declared an intention to resume 
 his native character, and thus to parry the belligerent rights 
 of both ? It was to guard against such inconsistencies, and 
 against the frauds which such pretensions, if tolerated, would 
 sanction, that the rule above mentioned had been adopted. 
 Upon what sound principle could a distinction be framed 
 between the case of a neutral, and the subject of one belli- 
 gerent domiciled in the country of the other, at the breaking 
 out of the war ? The property of each, found engaged in the 
 commerce of their adopted country, belonged to them, before 
 the war, in the character of subjects of that country, so long 
 as they continued to retain their domicile ; and when war 
 takes place between that country and any other, by which the 
 two nations and all their subjects become enemies to each 
 other, it follows that this property, which was once the pro- 
 perty of a friend, belongs now to him who, in reference to that 
 property, is an enemy. 
 
 This doctrine of the common-law courts and prize tribunals 331. 
 of England is founded, like that mentioned under the first J^* f 
 head, upon international law, and was believed to be strongly foreign 
 
 domicile.
 
 392 
 
 COMMENCEMENT OF WAR, 
 
 supported by reason and justice. And why, it might be con- 
 fidently asked, should not the property of enemy's subjects be 
 exposed to the law of reprisals and of war, so long as the 
 owner retains his acquired domicile, or, in the words of 
 Grotius, continues a permanent residence in the country of 
 the enemy ? They were before, and continue after the war, 
 bound by such residence to the society of which they were 
 members, subject to the laws of the State, and owing a quali- 
 fied allegiance thereto. They are obliged to defend it, (with 
 an exception of such subject with relation to his native 
 country,) in return for the protection it affords them, and the 
 privileges which the laws bestow upon them, as subjects. 
 The property of such persons, equally with that of the native 
 subjects in their locality, is to be considered as the goods of 
 the nation, in regard to other States. It belongs in some sort 
 to the State, from the right which the State has over the 
 goods of its citizens, which make a part of the sum total of its 
 riches, and augment its power. Vattel, liv. i., ch. 14, 182. 
 " In reprisals," continues the same author, " we seize on the 
 property of the subject, just as on that of the sovereign ; every 
 thing that belongs to the nation is subject to reprisals, wher- 
 ever it can be seized, with the exception of a deposit intrusted 
 to the public faith." Liv. ii., ch. 18, 844. Now if a per- 
 manent residence constitutes the person a subject of the 
 country where he is settled, so long as he continues to reside 
 there, and subjects his property to the law of reprisals, as 
 a part of the property of the nation, it would seem difficult to 
 maintain that the same consequences would not follow, in the 
 case of an open and public war, whether between the adopted 
 and native countries of persons so domiciled, or between the 
 former and any other nation. 
 
 If, then, nothing but an actual removal, or a bond fide 
 beginning to remove, could change a national character ac- 
 quired by domicile ; and if, at the time of the inception of 
 the voyage, as well as at the time of capture, the property 
 belonged to such domiciled person, in his character of a 
 subject ; what was there that did or ought to exempt it from 
 capture by the cruisers of his native country, if, at the time 
 of capture, he continues to reside in the country of the 
 adverse belligerent ?
 
 AND ITS IMMEDIATE EFFECTS. 393 
 
 It was contended that a native or naturalized subject of one ^J^ 2 ; 
 country, who is surprised in the country where he was domi- election to 
 ciled, by a declaration of war, ought to have time to make 
 
 election to continue there, or to remove to the country to not ai- 
 which he owes permanent allegiance ; and that, until such 
 election be made, his property ought to be protected from 
 capture by the cruisers of the latter. This doctrine was 
 believed to be as unfounded in reason and justice, as it clearly 
 was in law. In the first place, it was founded upon a pre- 
 sumption that the person will certainly remove, before it can 
 possibly be known whether he may elect to do so or not. It 
 was said, that the presumption ought to be made, because, 
 upon receiving information of the war, it would be his duty to 
 return home. This position was denied. It was his duty to 
 commit no acts of hostility against his native country, and to 
 return to her assistance when required to do so ; nor would 
 any just nation, regarding the mild principles of the law of 
 nations, require him to take arms against his native country, 
 or refuse permission to him to withdraw whenever he wished 
 to do so, unless. under peculiar circumstances, which, by such 
 removal, at a critical period, might endanger the public safety. 
 The conventional law of nations was in conformity with these 
 principles. It is not uncommon to stipulate in treaties, that 
 the subjects of each party shall be allowed to remove with 
 their property, or to remain unmolested. Such a stipulation 
 docs not coerce those subjects to remove or remain. They are 
 left free to choose for themselves ; and, when they have made 
 their election, may claim the right of enjoying it, under the 
 treaty. But until the election is made, their former character 
 continues unchanged. Until this election is made, if the 
 claimant's property found upon the high seas, engaged in the 
 commerce of his adopted country, should be permitted by the 
 cruisers of the other belligerent to pass free, under a notion 
 that he may elect to remove upon notice of the war, and 
 should arrive safe ; what is to be done, in case the owner of it 
 should elect to remain where he is ? For if captured, and 
 brought immediately to adjudication, it must, upon this doc- 
 trine, be acquitted, until the election to remain is made and 
 known. In short, the point contended for would apply the 
 doctrine of relation to cases where the party claiming the
 
 394 COMMENCEMENT OF WAR, 
 
 benefit of it may gain all and can lose nothing. If he, after 
 the capture, should find it for his interest to remain where he 
 is domiciled, his property, emharked before his election was 
 made, is safe ; and if he finds it best to return, it is safe, of 
 course. It is safe, whether he goes or stays. This doctrine 
 producing such contradictory consequences was not only un- 
 supported by any authority, but would violate principles long 
 and well established in the Prize Courts of England, and 
 which ought not, without strong reasons which may render 
 them inapplicable to America, to be disregarded by the Court. 
 The rule there was, that the character of property during war 
 cannot be changed in transitu, by any act of the party, subse- 
 quent to the capture. The rule indeed went further : as to 
 the correctness of which, in its greatest extension, no judg- 
 ment needed then to be given ; but it might safely be affirmed, 
 that the change could not and ought not to be effected by an 
 election of the owner and shipper, made subsequent to the 
 capture, and more especially after a knowledge of the capture 
 is obtained by the owner. Observe the consequences. The 
 capture is made and known. The owner is allowed to delibe- 
 rate whether it is his intention to remain a subject of his 
 adopted or of his native country. If the capture be made by 
 the former, then he elects to become a subject of that country ; 
 if by the latter, then a subject of that. Could such a privi- 
 leged situation be tolerated by either belligerent ? Could any 
 system of law be correct which places an individual, who 
 adheres to one belligerent, and down to the period of his elec- 
 tion to remove, contributes to increase her wealth, in so 
 anomalous a situation as to be clothed with the privileges 
 of a neutral as to both belligerents ? This notion about a 
 temporary state of neutrality impressed upon a subject of one 
 of the belligerents, and the consequent exemption of his pro- 
 perty from capture by either, until he has had notice of the 
 war and made his election, was altogether a novel theory, and 
 seemed from the course of the argument to owe its origin to 
 a supposed hardship to which the contrary doctrine exposes 
 him. But if the reasoning employed on the subject was cor- 
 rect, no such hardship could exist ; for if before the election 
 is made, his property on the ocean is liable to capture by the 
 cruisers of his native and deserted country, it is not only free
 
 AND ITS IMMEDIATE EFFECTS. 395 
 
 from capture by those of his adopted country, but is under its 
 protection. The privilege is supposed to be equal to the 
 disadvantage, and is , therefore just. The double privilege 
 claimed seems too unreasonable to be granted (d). 
 
 The national character of merchants residing in Europe 333 - 
 
 1 Me -chants 
 
 and America is derived from that of the country in which residing in 
 tlioy reside. In the eastern parts of the world, European theea * t< 
 persons, trading under the shelter and protection of the 
 factories founded there, take their national character from 
 that association under which they live and carry on their 
 trade : this distinction arises from the nature and habits of 
 the countries. In the western part of the world, alien mer- 
 chants mix in the society of the natives ; access and inter- 
 mixture are permitted, and they become incorporated to 
 nearly the full extent. But in the east, from almost the 
 oldest times, an immiscible character has been kept up ; 
 foreigners are not admitted into the general body and mass 
 of the nation ; they continue strangers and sojourners, as all 
 their fathers were. Thus, with respect to establishments in 
 Turkey, the British Courts of Prize, during war with Holland, 
 determined that a merchant, carrying on trade at Smyrna, 
 under the protection of the Dutch consul, was to be con- 
 sidered a Dutchman, and condemned his property as belong- 
 ing to an enemy. And thus in China, and generally through- 
 out the east, persons admitted into a factory are not known 
 in their own peculiar national character : and not being per- 
 mitted to assume the character of the country, are considered 
 only in the character of that association or factory. 
 
 But these principles are considered not to be applicable to 
 the vast territories occupied by the British in Hindostan ; 
 because, as Sir W. Scott observes, "though the sovereignty 
 of the Mogul is occasionally brought forward for the purposes 
 of policy, it hardly exists otherwise than as a phantom : it is 
 not applied in any way for the regulation of their establish- 
 ments. Great Britain exercises the power of declaring war 
 and peace, which is among the strongest marks of actual 
 sovereignty ; and if the high and empyrean sovereignty of 
 the Mogul is sometimes brought down from the clouds, as it 
 
 (d) The Venus, 8 Cranch, 253 ; The Mary and Susan, 1 Wheaton, 54 ; 
 U. k>. v. Guillem, 9 Howard, 60.
 
 390 COMMENCEMENT OF WAR, 
 
 were, for the purposes of policy, it by no means interferes with 
 the actual authority which that country, and the East India 
 Company, a creature of that country, exercise there with full 
 effect. Merchants residing there are hence considered as 
 British subjects" (e). 
 
 334. I n general, the national character of a person, as neutral or 
 tradTinthe enemy, is determined by that of his domicile ; but the pro- 
 oiurtr' 8 P er ty f a P erson ma y acquire a hostile character, independ- 
 ently of his national character, derived from personal residence. 
 Thus the property of a house of trade established in the 
 enemy's country is considered liable to capture and condemna- 
 tion as prize. This rule does not apply to cases arising at 
 the commencement of a war, in reference to persons who, 
 during peace, had habitually carried on trade in the enemy's 
 country, though not resident there, and are therefore entitled 
 to time to withdraw from that commerce. But if a person 
 enters into a house of trade in the enemy's country, or con- 
 tinues that connection during the war, he cannot protect him- 
 self by mere residence in a neutral country (/). 
 
 335. The converse of this rule of the British Prize Courts, which 
 of'the rse nas also been adopted by those of America, is not extended.^to 
 rule - the case of a merchant residing in a hostile country, and having 
 a share in a house of trade in a neutral country. Residence 
 in a neutral country will not protect his share in a house 
 established in the enemy's country, though residence in the 
 enemy's country will condemn his share in a house established 
 in a neutral country. It is impossible not to see, in this want 
 of reciprocity, strong marks of the partiality towards the 
 interests of captors, which is perhaps inseparable from a prize 
 code framed by judicial legislation in a belligerent country, and 
 adapted to encourage its naval exertions (g). 
 
 I 336 The produce of an enemy's colony, or other territory, is to 
 Produce be considered as hostile property so long as it belongs to the 
 enemy's owner of the soil, whatever may be his national character in 
 teriitory other respects, or wherever may be his place of residence, 
 as hostile, This rule of the British Prize Courts was adopted by the 
 
 (e) The Indian Chief, 3 C. Eob. 12. 
 
 (/) The Vigilantia, 1 C. Rob. 1; The Susa, 2 C. Rob. 255; The Portland, 
 3 C. Rob. 41; The Jonge Klassina, 5 C. Rob. 297; The Antonia Johanna, 1 
 Wheaton, 159; The Frcundscliaft, 4 Wheaton, 105. 
 
 (g) Mr. Chief Justice Marshall, in The Venus, 8 Cranch, 253.
 
 AND ITS IMMEDIATE EFFECTS. 397 
 
 Supreme Court of the United States during the late war with *> long as 
 Great Britain, in the following case. The island of Santa to t\\e" S 
 Cruz, belonging to the. King of Denmark, was subdued during JJ^f* 
 the late European war by the arms of his Britannic Majesty, whatever 
 
 Adrian Benjamin Bentzon, an officer of the Danish govern- JS^/" 8 
 ment, and a proprietor of land in the island, withdrew from character 
 the island on its surrender, and had since resided in Denmark. SEaSSe?* 1 
 The property of the inhabitants being secured to them by the 
 capitulation, he still retained his estate in the island under 
 the management of an agent, who shipped thirty hogsheads 
 of sugar, the produce of that estate, on board a British ship, 
 and consigned to a commercial house in London, on account 
 and risk of the owner. On her passage the vessel was 
 captured by an American privateer, and brought in for ad- 
 judication. The sugars were condemned in the Court below 
 as prize of war, and the sentence of condemnation was affirmed 
 on appeal by the Supreme Court. 
 
 In pronouncing its judgment, it was stated by the Court, 337. 
 that some doubt had been suggested whether Santa Cruz, Hogskm^ 
 while in the possession of Great Britain, could properly be f sut J ar - 
 considered as a British island. But for this doubt there 
 could 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 domain of the conqueror, so 
 long as he retains the possession and government of them. 
 The island of Santa Cruz, after its capitulation, remained a 
 British island until it was restored to Denmark. 
 
 The question was, whether the produce of a plantation in 
 that island, shipped by the proprietor himself, who was a 
 Dane residing in Denmark, must be considered as British, 
 and therefore enemy's property. 
 
 In arguing this question the counsel for the claimants had 
 made two points. 1. That the case did not come within the 
 rule applicable to shipments from an enemy's country, even 
 as laid down in the British Courts of Admiralty. 2. That 
 the rule had not been rightly laid down in those Courts, and 
 consequently would not be adopted in those of the United 
 States. 
 
 1. Did the rule laid down in the British Courts of
 
 398 COMMENCEMENT OF WAR, 
 
 British Admiralty embrace this case ? It appeared to the Court 
 cases by that the case of The Phoenix was precisely in point. In that 
 t 'reme" case & vesse ^ was captured in a voyage from Surinam to 
 Com-t. Holland, and a part of the cargo was claimed by persons re- 
 siding in Germany, then a neutral country, as the produce of 
 their estates in Surinam. The counsel for the captors con- 
 sidered the law of the case as entirely settled. The counsel 
 for the claimants did not controvert this position. They 
 admitted it, but endeavoured to extricate their case from 
 the general principle by giving it the protection of the treaty 
 of Amiens. In pronouncing his judgment, Sir William Scott 
 laid 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 argument there, than 
 that the possession of the soil does impress upon the owner the 
 character of the country, so far as the produce of that planta- 
 tion is concerned, in its transportation to any other country 
 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 upon the point of law at this day " (h). 
 
 Afterwards, in the case of The Vrow Anna Catharina, Sir 
 William Scott laid down the rule, and stated its reason. " It 
 cannot be doubted," said he, "that there are transactions 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 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 particlar transaction, 
 independent of his own personal residence and occupa- 
 tion " (i). 
 
 It was contended that this rule, laid down with so much 
 precision, did not embrace Mr. Bentzon's claim, because he 
 had "not incorporated himself with the permanent interests 
 of the nation." He acquired the property while Santa Cruz 
 
 (h) The Phcenix, 5 0. Rob. 21. 
 
 (i) Tlw Vrow Anna Catharina, 5 C. Rob. 167.
 
 AND ITS IMMEDIATE EFFECTS. 399 
 
 was a Danish colony, and he withdrew from the island when 
 it became British. 
 
 This distinction did 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 general national character. The acquisition of land in 
 Santa Cruz bound the claimant, so far as respects that land, 
 to the fate of Santa Cruz, whatever its destiny might be. 
 While that island belonged to Denmark, the produce of the 
 soil, while unsold, was, according to this rule, Danish pro- 
 perty, whatever might be the general national 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 that par- 
 ticular transaction. Although incorporated, so far as respects 
 his general national character, with the permanent interests 
 of Denmark, he was incorporated, 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. 
 
 2. The case was therefore certainly within the rule as laid 
 down by the British Prize Courts. The next inquiry was, how 
 far that rule will be adopted in this country ? 
 
 The law of nations is the great source from which we derive 339. 
 those rules, respecting belligerent and neutral rights, which A f d P tioa 
 are recognized by all civilized and commercial States through- English 
 out Europe and America. This law is in part unwritten, and ^IneHca 
 in part conventional. To ascertain that which is unwritten, 
 we resort to the great principles of reason and justice: but, as 
 these principles will be differently understood by different 
 nations under different circumstances, we consider them as 
 being, in some degree, 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
 
 400 COMMENCEMENT OF WAR, 
 
 how the law of nations, in the given case, is understood in 
 that country, and will be considered in adopting the rule 
 which is to prevail in this. 
 
 Without taking a comparative view of the justice or fair- 
 ness of the rules established in the British Prize Courts, and 
 of those established in the courts of other nations, there were 
 circumstances not to be excluded from consideration, which 
 give to those rules a claim to our consideration 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 chang- 
 ing it. 
 
 It would not be advanced, in consequence of this former 
 relation between the two countries, that any obvious miscon- 
 struction of public law made by the British Courts, is entitled 
 to more respect than the recent rules of other countries. But 
 a case professing to be decided entirely on ancient principles, 
 will not be entirely disregarded, unless it be very unreasonable, 
 or be founded on a construction rejected by other nations. 
 
 The rule laid down in The Phoenix was said to be a recent 
 rule, because a case solemnly decided before the Lords Com- 
 missioners, in 1783, is quoted in the margin as its authority. 
 But that case was not suggested to have been determined 
 contrary to former practice or former opinions. Nor did the 
 Court perceive any reason for supposing it to be contrary to 
 the rule of other nations in a similar case. 
 
 The opinion that ownership of the soil does, in some degree, 
 connect the owner with the property, so far as respects that 
 soil, was an opinion which certainly prevailed very extensively. 
 It was not an unreasonable opinion. Personal property may 
 follow the person anywhere ; and its character, if found on the 
 ocean, may depend on the domicile 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 was no extravagant perversion of principle, 
 nor was it a violent offence to the course of human opinion to 
 say, that the proprietor, so far as respects his interest in 
 the land, partakes of its character, and that its produce,
 
 AND ITS IMMEDIATE EFFECTS. 401 
 
 while the owner remains unchanged, is subject to the same 
 disabilities (A;). 
 
 So, also, in general, and unless under special circum- 340. 
 stances, the character of ships depends on the national cha- character 
 racter of the owner, as ascertained by his domicile ; but if a of sbi i )S - 
 vessel is navigating under the flag and pass of a foreign 
 country, she is to be considered as bearing the national 
 character of the country under whose flag she sails : she makes 
 a part of its navigation, and is in every respect liable to be 
 considered as a vessel of the country; for ships have a peculiar 
 character impressed upon them by the special nature of their 
 documents, and are always held to the character with which 
 they are so invested, to the exclusion of any claims of interest 
 which persons resident in neutral countries may actually have 
 in them. But where the cargo is laden on board in time of 
 peace, and documented as foreign property in the same 
 manner with the ship, with the view of avoiding alien duties, 
 the sailing under the foreign flag and pass is not held con- 
 clusive as to the cargo. A distinction is made between the 
 ship, which is held bound by the character imposed upon it 
 by the authority of the Government from which all the docu- 
 ments issue, and the goods, whose character has no such 
 dependence upon the authority of the State. In time of war 
 a more strict principle may be necessary ; but where the trans- 
 action takes place in peace, and without any expectation of 
 war, the cargo ought not to be involved in the condemnation 
 of the vessel, which, under these circumstances, is considered 
 as incorporated into the navigation of that country whose flag 
 and pass she bears (I). 
 
 An exceptional case was decided by the French Conseil des Prizes in 340 a. 
 1872, in which a vessel was held not to be concluded as to her national The flag as 
 character by the flag she carried. The Palme was, in 1871, captured e ^ e ^ ce of 
 by a French cruiser, on a voyage from Accra to Bremen. She carried nationality, 
 the German flag, and was therefore primd facie lawful prize. Evidence 
 was produced which showed that The Palme was a German-built vessel ; 
 that in 1866 she was sold to the Societe du Commerce des Missions Pro- 
 testa?ites, a Swiss corporation ; and that she still belonged to the Societe 
 at the time of capture, though she then carried the German flag. It 
 
 (k) Thirty hogsheads of Sugar, Bcntzon, Claimant, 9 Cranch, 191. 
 (I) The Vigilantia, 1 C. Rob.l ; The Vrow Anna Catharina, 5 0. Rob. 
 161; The Success, 1 Dods. Ad. 131. 
 
 D D
 
 402 COMMENCEMENT OF WAR, 
 
 also appeared that the Swiss Federal Council did not permit Swiss 
 subjects to fly the Federal flag, and that France had, in 1854, refused to 
 acknowledge any Swiss maritime flag. Thus, the Societe being com- 
 pelled to sail its ship under some flag, that of Germany had been 
 retained. In order to do this, the ship was nominally assigned to an 
 agent of the Societe at Bremen, while the real owners were the Societe 
 itself. Under these circumstances, the vessel being in reality owned by 
 Swiss, and consequently neutral subjects, the Conseil des Prizes held 
 that she was not a German vessel, and therefore restored her to the 
 owners, reversing the decree of the Court below (m). 
 
 340b. By the law of England, no ship shall be deemed to be a British ship 
 Ownership unless she belongs wholly to owners of the following description : 1. 
 V ^ Natural born British subjects. 2. Persons made denizens or naturalized, 
 by letters of denization, or by act of Parliament, or the proper authority 
 in any British possession. 3. Bodies corporate established under, and sub- 
 ject to the laws of, and having their principal place of business in the 
 United Kingdom or some British possession (ri). If any person uses the 
 British flag and assumes the British national character on board any ship 
 owned in whole or in part by any persons not entitled by law to own 
 British ships, for the purpose of making such ship appear to be a British 
 ship, such ship shall be forfeited to Her Majesty, unless such assumption 
 has been made for the purpose of escaping capture by an enemy, or by a 
 foreign ship of war in exercise of some belligerent right ; and in any 
 proceeding for enforcing any such forfeiture, the burden of proving a 
 title to use the British flag and assume the British national character 
 shall lie upon the person using and assuming the same (o). When a 
 ship has become forfeited for such an offence, she may be seized by the 
 Crown whenever she returns within British jurisdiction, and even if 
 transferred to a bond fide purchaser (p). 
 
 341. We have already seen that no commercial intercourse can 
 underlie ^e lawfully carried on between the subjects of States at war 
 enemy's w jth each other, except by the special permission of their 
 
 license. f - , 7 -, 
 
 respective governments. As such intercourse can only be 
 legalized in the subjects of one belligerent State by a license 
 from their own government, it is evident that the use of such 
 a license from the enemy must be illegal unless authorized 
 by their own government ; for it is the sovereign power of 
 the State alone which is competent to act on the considera- 
 tions of policy by which such an exception from the ordinary 
 consequences of war must be controlled. And this principle 
 
 (m) [Dalloz, Jurisprudence Generale, Pt. III. p. 94 (14 espece).] 
 
 () [17 & 18 Viet. c. 104, s. 18; and see Boyd, The Merchant Shipping 
 Laws, p. 14.] 
 
 (o) [17 & 18 Viet. c. 104, a. 103 (1); and see Ib., p. 94. B. v. Seberg, 
 L. R. 1 C. C. R. 264.] 
 
 (p) [The Annandole, 2 P. D. 218.]
 
 AND ITS IMMEDIATE EFFECTS. 403 
 
 is applicable not only to a license protecting a direct commer- 
 cial intercourse with the enemy, but to a voyage to a country 
 in alliance with the enemy, or even to a neutral port ; for the 
 very act of purchasing or procuring the license from the enemy 
 is an intercourse with him prohibited by the laws of war : and 
 even supposing it to be gratuitously issued, it must be for 
 the special purpose of furthering the enemy's interests, by 
 securing supplies necessary to prosecute the war, to which 
 the subjects of the belligerent State have no right to lend 
 their aid, by sailing under these documents of protection (q). 
 
 (q) The Julia, 8 Cranch, 181; The Aurora, Ib. 203; The Ariadne, 2 
 Wheaton, 143; The Caledonia, 4 Wheaton, 100. 
 
 D D 2
 
 CHAPTER II. 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 342. IN general it may be stated, that the rights of war, in 
 waf^ainst res P ec ^ * * ne enemy, are to be measured by the object of 
 an enemy, the war. Until that object is attained, the belligerent has, 
 strictly speaking, a right to use every means necessary to 
 accomplish the end for which he has taken up arms. We 
 have already seen that the practice of the 'ancient world, and 
 even the opinion of some modern writers on public law, made 
 no distinction as to the means to be employed for this pur- 
 pose. Even such institutional writers as Bynkershoek and 
 Wolf, who lived in the most learned and not least civilized 
 countries of Europe, at the commencement of the eighteenth 
 century, assert the broad principle, that everything done 
 against an enemy is lawful ; that he may be destroyed, 
 though unarmed and defenceless ; that fraud, and even 
 poison, may be employed against him ; and that an unli- 
 mited right is acquired by the victor to his person and pro- 
 perty. Such, however, was not the sentiment and practice of 
 enlightened Europe at the period when they wrote, since 
 Grotius had long before inculcated milder and more humane 
 principles, which Vattel subsequently enforced and illustrated, 
 and which are adopted by the unanimous concurrence of all 
 the public jurists of the present age (a). 
 
 343. The law of nature has not precisely determined how far an 
 thoughts individual is allowed to make use of force, either to defend 
 of war himself against an attempted injury, or to obtain reparation 
 person of * when refused by the aggressor, or to bring an offender to 
 an enemy, punishment. We can only collect, from this law, the general 
 
 (a) Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 1. Wolfius, Jus. Gent. 
 878. Grotius, de Jur. Bel. ac. Pac. lib. iii. cap. 4, 57. Vattel, Droit 
 des Gens, lir. iii. ch. 8.
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 405 
 
 rule, that such use of force as is necessary for obtaining these 
 ends is not forbidden. The same principle applies to the 
 conduct of sovereign States existing in a state of natural inde- 
 pendence with respect to each other. No use of force is lawful, 
 except so far as it is necessary. A belligerent has, therefore, 
 no right to take away the lives of those subjects of the enemy 
 whom he can subdue by any other means. Those who are 
 actually in arms, and continue to resist, may be lawfully 
 killed ; but the inhabitants of the enemy's country who are 
 not in arms, or who, being in arms, submit and surrender 
 themselves, may not be slain, because their destruction is not 
 necessary for obtaining the just ends of war. Those ends 
 may be accomplished by making prisoners of those who are 
 taken in arms, or compelling them to give security that they 
 will not bear arms against the victor for a limited period, or 
 during the continuance of the war. The killing of prisoners 
 can only be justifiable in those extreme cases where resistance 
 on their part, or on the part of others who come to their 
 rescue, renders it impossible to keep them. Both reason and 
 general opinion concur in showing that nothing but the 
 strongest necessity will justify such an act (b). 
 
 From the immense armies at present maintained by most European 343 a. 
 States, there seems to be little prospect of their resorting to anything Tendency 
 but hostilities for the settlement of their differences. But there is a a rf a ^ in 
 very wide-spread desire to alleviate the horrors of war as much as possi- 
 ble, and to confine its operation to disabling the enemy without iniiict- 
 ing unnecessary suffering upon him. Civilization has a double effect 
 upon war. It tends to make men more humane, but it also enables 
 them to devise more tenable engines of destruction. The result is that 
 while civilized nations are continually adopting more and more terrible 
 weapons for defending themselves or attacking others, such as torpedoes, 
 &c., they are at the same time endeavouring to establish rules of inter- 
 national law which shall make the use of their weapons as consistent 
 with humanity as the nature of things will permit. This is illustrated 
 by two well-known conventions of recent times. 
 
 In 1864 Switzerland, Belgium, Denmark, Spain, France, Italy, the 343b. 
 Netherlands, Portugal, Prussia, and most of the German States, entered ^e Ge 
 into an agreement, known as the Geneva Convention, for ameliorating 
 the condition of the wounded in war. Austria, England, Greece, Persia, 
 Kussia, Sweden and Norway, Turkey, and the other German States, 
 subsequently acceded to it. The terms of the Convention are as follows. 
 
 1. Ambulances and military hospitals shall be acknowledged to be 
 
 neva 
 
 
 (b) Eutherforth's lust., b. ii. ch. D, 15. [Seeywrt, 411i-.J
 
 406 EIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 neuter, and, as such, shall be protected and respected by belligerents so 
 long as any sick or wounded may be therein. Such neutrality shall 
 cease if the ambulances or hospitals should be held by a military force. 
 
 II. Persons employed in hospitals and ambulances, comprising the 
 staff for superintendence, medical service, administration, transport of 
 wounded, as well as chaplains, shall participate in the benefit of neu- 
 trality while so employed, and so long as there remain any wounded to 
 bring in or succour. 
 
 III. The persons designated in the preceding article may, even after 
 occupation by the enemy, continue to fulfil their duties in the hospital 
 or ambulance which they serve, or may withdraw in order to rejoin the 
 corps to which they belong. Under such circumstances, when those 
 persons shall cease from their functions, they shall be delivered by the 
 occupying army to the outposts of the enemy. 
 
 IV. As the equipment of military hospitals remains subject to the 
 laws of war, persons attached to such hospitals cannot, in withdrawing, 
 carry away any articles but such as are their private property. Under 
 the same circumstances an ambulance shall, on the contrary, retain its 
 equipment. 
 
 V. Inhabitants of the country who may bring help to the wounded 
 shall be respected and shall remain free. The generals of the belligerent 
 powers shall make it their care to inform the inhabitants of the appeal 
 addressed to their humanity, and of the neutrality which will be the 
 consequence of it. Any wounded men entertained and taken care of 
 in a house, shall be considered as a protection thereto. Any inhabitant 
 who shall have entertained wounded men in his house shall be exemptel 
 from the quartering of troops, as well as from a part of the contributions 
 of war which may be imposed. 
 
 VI. Wounded or sick soldiers shall be entertained and taken care of, to 
 whatever nation they may belong. Commanders-in-chief shall have the 
 power to deliver immediately to the outposts of the enemy, soldiers who 
 have been wounded in an engagement when circumstances permit this 
 to be done, and with the consent of both parties. Those who are recog- 
 nised, after their wounds are healed, as incapable of serving, shall be 
 sent back to their country. The others may also be sent back on con- 
 dition of not again bearing arms during the continuance of the war. 
 Evacuations, together with the persons under whose directions they take 
 place, shall be protected by an absolute neutrality. 
 
 VII. A distinctive and uniform flag shall be adopted for hospitals, 
 ambulances, and evacuations. It must on every occasion be accompanied 
 by the national flag. An arm-badge (brassard) shall also be allowed for 
 individuals neutralised, but the delivery thereof shall be left to military 
 authority. The flag and arm-badge shall bear a red cross on a white 
 ground (c). 
 
 This Convention has very materially improved the condition of sick 
 and wounded soldiers, and its terms have been observed in all subse- 
 quent European wars except in that now being carried 011 in Turkey. 
 Ambulances were established for both the Russian and Turkish armies, 
 
 (c) [Hertslet, Map of Europe by Treaty, vol. iii. p. 1624.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 40? 
 
 the latter being distinguished by a red crescent instead of a red cross, but 
 tin- reported violations of the Convention by the Turks caused Germany 
 to address a remonstrance to the Sublime Porte. 
 
 The other international compact is known as the St. Petersburg jj*"* 
 Declaration, and prohibits the use of explosive bullets under the weight Peters .' 
 of 400 grammes during war. It was entered into between Great Britain, b lirg De- 
 Austria, Bavaria, Belgium, Denmark, France, Greece, Italy, the Nether- claration. 
 lands, Persia, Portugal, Prussia and the North German Confederation, / jf^JT 
 Russia, Sweden and Norway, Switzerland, Turkey and Wurtemburg. 
 The Declaration states that considering that the progress of civilization 
 should have the effect of alleviating as much as possible the calamities 
 of war ; 
 
 That the only legitimate object which States should endeavour to 
 accomplish during war is to weaken the military forces of the enemy ; 
 
 That for this purpose it is sufficient to disable the greatest possible 
 number of men ; 
 
 That this object would be exceeded by the employment of arms which 
 uselessly aggravate the sufferings of disabled men, or render their death 
 inevitable ; 
 
 That the employment of such arms would, therefore, be contrary to 
 the laws of humanity ; 
 
 The Contracting Parties engage mutually to renounce, in case of war 
 among themselves, the employment by their military or naval troops of 
 any projectile of a weight below 400 grammes, which is either explosive 
 or charged with fulminating or inflammable substances ; 
 
 They will invite all the States which have not taken part in the 
 deliberations of the International Military Commission assembled at 
 St. Petersburg, by sending delegates thereto, to accede to the present 
 engagement. 
 
 This engagement is obligatory only upon the Contracting or Acceding 
 Parties thereto, in case of war between two or more of themselves : it is 
 not applicable with regard to non-Contracting Parties, or Parties who 
 shall not have acceded to it : 
 
 It will also cease to be obligatory from the moment when, in a war 
 between Contracting or Acceding Parties, a non-Contracting Party, or a 
 non- Acceding Party shall join one of the belligerents ; 
 
 The Contracting or Acceding Parties reserve to themselves to come 
 hereafter to an understanding, whenever a precise proposition shall be 
 drawn up in view of future improvements which science may effect in 
 the armament of troops, in order to maintain the principles which they 
 have established, and to conciliate the necessities of war with the laws of 
 humanity ((/). 
 
 According to the law of war, as still practised by savage 344. 
 nations, prisoners taken in war are put to death. Among the f X p,.^"ners 
 more polished nations of antiquity, this practice gradually of war - 
 gave way to that of making slaves of them. For this, again, 
 
 (d) [Hertslet, Map of Europe by Treaty, vol. iii. p. I860.]
 
 408 EIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 was substituted that of ransoming, which continued through 
 the feudal wars of the middle age. The present usage of 
 exchanging prisoners was not firmly established in Europe 
 until some time in the course of the seventeenth century. 
 Even now, this usage is not obligatory among nations who 
 choose to insist upon a ransom for the prisoners taken by 
 them, or to leave their own countrymen in the enemy's hands 
 until the termination of the war. Cartels for the mutual ex- 
 change of prisoners of war are regulated by special convention 
 between the belligerent States, according to their respective 
 interests and views of policy. Sometimes prisoners of war are 
 permitted, by capitulation, to return to their own country, 
 upon condition not to serve again during the war, or until 
 duly exchanged; and officers are frequently released upon 
 their parole, subject to the same condition. Good faith and 
 humanity ought to preside over the execution of these com- 
 pacts, which are designed to mitigate the evils of war, with- 
 out defeating its legitimate purposes. By the modern usage 
 of nations, commissaries are permitted to reside in the respec- 
 tive belligerent countries, to negotiate and carry into effect the 
 arrangements necessary for this object. Breach of good faith 
 in these transactions can be punished only by withholding 
 from the party guilty of such violation the advantages stipu- 
 lated by the cartel ; or, in cases which may be supposed to 
 warrant such a resort, by reprisals or vindictive retaliation (e). 
 
 344 a. Sir Robert Phillimore enumerates the following classes of persons as 
 Persons having no claim to the treatment of prisoners of war : 
 to bTtreat- 1- Bands of marauders, acting without the authority of the sovereign, 
 ed as or the order of the military commander, a class which, of course, does 
 
 prisoners no t include volunteer corps permitted to attach, themselves to the army, 
 o war. an( j un( j er ne command of the general of the army. 
 
 2. Deserters, captured among the enemy's troops. 
 
 3. Spies, even if they belong to the regular army (/). 
 
 The laws of war justify the execution of spies when found by a com- 
 mander within the lines of his army, or giving information of his plans 
 
 (e) Grotius, de Jur. Bel. ac Pac. lib. Hi. cap. 7, 8, 9; cap. 11, 913. 
 Vattel, Droit des Gens, liv. iii. ch. 8, 153. C. Robinson's Adm. Rep. vol. iii. 
 Note, Appendix A. Correspondence between M. Otto, French Commissary 
 of Prisoners in England, and the British Transport Board, 1801. Annual 
 Register, vol. xliv. p. 265. (State Papers.) Wheaton's Hist. Law of Nations, 
 pp. 162164. [Seejrod, tflh.] 
 
 (/) [Phillimore, vol. iii. xcvi. p. 164. See also Field, International Code, 
 802.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 409 
 
 and movements to the enemy. Deserters found in the enemy's ranks 
 may be treated in whatever manner the municipal laws of their country 
 ordain. The penalty is not unfrequeutly capital punishment (cj}. The 
 employment of bands of marauders or savages, even though acknow- 
 ledged by the sovereign, cannot be too strongly denounced, and justifies 
 the other side in treating such auxiliaries with great severity when they 
 are captured. The melancholy effects of using such allies have re- 
 peatedly been seen during the present Eusso-Turkish war. The atroci- 
 ties committed by Cossacks and Bulgarians in the service of Russia, and 
 by Circassians and Bashi-Bazouks in that of Turkey, have fixed an 
 indelible stain on the whole war. 
 
 A question arose during the Franco-German war as to what treatment 344 b. 
 persons should receive who ascended in balloons in order to reconnoitre Persons in 
 the enemy's forces. Those who were captured by the Germans were a 
 imprisoned in fortresses, and brought to trial before a council of war. 
 M. Calvo and Sir R. Phillimore consider that they ought to be treated as 
 prisoners of war (h). They certainly do not deserve to be condemned as 
 spies, but the disadvantage under which a general labours, whose move- 
 ments can be surveyed from a balloon, justifies his threatening to treat 
 aeronauts severely if they fall into his hands, in order to deter any one 
 from undertaking the task. 
 
 All the members of the enemy State may lawfully be treated 345. 
 as enemies in a public war ; but it does not therefore follow, cxem pt 
 that all these enemies may be lawfully treated alike ; though fl ' om a ? ts 
 we may lawfully destroy some of them, it does not therefore 
 follow, that we may lawfully destroy all. For the general 
 rule, derived from the natural law, is still the same, that no 
 use of force against an enemy is lawful, unless it is necessary 
 to accomplish the purposes of war. The custom of civilized 
 nations, founded upon this principle, has therefore exempted 
 the persons of the sovereign and his family, the members of 
 the civil government, women and children, cultivators of the 
 earth, artisans, labourers, merchants, men of science and 
 letters, and, generally, all other public or private individuals 
 engaged in the ordinary civil pursuits of life, from the direct 
 effect of military operations, unless actually taken in arms, or 
 guilty of some misconduct in violation of the usages of war, 
 by which they forfeit their immunity (i). 
 
 The application of the same principle has also limited and ^ 34 ^ 
 
 (fl) [Calvo, ii. 858, p. 142.] 
 
 (h) [Calvo, ii. 857, p. 142. Phillimore, iii. 97, p. 164.] 
 
 (i) Kutherforth's Inst., b. ii. ch. 9, 15. Vattcl, Droit ties Gens, liv. iii. 
 
 ch. 8, 145147, 159. Kluber, Droit des Gens Moderne de 1' Europe, 1't. 
 
 II. tit. 2, sect. 2, ch. 1, 245247.
 
 410 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 hoT?/' restrame d the operations of war against the territory and 
 subject to other property of the enemy. From the moment one State is 
 and con- a ^ war w ^ n another, it has, on general principles, a right to 
 fiscation. seize on all the enemy's property, of whatsoever kind and 
 wheresoever found, and to appropriate the property thus taken 
 to its own use, or to that of the captors. By the ancient law 
 of nations, even what were called res sacrte were not exempt 
 from capture and confiscation. Cicero has conveyed this idea 
 in his expressive metaphorical language, in the Fourth Oration 
 against Verres, where he says that " Victory made all the 
 sacred things of the Syracusans profane." But by the 
 modern usage of nations, which has now acquired the force 
 of law, temples of religion, public edifices devoted to civil 
 purposes only, monuments of art, and repositories of science, 
 are exempted from the general operations of war. Private 
 property on land is also exempt from confiscation, with the 
 exception of such as may become booty in special cases, when 
 taken from enemies in the field or in besieged towns, and of 
 military contributions levied upon the inhabitants of the 
 hostile territory. This exemption extends even to the case 
 of an absolute and unqualified conquest of the enemy's coun- 
 try. In ancient times, both the moveable and immoveable 
 property of the vanquished passed to the conqueror. Such 
 was the Roman law of war, often asserted with unrelenting 
 severity ; and such was the fate of the Roman provinces sub- 
 dued by the northern barbarians, on the decline and fall of 
 the western empire. A large portion, from one-third to two- 
 thirds, of the lands belonging to the vanquished provincials, 
 was confiscated and partitioned among their conquerors. The 
 last example in Europe of such a conquest was that of Eng- 
 land, by William of Normandy. Since that period, among 
 the civilized nations of Christendom, conquest, even when 
 confirmed by a treaty of peace, has been followed by no 
 general or partial transmutation of landed property. The 
 property belonging to the government of the vanquished 
 nation passes to the victorious State, which also takes the 
 place of the former sovereign, in respect to the eminent 
 domain. In other respects, private rights are unaffected by 
 conquest (I). 
 
 (1) Vattel, Droit des Gens, liv. iii. oh. 9, 13. Kluber, Droit des Gens
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 411 
 
 The modern practice of nations has firmly established the general rule 346a. 
 of exempting private property from confiscation (m). But this rule is 
 subject to certain limitations. General Halleck, who has 'treated this 
 subject very fully, gives three exceptions (1) confiscations or seizures laud, 
 by way of penalty for military offences ; (2) forced contributions for 
 the support of the invading armies, or as an indemnity for the expenses 
 of maintaining order and affording protection to the conquered inhabi- 
 tants ; and (3) property taken on the field of battle, or in storming 
 a fortress or town (n). Private property is exempt from the operations 
 of war only so long as its owners obey the laws of war. An invader 
 protects non-combatants and their property as long as they take no part 
 in the struggle. As soon as they relinquish this character, the reasons 
 which restrained the invader cease, and he may then punish such 
 individuals by seizing their property, or if this cannot be discovered 
 and secured, their offence may be visited upon the community to which 
 they belong (o). Forced contributions for the support of the invading 
 army should only be resorted to in cases of necessity (p). If a general 
 is not provided with the necessaries for an army by his own government, 
 he must of course obtain them from the invaded provinces. These 
 should, however, be paid for either out of the invader's own funds, or 
 by money collected from the whole district, so that the actual individuals 
 to whom the necessaries belong should not suffer more than the rest of 
 the community. Napoleon attributed his losses in the Peninsular in a 
 great measure to the bitter feeling created among the Spaniards by his 
 forced requisitions and pillage for the supply of his army (q). 
 
 Private property found on the field of battle belongs to the conqueror, 
 and so does that which is taken at the sack of a town, but a general 
 cannot be too careful in repressing pillage in the latter case. It, however, 
 iinfortunately often happens that military discipline is relaxed after an 
 assault, and the general is unable to restrain his soldiers from plundering 
 private houses. The plunder of the Emperor of China's summer palace 
 by the troops of France and England in the last war against China, 
 shows that the most civilized nations do not, even now, invariably 
 restrain their troops from pillaging private property. The palace, it is 
 true, belonged to the Emperor, but the private property of a sovereign 
 ought to be just as exempt from the effects of war as that of any of his 
 subjects (r). 
 
 There is yet another case when private property may be seized. If it 346b. 
 be such that it ministers directly to the strength of the enemy, and its Seizure of 
 possession alone enables him to supply himself with the munitions of . 
 war, and to continue the struggle, it may then be confiscated. Thus 
 
 Modeme de 1'Europe, Pt. II. tit. 2, sect. 2, ch. 1, 250253. Martens. 
 Precis, &c., liv. viii. ch. iv. 279282. 
 
 (m) [Field, Int. Code, ch. Ixiv. p. 526. Bluntschli, Droit Int. Codifie, 
 651.] 
 
 (n) [Halleck, ch. xix. 13, p. 457.] 
 
 (o) [Ibid., p. 458.] 
 
 (p) [See Mitchell v. Harmony, 13 Howard, 134, as to sei/ing goods in the 
 enemy's country belonging to a subject of the seizor's own state.] 
 
 (q) [Calvo, ii. 902. Napier, Peninsular War, b. 24, ch. 6.] 
 
 (r) [Calvo, ii. 897. Halleck, ch. xix. 12.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 during the American civil war cotton was the mainstay of the (Jon- 
 federates ; without it they could not have continued the rebellion. The 
 Supreme Court therefore decided that it could lawfully be captured by 
 the Federal troops, notwithstanding that it was strictly private pro- 
 perty (s). "The whole doctrine of confiscation," said the Supreme 
 Court in a recent case, "is built upon the foundation that it is an 
 instrument of coercion, which, by depriving an enemy of property 
 within reach of his power, whether within his territory or without, 
 impairs his ability to resist the confiscating government, while at the 
 same time it furnishes to that government means for carrying on the 
 war. Hence any property which the enemy can use, either by actual 
 appropriation or by the exercise of control over its owner, or which the 
 adherents of the enemy have the power of devoting to the enemy's use, 
 is a proper subject of confiscation " (t). 
 
 In France the power of directing the seizure of an enemy's property 
 on land is held to belong exclusively to the legislature. No other 
 authority can legally authorize such a course (u). 
 
 S 346 c When a district or province has fallen into the hands of an enemy, 
 Effects of the political status of the inhabitants is changed. The sovereignty of 
 military their former government is suspended, and their allegiance to it is, for 
 occupation. ^ Q time being, dissolved. During the occupation they become subject 
 to such laws as the conqueror may choose to impose. No other laws 
 can in the nature of things be obligatory upon them, for where there is 
 no protection or sovereignty, there can be no claim to obedience (x). 
 The inhabitants, however, cannot be required to take up arms against 
 their own country. At the same time their private rights, their relations 
 to each other, unless specially altered by the conqueror, remain the 
 same (y). Firm military occupation transfers all the rights of the dis- 
 placed sovereignty to the victor, and he may therefore use the public 
 property of the former as he thinks tit, and may appropriate to himself 
 the rents and taxes due to it. But this is only the case so long as the 
 occupation lasts ; as soon as the district is lost, the rights of military 
 occupation over it are also lost (z). If the district is retaken by its 
 original sovereign, it reverts to the same state it was in before it was 
 lost (a}. The effects of military occupation are different with regard to 
 moveable and to immoveable property. It gives the conqueror the right 
 to acquire a complete title to moveables, and to transfer them to any one 
 he pleases, but it only gives him a qualified right over immoveables. 
 He may use real property as he pleases during his occupation, but if 
 he sells it, the purchaser takes it at the risk of being evicted by the 
 original owner. It is only on the conclusion of peace that the invader's 
 
 (s) [Mrs. Alexanders cotton, 2 Wallace, 420 ; U. S. v. Paddford, 9 Wal- 
 lace, 540; Huycraft v. U. S. 22 Wallace, 93.] 
 
 t) [Miller v. U. S., 11 Wallace, 306.] 
 
 (u) [Dalloz, Jurisp. General, 1872, Pt. III. pp. 94, 95.] 
 
 (x) [U. S. v. Hayward, 2 Gallison, 502.] 
 
 (y) [The Fama, 5 C. Rob. 106 ; U. S. v. Percheman, 7 Peters, 86 ; Lcitens- 
 dorfer v. Webb, 20 Howard, 176 ; U. S. v. Moreno, 1 Wallace, 531.] 
 
 iz) [Halleck, ch. xxxii. 4. U. S. v. Rice, 4 Wlieaton, 246 ; Fleming v. 
 Page, 9 Howard, 614.] 
 
 (a) [Gumbe's case, 2 Knapp, P. C. 369.]
 
 RIGHTS OF WAR AS. BETWEEN ENEMIES. 413 
 
 rights over such property become fixed (ft). Military occupation must he 
 distinguished from complete conquest. The former is only a temporary 
 state, lasting during the war, the latter is permanent, and its conditions 
 are provided for in the treaty of peace. The Supreme Court of the 
 United States has decided that when a portion of the American Union 
 is occupied by a public enemy, that portion is to be deemed a foreign 
 country so far as respects revenue laws, and that goods imported into it 
 are not imported into the Union (c). On the other hand, when the 
 forces of the Union occupy a foreign territory, such territory comes 
 under the sovereignty of the Union, but does not become part of the 
 United States, although foreign nations are bound to regard it as such. 
 It is to be governed by military law, as regulated by public law. This 
 results from the President having power to make war, and subject the 
 enemy's country, but only in a military sense.' He has no power to 
 enlarge the boundaries of the Union. This can only be done by Con- 
 gress, the treaty making power (rf). According to British law, an 
 occupied territory becomes ipso facto a part of the British dominions (e). 
 
 Martial law has been denned to be, the will of the commanding officer 345 d. 
 of an armed force, or of a geographical military department, expressed Martial 
 in time of war within the limits of his military jurisdiction, as necessity ^ nd "^' 
 demands and prudence dictates, restrained or enlarged by the orders of ary 
 his military chief or supreme executive ruler (/). Military law is the 
 rules and regulations made by the legislative power of the State for the 
 government of its naval or military forces. The military law of England 
 is chiefly contained in the Mutiny Acts and the Articles of War (g) n 
 Military law exists equally in time of peace as in time of war ; it is 
 quite distinct from martial law (h). The laws of war (when that expres- 
 sion is not used as a generic term) are the laws which govern the conduct 
 of belligerents towards each other and other nations, flagarante bello (i). 
 Military government is the government imposed by a successful bel- 
 ligerent, either over a foreign province or over a district retaken from 
 insurgents, treated as belligerents. This supersedes, as far as may be 
 deemed expedient, the local law, and continues until the war or rebellion 
 is terminated, and a regular civil authority is instituted (&). 
 
 Martial law is founded on paramount necessity. It is the will of the 346 e. 
 commander of the forces. In the proper sense it is not law at all (I). Martial law 
 It is merely a cessation from necessity of all municipal law, and what 1S only 
 
 (6) [Halleck, ch. xix. 4. See also post, 398 and 411 c.] 
 
 (c) [U. S. v. Rice, 4 Curtis, 391.] 
 
 (d) [Fleming v. Page, 9 Howard, 615. See on this subject Whiting, War 
 Powers of the President under the United States Constitution (43rd ed.).] 
 
 (e) [Halleck, ch. xxxii. 7. See, as to cession of territory, arguments in 
 Damodhar Gordhcm v. Deoram Kanzi, 1 App. Gas. 353.] 
 
 (/) [Ex parte Milligan, 4 Wallace, 14 (argument). Hansard, Parl. Deb. 
 (3rd series), vol. xcv. p. 80. Opinions of Atty's-Gen. (U. S.) vol. viii. p. 
 367.] 
 
 (g) [Wolfe Tone's case, 27 State Trials, 615; Wolton v. Gavin, 16 Q. B. 61.] 
 
 (h) [Kent, Commentaries, vol. i. (12th ed.) p. 341, note (a).] 
 
 (i) [Argument in Ex parte, Milligan, 4 Wallace, 14.] 
 
 (k) [Ibid., pp. 141, 142.] 
 
 (I) [Speech of Duke of Wellington, 1st April, 1851. Field, International 
 Code (2nd ed.), p. 478.]
 
 414 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 justified by necessity requires it justifies (m). Under it, a man in actual armed 
 necessity. res istance may be put to death on the spot by anyone acting under the 
 orders of competent authority ; or, if arrested, may be tried in any 
 manner which such authority shall direct. But if there be an abuse of 
 the power so given, and acts are done under it, not bond fide to suppress 
 rebellion and in self-defence, but to gratify malice or in the caprice of 
 tyranny, then for such acts the party doing them is responsible (?(). 
 Opinion of Sir James Mackintosh has said on this subject, " The only principle on 
 Sir James which the law of England tolerates what is called 'martial law' is 
 Mackin- necessity. Its introduction can be justified only by necessity ; its con- 
 tinuance requires precisely the same justification of necessity ; and if 
 it survives the necessity, in which alone it rests, for a single minute, it 
 becomes instantly a mere exercise of lawless violence. When foreign 
 invasion or civil war renders it impossible for courts of law to sit, or to 
 enforce the execution of their judgments, it becomes necessary to find 
 some rude substitute for them, and to employ for that purpose the 
 military, which is the only remaining force in the community. 
 
 " While the laws are silenced by the noise of arms, the rulers of the 
 armed force must punish as eqiiitably as they can those crimes which 
 threaten their own safety and that of society, but no longer ; every 
 moment beyond is usurpation. As soon as the laws can act, every 
 other mode of punishing supposed crimes is itself an enormous crime. 
 If argument be not enough on this subject if, indeed, the mere state- 
 ment be not the evidence of its own truth I appeal to the highest and 
 most venerable authority known to our law. ; ' 
 
 He then quotes Sir Matthew Hale, and cites the case of the Duke of 
 Lancaster, who was executed when taken prisoner at the battle of 
 Borough bridge, 1322 (o), and proceeds : 
 
 " No other doctrine has ever been maintained in this country since 
 the solemn parliamentary condemnation of the usurpation of Charles T. 
 which he was himself compelled to sanction in the Petition of 
 Right "(p). 
 
 If in foreign invasion or civil war, the courts of law are actually 
 closed, and it is then impossible to administer criminal j ustice according 
 to law, then, on the theatre of actual military operations, where war 
 really prevails, there is a necessity to furnish a substitute for the civil 
 authority, thus overthrown, to preserve the safety of the army and 
 society ; as no power is left but the military, it is allowed to govern by 
 martial rule until the laws can have their free course. As necessity 
 creates the rule, so it limits its duration ; for, if this government is 
 continued after the courts are reinstated, it is a gross usurpation of 
 power. Martial rule ought to never exist where the courts are open, and 
 in the proper and unobstructed exercise of their jurisdiction. It should 
 also be confined to the locality of actual war or insurrection (q). 
 
 (TO) [Forsyth, Cases and Opinions on Constitutional Law, p. 201.] 
 (n) [Ibid., p. 214. Finlason, on Martial Law (London, 1867).] 
 (o) [Hale, Pleas of the Crown, pp. 499, 500. Hume, Hist, of England, 
 vol. i. p. 159.] 
 
 (p) [Mackintosh's Miscellaneous Works, p. 734, London, 1851.] 
 
 (q) \_Exparte Milligan, 4 Wallace, 127. See also Smith v Shaw, 12 John-
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 415 
 
 In October, 1864, during the civil war, Lambdin P. Milligan, a 346 f. 
 citizen of the United State^ and an inhabitant of Indiana, was arrested, Martial law 
 while at home, by order of the Federal general commanding the military American 
 distrit t of Indiana. Though not a military person, he was sent to civil war. 
 Indianapolis, and brought before a military commission sitting there, Milligan s 
 tried on certain charges of conspiring against the government, found case ' 
 guilty, and sentenced to be hanged. The question, which was brought 
 before the Supreme Court, was whether the military commission had 
 jurisdiction legally to try and sentence him. In Indiana the Federal 
 authority was not opposed by force, and its courts were always open to 
 hear criminal accusations and redress grievances. But a powerful secret 
 association, which plotted insurrection and armed co-operation with the 
 rebels, existed in the State. On the question as to whether, under such 
 circumstances, Congress had power to appoint a military commission to 
 try and condemn citizens, not being military persons that is, whether 
 martial law could be proclaimed the judges of the Supreme Court 
 differed. But they were unanimous in holding that, as this power had 
 not been distinctly exercised, Milligan being a citizen not connected with 
 the military service, could not be tried, convicted, and sentenced other- 
 wise than by the ordinary courts of law (r). 
 
 A somewhat similar case was decided in France in 1832. A royal 346 g. 
 order, dated the 6th of June, 1832, had put Paris in a state of siege, and Martial 
 under it military commissions were appointed, which tried and convicted p,^^ e 
 several persons. One, Geoffrey, was declared guilty of an attack with Geoffroys 
 intent to subvert the government, and was condemned to death. He case. 
 appealed to the Court of Cassation. This Court held that Geoffrey not 
 being a military person, or subject to military authority, the military 
 commission had no jurisdiction over him, and its sentence was ac- 
 cordingly annulled (s) . Martial law has on several occasions been pro- In England. 
 claimed in Ireland and in some of the British colonies for the suppres- 
 sion of disturbances. But it has not been put in force in England 
 against civilians (t}. 
 
 The exceptions to these general mitigations of the extreme 347. 
 rights of war, considered as a contest of force, all grow out of thcTene g 
 the same original principle of natural law, which authorizes m y' s terri - 
 us to use against an enemy such a degree of violence, and tarfoL "" 
 such only, as may be necessary to secure the object of hostili- 
 ties. The same general rule, which determines how far it is 
 
 son, 257; McCmnell v. Hampden, Ibid., 234; Lutlier v. Borden, 7 Howard, 
 42.1 
 
 (r) [Ex parte Milligan, 4 Wallace, 5142.] 
 
 (s) [Forsyth, Cases and Opinions, p. 483. See on this subject Mr. Field's 
 argument in McCardalo's case, Ibid., p. 491. And his argument in Milligan's 
 case, published separately, with an appendix (New York, 1866); also in 4 
 Wallace, 4. Phillipps v. Eyre, L. R. 6 Q. B. 1. Law Magazine, Nov. 1861, 
 p. 170.] 
 
 (t) [Forsyth, Cases and Opinions, p. 212. Sir A. Cockburn's charge to the 
 grand jury in R. v. Eyre. The Law Magazine, Nov. 1861, p. 171.]
 
 416 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 lawful to destroy the persons of enemies, will serve as a guide 
 in judging how far it is lawful to ravage or lay waste their 
 country. If this be necessary, in order to accomplish the 
 just ends of war, it may be lawfully done, but not otherwise.. 
 Thus, if the progress of an enemy cannot be stopped, nor our 
 own frontier secured, or if the approaches to a town intended 
 to be attacked cannot be made without laying waste the inter- 
 mediate territory, the extreme case may justify a resort to 
 measures not warranted by the ordinary purposes of war. If 
 modern usage has sanctioned any other exceptions, they will 
 be found in the right of reprisals, or vindictive retaliation. 
 The whole international code is founded upon reciprocity. 
 The rules it prescribes are observed by one nation, in confi- 
 dence that they will be so by others. Where, then, the 
 established usages of war are violated by an enemy, and there 
 are no other means of restraining his excesses, retaliation may 
 justly be resorted to by the suffering nation, in order to 
 compel the enemy to return to the observance of the law which 
 he has violated (u). 
 
 348 The last war between the United States and Great Britain 
 
 Discus- was marked by a series of destructive measures on the part of 
 
 tween the the latter, directed against both persons and property hitherto 
 
 A e . a ? deemed exempt from hostilities by the general usage of 
 
 govern- civilized nations. These measures were attempted to be justi- 
 
 tMssub^ 0n fi e( *' as acts f retaliation f r similar excesses on the part of 
 
 jec-t. the American forces on the frontiers of Canada, in a letter 
 
 addressed to Mr. Secretary Monroe, by Admiral Cochrane, 
 
 commanding the British naval forces on the North American 
 
 station, dated on board his flagship in the Patuxent river, on 
 
 the 18th of August, 1814. In this communication it was 
 
 stated that the British admiral, having been called upon by 
 
 the governor-general of the Canadas to aid him in carrying 
 
 into effect measures of retaliation against the inhabitants of 
 
 the United States, for the wanton destruction committed by 
 
 their army in Upper Canada, it had become the duty of the 
 
 admiral to issue to the naval forces under his command an 
 
 (u) Vattel, liv. in. ch. 8, 142; ch. 9, 166-173. Martens, Precis du 
 Droit des Gens Moderne de 1'Europe, liv. viii. ch. 4, 272280. Kliibcr, 
 Pt. 11. tit. 2, sect. 2, ch. 1, 262-265. [Twiss, War, p. 124.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 417 
 
 order to destroy and lay waste such towns and districts on the 
 coast as might be found assailable. 
 
 In the answer of the American government to this com- 349. 
 munication, dated at Washington on the 6th of September, O f tj)e r 
 1814, it was stated that it had seen, with the greatest surprise, United 
 that this system of devastation which had been practised by 
 the British forces, so manifestly contrary to the usages of 
 civilized warfare, was placed on the ground of retaliation. No 
 sooner were the United States compelled to resort to war 
 against Great Britain, than they resolved to wage it in a 
 manner most consonant to the principles of humanity, and to 
 those friendly relations which it was desirable to preserve 
 between the two nations, after the restoration of peace. They 
 perceived, however, with the deepest regret, that a spirit alike 
 just and humane, was neither cherished nor acted on by the 
 British government. Without dwelling on the deplorable 
 cruelties committed ' by the Indian savages, in the British 
 ranks and in British pay, at the river Eaisin, which had never 
 been disavowed or atoned for, the American government 
 referred, as more particularly connected with the subject of 
 the above communication, to the wanton desolation that was 
 committed, in 1813, at Havre-de-Grace and Georgetown, in 
 the Chesapeake Bay. These villages were burnt and ravaged 
 by the British naval forces, to the ruin of their unarmed 
 inhabitants, who saw with astonishment that they derived no 
 protection to their property from the laws of war. During the 
 same season, scenes of invasion and pillage, carried on under 
 the same authority, were witnessed all along the shores of the 
 Chesapeake, to an extent inflicting the most serious private 
 distress, and under circumstances that justified the suspicion, 
 that revenge and cupidity, rather than the manly motives that 
 should dictate the hostility of a high-minded foe, led to their 
 perpetration. The late destruction of the houses of the 
 government at Washington, was another act which came 
 necessarily into view. In the wars of modern Europe, no 
 example of the kind, even among nations the most hostile to 
 each other, could be traced. In the course of ten years past, 
 the capitals of the principal powers of the European continent 
 had been conquered, and occupied alternately by the victorious 
 armies of each other, and no instance of such wanton and 
 
 B K
 
 418 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 unjustifiable destruction had been seen. They must go back 
 to distant and barbarous ages, to find a parallel for the acts of 
 which the American government complained. 
 
 Although these acts of desolation invited, if they did not 
 impose on that government the necessity of retaliation, yet in 
 no instance had it been authorized. 
 
 The burning of the village of Newark, in Upper Canada, 
 posterior to the early outrages above enumerated, was not 
 executed on the principle of retaliation. The village of 
 Newark adjoined Fort George, and its destruction was justi- 
 fied, by the officers who ordered it, on the ground that it 
 became necessary in the military operations there. The act, 
 however, was disavowed by the American government. The 
 burning which took place at Long Point was unauthorized by 
 the government, and the conduct of the officer had been sub- 
 jected to the investigation of a military tribunal. For the 
 burning at St. David's, committed by stragglers, the officer 
 who commanded in that quarter was dismissed, without a 
 trial, for not preventing it. 
 
 The American government stated, that it as little comported 
 with any orders which had been issued to its military and 
 naval commanders, as it did with the known humanity of 
 the American nation, to pursue the system which had been 
 adopted by the British. That government owed to itself, and 
 to the principles it had ever held sacred, to disavow, as justly 
 chargeable to it, any such wanton, cruel, and unjustifiable 
 warfare. Whatever unauthorized irregularities might have 
 been committed by any of its troops, it would have been ready, 
 acting on the principles of sacred and eternal obligation, to 
 disavow, and, as far as might be practicable, to repair them. 
 But in the plan of desolating warfare which Admiral Coch- 
 rane's letter so explicitly made known, and which was at- 
 tempted to be excused on a plea so utterly groundless, the 
 American government perceived a spirit of deep-rooted hos- 
 tility, which, without the evidence of such fact, it could not 
 have believed to exist, or that it would have been carried to 
 such an extremity for the reparation of injuries, of whatsoever 
 nature they might be, not sanctioned by the law of nations, 
 which the naval or military forces of either power might have 
 committed against the other. That the government would
 
 BIGHTS OF WAR AS BETWEEN ENEMIES. 419 
 
 always be ready to enter into reciprocal arrangements ; but 
 should the British government adhere to a system of desola- 
 tion, so contrary to the views and practices of the United 
 States, so revolting to humanity, and so repugnant to the 
 sentiments and usages of the civilized world, whilst it would 
 be seen, with the deepest regret, it must and would be met 
 with a determination and constancy becoming a free people, 
 contending in a just cause for their essential rights and their 
 dearest interests. 
 
 In the reply of Admiral Cochrane to the above communica- . 35 - 
 tion, dated on the 19th September, 1814, it was stated that he admiral's 
 had no authority from his government to enter into any kind reply- 
 of discussion relative to the point contained in that communi- 
 cation. He had only to regret that there did not appear to be 
 any hope that he should be authorized to recall his general 
 order, which had been further sanctioned by a subsequent 
 request, from the governor-general of the Canadas. Until 
 the admiral received instructions from his government, the 
 measures he had adopted must be persisted in, unless remu- 
 neration should be made to the Canadians for the injuries 
 they had sustained from the outrages committed by the troops 
 of the United States O). 
 
 The disavowal of the burning of Newark by the American 
 government had been communicated to the governor-general 
 of the Canadas, who answered, on the 10th February, 1814, 
 that it had been with great satisfaction! that he had received 
 the assurance that it was unauthorized by the American 
 government and abhorrent to every American feeling ; that if 
 any outrages had ensued, in the wanton and unjustifiable 
 destruction of Newark, passing the bounds of just retaliation, 
 they were to be attributed to the influence of irritated passions 
 on the part of the unfortunate sufferers by that event, which 
 it had not been possible altogether to restrain ; and that it was 
 as little congenial to the disposition of the British government 
 as it was to that of the United States, deliberately to adopt 
 any plan of hostilities which had for its object the devastation 
 of private property. 
 
 Under these circumstances, the destruction of the Capitol, ?51. . 
 
 ' Burning of 
 
 (x) Correspondence between Mr. Secretary Monroe and Admiral Cochrane, 
 American State Papers, fol. edit. vol. iii. pp. 693, 694. 
 
 E 2
 
 RIGHTS OF TfAR AS BETWEEN ENEMIES. 
 
 420 
 
 ton 8 mg ~ ^ ^ e President's house, and other public buildings at 
 Washington, in August, 1814, could not but be considered 
 by the whole world as a most unjustifiable departure from the 
 laws of civilized warfare. In the debate which took place in 
 the House of Commons on the llth of April, 1815, on the 
 Address to the Prince Regent on the treaty of peace with the 
 United States, Sir James Mackintosh accused the ministers 
 of culpable delay in opening the negotiations at Ghent ; 
 which, he said, could not be explained, except on the miserable 
 policy of protracting the war for the sake of striking a blow 
 against America. The disgrace of the naval war, of balanced 
 success between the British navy and the new-born marine of 
 America, was to be redeemed by protracted warfare, and by 
 pouring their victorious armies upon the American continent. 
 That opportunity, fatally for them, arose. If the Congress 
 had opened in June, it was impossible that they should have 
 sent out orders for the attack on Washington. They would 
 have been saved from that success, which he considered as a 
 thousand times more disgraceful and disastrous than the 
 worst defeat. It was a success which had made their naval 
 power hateful and alarming to all Europe. It was a success 
 which gave the hearts of the Americen people to every enemy 
 who might rise against England. It was an enterprise which 
 most exasperated a people, and least weakened a government, 
 of any recorded in the annals of war. For every justifiable 
 purpose of present warfare, it was almost impotent. To 
 every wise object of prospective policy, it was hostile. It was 
 an attack, not against the strength or the resources of a State, 
 but against the national honour and public affections of a 
 people. After twenty-five years of the fiercest warfare, in 
 which every great capital of the European continent had been 
 spared, he had almost said respected, by enemies, it was 
 reserved for England to violate all that decent courtesy 
 towards the seats of national dignity, which, in the midst of 
 enmity, manifest the respect of nations for each other, by an 
 expedition deliberately and principally directed against 
 palaces of government, halls of legislation, tribunals of 
 justice, repositories of the muniments of property, and of 
 the records of history ; objects, among civilized nations 
 exempted from the ravages of war, and secured, as far as
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 421 
 
 possible, even from its accidental operation, because they 
 contribute nothing to the means of hostility, but are con- 
 secrated to purposes of peace, and minister to the common 
 and perpetual interest of all human society. It seemed to 
 him an aggravation of this atrocious measure, that ministers 
 had endeavoured to justify the destruction of a distinguished 
 capital, as a retaliation for some violences of inferior Ameri- 
 can officers, unauthorized and disavowed by their government, 
 against he knew not what village in Upper Canada. To make 
 such retaliation just, there must always be clear proof of the 
 outrage ; in general also, sufficient evidence that the adverse 
 government had refused to make due reparation for it ; and } 
 lastly, some proportion of the punishment to the offence. 
 Here there was very imperfect evidence of the outrage no 
 proof of refusal to repair and demonstration of the excessive 
 and monstrous iniquity of what was falsely called retaliation. 
 The value of a capital is not to be estimated by its houses, 
 and warehouses, and shops. It consisted chiefly in what 
 could be neither numbered nor weighed. It was not even by 
 the elegance or grandeur of its monuments that it was most 
 endeared to a generous people. They looked upon it with 
 affection and pride as the seat of legislation, as the sanctuary 
 of public justice, often as linked with the memory of past 
 times, sometimes still more as connected with their fondest 
 and proudest hopes of greatness to come. To put all these 
 respectable feelings of a great people, sanctified by the 
 illustrious name of Washington, on a level with half a dozen 
 wooden sheds in the temporary seat of a provincial govern- 
 ment, was an act of intolerable insolence, and implied as 
 much contempt for the feelings of America as for the common 
 sense of mankind (?/). 
 
 The devastation of his own territory has sometimes been resorted to e o ei _ 
 by a belligerent for the purpose of impeding the advance of the enemy, Ravaging 
 and this is perfectly justifiable. Thus, Peter the Great contributed to territory, 
 his victory over Charles XII. at Pultawa by laying waste eighty square 
 leagues of Eussian territory that lay in the path of the Swedish army. 
 In 1812, the Russians caused the destruction of Napoleon's army by 
 burning down Moscow (2). The ravaging of Georgia and Carolina by 
 General Sherman during the American Civil War, was perhaps a 
 
 (y) Hansard's Parliamentary Debates, vol. xxx. pp. 526, 527. 
 (?) [Calvo, ii. 8P3.]
 
 422 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 necessary military operation on the part of the Federal troops, and it 
 certainly tended to bring the war to a more rapid conclusion (a). 
 
 The invasion of France by the allied powers of Europe, in 
 1815, was followed by the forcible restitution of the pictures, 
 works of statues, and other monuments of art, collected from different 
 Museum of conquered countries during the wars of the French revolu- 
 the Louvre tion, and deposited in the museum of the Louvre. The 
 1815, to the grounds upon which this measure was adopted are fully 
 fronf which ex P^ a i ne d in a note delivered by the British minister, Lord 
 they had Castlereagh, to the ministers of the other allied powers at 
 Paris > on tne lltn September, 1815. In this note it was 
 
 wars of stated by the British plenipotentiary, that representations had 
 revolution, been laid before the Congress, assembled in that capital, from 
 the Pope, the Grand Duke of Tuscany, the King of the 
 Netherlands, claiming, through the intervention of the allied 
 powers, the restoration of the statues, pictures, and other 
 works of art, of which their respective States had been suc- 
 cessively stripped by the late revolutionary government of 
 France, contrary to every principle of justice, and to the 
 usages of modern warfare ; and the same having been re- 
 ferred for the consideration of his Court, he had received the 
 Prince Regent's commands to submit, for the consideration 
 of his allies, the following remarks upon that interesting 
 subject. 
 
 353. It was now the second time that the powers of Europe had 
 Casti been compelled in vindication of their own liberties and for 
 reagh's the settlement of the world, to invade France, and twice their 
 armies had possessed themselves of the capital of the State, 
 in which these, the spoils of the greater part of Europe, were 
 accumulated. The legitimate sovereign of France had as 
 often, under the protection of those armies, been enabled to 
 resume his throne, and to mediate for his people a peace with 
 the allies, to the marked indulgence of which neither their 
 conduct to their own monarch, nor towards other States, had 
 given them just pretensions to aspire. That the purest senti- 
 ments of regard for Louis XVIII., deference for his ancient and 
 illustrious house, and respect for his misfortunes, had inva- 
 riably guided the allied councils, had been proved beyond a 
 
 (a) [North American Review, April, 1872, p. 405.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 question, by their having, in 1814, framed the treaty of Paris 
 on the basis of preserving to France its complete integrity ; 
 and still more, after their late disappointment, by the endea- 
 vours they were again making, ultimately to combine the 
 substantial interests of France with such an adequate system 
 of temporary precaution as might satisfy what they owed to 
 the security of their own subjects. But it would be the 
 height of weakness, as well as of injustice, and, in its effects 
 much more likely to mislead than to bring back the people of 
 France to moral and peaceful habits, if the allied sovereigns, 
 to whom the world was anxiously looking up for protection and 
 repose, were to deny that principle of integrity in its just and 
 liberal application to other nations, their allies, (more espe- 
 cially to the feeble and the helpless,) which they were about, 
 for a second time, to concede to a nation against which they 
 had had occasion so long to contend in war. Upon what 
 principle could France, at the close of the war, expect to sit 
 down with the same extent of possessions which she held 
 before the revolution, and desire, at the same time, to retain 
 the ornamental spoils of all other countries ? Was there any 
 possible doubt of the issu e of the contest, or of the power of 
 the allies to effectuate what justice and policy required? If 
 not, upon what principle would they deprive France of her 
 late territorial acquisitions, and preserve to her the spolia- 
 tions consisting of objects of art appertaining to those terri- 
 tories, which all modern conquerors had invariably respected, 
 as inseparable from the country to which they belonged ? 
 
 These remarks were amplified by a variety of considerations 
 of political expediency, not necessary to be recapitulated, and 
 the note concluded by declaring, that in applying a remedy to 
 this offensive evil, it did not appear that any middle line 
 could be adopted which did not go to recognize a variety of 
 spoliations, under the cover of treaties, if possible more 
 flagrant in their character than the acts of undisguised rapine 
 by which these remains were, in general, brought together. 
 The principle of property regulated by the claims of the ter- 
 ritories from whence these works were taken, is the surest 
 and only guide to justice ; and perhaps there was nothing 
 which would more tend to settle the public mind of Europe 
 at this day, than such a homage on the part of the 
 
 423
 
 4-24 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 King of France, to a principle of virtue, conciliation, and 
 peace (b). 
 
 354. In the debate which took place in the House of Commons, 
 gi e g s of on the 20th of February, 1816, on the Peace with France, 
 Romilly. Sir Samuel Kornilly, speaking incidentally of this proceeding, 
 stated that he was by no means satisfied of its justice. It 
 was not true that the works of art deposited in the museum 
 of the Louvre, had all been carried away as the spoils of war ; 
 many, and the most valuable of them, tad become the 
 property of France by express treaty stipulations ; and it 
 was no answer to say that those treaties had been made 
 necessary by unjust aggressions and unprincipled wars ; 
 because there would be an end of all faith between nations, if 
 treaties were to be held not to be binding, because the wars 
 out of which they arose were unjust, especially as there could 
 be no competent judge to decide upon the justice of the war, 
 but the nation itself. By whom, too, was it that this sup- 
 posed act of justice and this " great moral lesson," as it was 
 called, had been read ? By the very powers who had, at 
 different times, abetted France in these her unjust wars. 
 Among other articles carried from Paris, under the pretence 
 of restoring them to their rightful owners, were the celebrated 
 Corinthian horses which had been brought from Venice ; but 
 how strange an act of justice was this to give them back their 
 statues, but not to restore to them those far more valuable pos- 
 sessions, their territory and their republic, which were, at the 
 same time, wrested from the Venetians ? But the reason of 
 this was obvious : the city and the territory of Venice had 
 been transferred to Austria by the treaty of Campo Formio, 
 but the horses had remained the trophy of France ; and 
 Austria, whilst she was thus hypocritically reading this moral 
 lesson to nations, not only quietly retained the rich and unjust 
 spoils she had got, but restored these splendid works of art, not 
 to the Venice which had been despoiled of them, the ancient, 
 independent, republican Venice ; but to Austrian Venice to 
 that country which, in defiance of all the principles she 
 pretended to be acting on, she still retained as part of her 
 own dominions (c). 
 
 (b) Martens, Nouveau Recueil, torn. ii. p. 632. 
 
 (<) Life of Romilly, edited by his sons, vol. ii. p. 404.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 425 
 
 The progress of civilization has slowly, but constantly, 355 - 
 
 ,,,, . Distinction 
 
 tended to soften the extreme severity of the operations of war between 
 
 by land ; but it still remains unrelaxed in respect to maritime p*" 1 ^- 
 warfare, in which the private property of the enemy taken at taken at 
 sea or afloat in port, is indiscriminately liable to capture and i^d. r ' 
 confiscation. This inequality in the operation of the laws of 
 war, by land and by sea, has been justified by alleging the 
 usage of considering private property when captured in cities 
 taken by storm, as booty ; and the well-known fact that con- 
 tributions are levied upon territories occupied by a hostile 
 army, in lieu of a general confiscation of the property be- 
 longing to the inhabitants ; and that the object of wars by 
 land being conquest, or the acquisition of territory to be 
 exchanged as an equivalent for other territory lost, the regard 
 of the victor for those who are to be or have been his 
 subjects, naturally restrains him from the exercise of his 
 extreme rights in this particular ; whereas, the object of 
 maritime wars is the destruction of the enemy's commerce and 
 navigation, the sources and sinews of his naval power which 
 object can only be attained by the capture and confiscation of 
 private property. 
 
 The strictness of the rule subjecting all the enemy's property on the 355 a. 
 high seas to confiscation was somewhat modified by the Declaration of ^nemy a 
 Paris, 1856, which provides, in its second article, that " The neutral flag der a neu- 
 covers enemy's goods, with the exception of contraband of war " (d). tral flag. 
 Almost all civilized powers, with the exception of the United States, are 
 parties to this Declaration (e). 
 
 The indiscriminate seizure of private property on land would cause 355 b. 
 the most terrible hardship, without conferring any corresponding ad van- Capture of 
 tage on the invader. It cannot be effected without in some measure fhe^h ^ 
 relaxing military discipline, and is sure to be accompanied by violence seas, 
 and outrage. On the other hand, the capture of merchant vessels is 
 usually a bloodless act, most merchant vessels being incapable of resist- 
 ing a ship of war. Again, property on land consists of endless varieties, 
 much of it being absolutely useless for any hostile purpose, while pro- 
 perty at sea is almost always purely merchandise, and thus is part of the 
 enemy's strength. It is, moreover, embarked voluntarily, and with a 
 knowledge of the risk incurred, and its loss can be covered by in- 
 surance (/). An invader on land can levy contributions or a war indem- 
 nity from a vanquished country, he can occupy part of its territory and 
 appropriate its rents and taxes, and by these and other methods, he can 
 
 (d) [Hertslet, Map of Europe, vol. ii. p. 1282.] 
 
 (e) [See Ibid., p. 1284.] 
 
 (/) [Wheaton, by Dana, n. 171.]
 
 426 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 enfeeble the enemy and terminate the war. But in a maritime war, a 
 belligerent has none of these resources, and his main instrument of 
 coercion is crippling the enemy's commerce (g). If war at sea were to be 
 restricted to the naval forces, a country possessing a powerful fleet would 
 have very little advantage over a country with a small or with no fleet. 
 If the enemy kept his ships of war in port, a powerful fleet, being unable 
 to operate against commerce, would have little or no occupation (h). 
 The United States proposed to add to the Declaration of Paris a clause 
 exempting all private property on the high seas from seizure by public 
 armed vessels of the other belligerent, except it be contraband ; but this 
 proposal was not acceded to (i). Nor does it seem likely, for the reasons 
 stated above, that maritime nations will forego their rights in this respect. 
 355 c. It is often a matter of difficulty for a prize court to determine to 
 "What are whom property captured at sea actually belongs. The general rule is 
 sncmy s ^at y g 00( j s are shipped on account and at the risk of the consignee, 
 they are considered his goods during the voyage. In such a case 
 delivery of the goods to the master is a delivery to the consignee (k). 
 In time of peace the parties may of course agree to any terms they please, 
 as to whose risk the property should be at during the voyage, but in 
 time of war, or in contemplation of war, the rule of prize courts is, that 
 property which has a hostile character at the commencement of the 
 voyage, cannot change that character by assignment while it is in 
 transitu, so as to protect it from capture (I). Unless such a rule were 
 adopted, all property passing between a neutral and a belligerent would 
 be colourably assigned to the neutral, and the belligerent right of capture 
 would be comparatively worthless. It is therefore the duty of a prize 
 court to ascertain in whom the property was vested at the outset of the 
 voyage, and in this inquiry all equitable liens on enemy's property are 
 disregarded, and all revelations of risk to neutral consignors are held to 
 be fraudulent (m). On the other hand, enemy's liens on neutral property 
 are equally disregarded, being held not to confer such an enemy cha- 
 racter on the ship or goods as to subject them to confiscation (w). If, 
 however, the shipment as well as the contract, laying the risk on the 
 neutral consignor, were both made in time of peace, and are proved to 
 have been bond fide, and not in contemplation of war, the ownership 
 which was in the neutral consignor at the beginning of the voyage 
 remains in him until its termination, and the goods will not be con- 
 demned (o). Nor are they condemned when shipped by an enemy 
 
 (g) [Ortolan, Diplomatie de la Mer, Hv. iii. ch. ii.] 
 
 (h) [Field, Int. Code (2nd ed.) p. 527.] 
 
 (i) [Halleck, ch. xx. 3.] 
 
 (k) [The Packet de Bilboa, 2 C. Rob. 133. Duer on Insurance, vol. i. 
 pp. 4212.] 
 
 (I) [Kent, Comm. vol. i. p. 86 (12th ed.) Duer on Insurance, vol. i. p. 431. 
 The Francis, 1 Gallison, 445.] 
 
 (vn) [Kent, vol. i. p. 87 (12th ed.) TJie Josephine, 4 C. Rob. 75 ; The 
 Tobago, 5 C. Rob. 218 ; The Marianna, 6 G. Rob. 24 ; The Ida, 1 Spinks, 
 26.] 
 
 () [The Ariel, 11 Moo. P. C. 119.] 
 
 (o) [Halleck, ch. xx. 9. Duer on Insurance, i. p. 425. The Atlas, 3 C. 
 Rob. 299.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 427 
 
 during war, if it is proved beyond all doubt that they were shipped abso- 
 lutely at the risk of a neutral consignee. Such transactions are, how- 
 ever, carefully scrutinized in a prize court (p). The only case in which 
 the right of stoppage in transitu can be exercised during war is in the 
 expectation, confirmed by the event, of the insolvency of the consignee (q). 
 
 The transfer of ships from belligerents to neutrals during war, is always 355 d. 
 looked upon very suspiciously, and clear proof of bona fides is required to Sale of 
 save the ship from condemnation (r). Thus, a British ship alleged to f jf^. y 
 have been sold to a neutral after hostilities had broken out between ne ^trals. 
 England and Holland, was captured while trading between Guernsey 
 and Amsterdam under the command of her former master, who had also 
 been the owner. She was condemned as prize for trading with the enemy, 
 the transfer being deemed colourable and void (s~). But if the sale of a 
 ship by a belligerent to a neutral be absolute and bond fide, it is then 
 permitted either during war or in contemplation of it, and whether she 
 is lying in an enemy or a neutral port. All interest of the vendor in 
 the ship must be completely divested, but the mere non-payment of part 
 of the price is not conclusive evidence of itself that the vendor's interest 
 is not entirely transferred (). Vessels of war lying in neutral ports 
 cannot be sold by their belligerent owners at any time during the war. 
 If so sold, a ship of war, even though purchased in good faith, and fitted 
 up as a merchant vessel, remains liable to capture by the other belli- 
 gerent as long as the war lasts (). Capture as prize overrides all previous 
 liens (v), and it gives the captor all the owner's rights when the voyage 
 began (x). Even a bond fide mortgagee, a subject of the captor's country, 
 is not entitled to have his mortgage paid out of the proceeds of the sale 
 of the prize (y). 
 
 The effect of a state of war, lawfully declared to exist, is to 35 6. 
 place all the subjects of each belligerent power in a state of so^are""" 
 
 mutual hostility. The usage of nations has modified this authoriz ed 
 
 to engage 
 
 maxim by legalising such acts of hostility only as are com- in hostiii- 
 mitted by those who are authorized by the express or implied jj, e e 8 JjjJ 8 * 
 command of the State. Such are the regularly commissioned 
 naval and military forces of the nation, arid all others called 
 out in its defence, or spontaneously defending themselves in 
 cases of urgent necessity, without any express authority for 
 
 (p) [Halleck, ch. xx. 10. Duer on Insurance, i. p. 426. The Aurora, 
 4 C. Rob. 219.] 
 
 (q} [Duer on Insurance, i. p. 433. The Constancia, 6 C. Rob. 324; Op- 
 penheim v. Russel, 3 Bos. & Pul. 484.] 
 
 (7-) [Duer, i. p. 444.] 
 
 (s) [The Omnibus, 6 C. Rob. 71; The Odin, 1 C. Rob. 252.] 
 
 (0 [The Ariel, 11 Moo. P. C. 129; The Sechs Geschwistcrn, 4 C. Rob. 100.] 
 
 (u) [The Georgia, 7 Wallace, 32.] 
 
 (v) [The Battle, 6 Wallace, 498 ; The Steamer Nassau, Blatchford Prize Cas. 
 665; The Ida, 1 Spinks, 35.] 
 
 (*) [The Sally Mogee, 3 Wallace, 451.] 
 
 (y) [The Hampton, 5 Wallace, 372. Le Turner, Barboux, Jurisp. du 
 G'onseil des Prises, 187071, p. 75. The Ai,M, 1 Spinks, ID.]
 
 428 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 that purpose. Cicero tells us, in his Offices, that by the 
 Eoman fecial law, no person could lawfully engage in battle 
 with the public enemy, without being regularly enrolled and 
 taking the military oath. This was a regulation sanctioned 
 both by policy and religion. The horrors of war would indeed 
 be greatly aggravated, if every individual of the belligerent 
 .States was allowed to plunder and slay indiscriminately the 
 enemy's subjects without being in any manner accountable 
 for his conduct. Hence it is that in land wars, irregular bands 
 of marauders are liable to be treated as lawless banditti, not 
 entitled to the protection of the mitigated usages of war as 
 practised by civilized nations (z). 
 357. j mus t probably be considered as a remnant of the bar- 
 
 .N on -com- r * 
 
 missioned barous practices of those ages when maritime war and piracy 
 captors. were synonymous, that captures made by private armed 
 vessels without a commission, not merely in self-defence, but 
 even by attacking the enemy, are considered lawful, not indeed 
 for the purpose of vesting the enemy's property thus seized 
 in the captors, but to prevent their conduct from being re- 
 garded as piratical, either by their own government or by the 
 other belligerent State. Property thus seized is condemned 
 to the government as prize of war, or, as these captures are 
 technically called, Droits of Admiralty. The same principle 
 is applied to the captures made by armed vessels commis- 
 sioned against one power, when war breaks out with another ; 
 the captures made from that other are condemned, not to the 
 captors, but to the government (a). 
 
 358. -jjke p rac tice of cruising with private armed vessels com- 
 missioned by the State, has been hitherto sanctioned by the 
 laws of every maritime nation, as a legitimate means of 
 destroying the commerce of an enemy. The practice has 
 been justly arraigned as liable to gross abuses, as tending to 
 encourage a spirit of lawless depredation, and as being in 
 glaring contradiction to the more mitigated modes of warfare 
 practised by land. Powerful efforts have been made by 
 humane and enlightened individuals to suppress it, as incon- 
 
 (z) Vattel, Droitdes Gens, liv. iii. ch. 15, 223228. Kliiber, Droit des 
 Gens Moderne de 1'Europe, 267. 
 
 (a) Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. The Abigail 
 4 C. Rob. 72. The Gevrgiana, 1 Dods. Ad. 397. Sparks's Diplomatic Cor- 
 respondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 429 
 
 sistent with the liberal spirit of the age. The treaty nego- 
 tiated by Franklin, between the United States and Prussia, in 
 178f>, by which it was stipulated that, in case of war, neither 
 power should commission privateers to depredate upon the 
 commerce of the other, furnishes an example worthy of 
 applause and imitation. But this stipulation was not revived 
 on the renewal of the treaty, in 1799 ; and it is much to be 
 feared that, so long as maritime captures of private property 
 are tolerated, this particular mode of injuring the enemy's 
 commerce will continue to be practised, especially where it 
 affords the means of countervailing the superiority of the 
 public marine of an enemy (6). 
 
 The first article of the Declaration of Paris recites that " Privateering 358 a. 
 is and remains abolished." Spain and Mexico, though parties to the Abolition 
 rest of the Declaration, have not acceded to this article, and although 
 various attempts have been made to induce the United States to become 
 an accessory, that power is as yet not bound by any part of the Decla- 
 ration (e). During the American civil war, Congress authorized the 
 President to issue letters of marque, but he did not avail himself of 
 this power. The Confederates offered their letters of marque to 
 foreigners, but the restrictive legislation of the maritime powers, and 
 the threat of the United States of treating such vessels as pirates, pre- 
 vented their being accepted. The ostensibly Confederate vessels were 
 commissioned as of its regular navy (d}. 
 
 The title to property lawfully taken in war may, upon 359. 
 general principles, be considered as immediately divested from ^^ert 
 the original owner, and transferred to the captor. This captured in 
 general principle is modified by the positive law of nations, 
 in its application both to personal and real property. As to 
 personal property or moveables, the title is, in general, con- 
 sidered as lost to the former proprietor as soon as the enemy 
 has acquired a firm possession ; which, as a general rule, is 
 considered as taking place after the lapse of twenty-four hours, 
 or after the booty has been carried into a place of safety, infra 
 pr&sidia of the captor (e) . 
 
 (b) Vattel, liv. iii. ch. 15, 229. Franklin's "Works, vol. ii. pp. 447, 530. 
 Edinburgh Review, vol. viii. pp. 13 15. North American Review, vol. ii. 
 (N. S.) pp. 166 -196. Wheaton's Hist. Law of Nations, p. 308. 
 
 (c) [Hertslet, Map of Europe, vol. ii. p. 1282.] 
 
 (d) [Wheaton, by Dana, n. 173.] 
 
 (e) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, 3 ; cap. 9, 14. Kliiber, 
 Droit des Gens Mod erne de 1' Europe, 254. Vattel, Droit des Gens, liv. iii. 
 ch. 13, 196 ; ch. 14, 209. Heffter, Das Europaische Volkerrecht, 136.
 
 430 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 359 a. 
 
 Booty aad 
 prize. 
 
 359 b. 
 
 Prize and 
 booty be- 
 long pri- 
 marily to 
 the sove- 
 reign. 
 
 Property of the enemy taken on land is usually called booty, while 
 that captured on the high seas has acquired the name of prize (/). There 
 is a very important distinction between them as regards the mode in 
 which the captor acquires a title to the captured property. As stated in 
 the text, "booty belongs to the captor as soon as he has acqiiired a firm 
 possession of it. No adjudication of any court is necessary to establish 
 his title (gr). On the other hand, a title to prize is acquired, as a general 
 rule, only after the property has been condemned by a competent 
 court (ti). By the modern usage of nations neither the twenty-four 
 hours' possession, nor the bringing the prize infra prcesidia, is sufficient 
 to change the property in the case of a maritime capture. Until the 
 capture becomes invested with the character of prize by a sentence of 
 condemnation, the right of property is in abeyance, or in a state of legal 
 sequestration (i). Ships and their cargoes are not invariably prize . 
 Thus during the American civil war a ship captured in a river by a 
 detached naval force in boats was held not to be maritime prize, or to be 
 condemned as such (k). 
 
 The primary title to all property taken in war, whether on land or at 
 sea, is in the sovereign (Z). The law of England on this point has been 
 thus laid down by Lord Brougham : " That prize is clearly and dis- 
 tinctly the property of the Crown, that the sovereign in this country, 
 the executive government in all countries, in whom is vested the power 
 of levying the forces of the State, and of making war and peace, is alone 
 possessed of all property in prize, is a principle not to be disputed. It 
 is equally incontestable that the Crown possesses this property plenojure 
 absolutely and wholly without control ; that it may deal with it entirely 
 at its pleasure, may keep it for its own use, may abandon or restore it to 
 the enemy, or, finally, may distribute it in whole or in part among the 
 persons instrumental in its capture, making that distribution according 
 to whatever scheme, and under whatever regulations and conditions it 
 sees fit. It is equally clear, and it follows from the two former pro- 
 positions, that the title of a party claiming prize must needs in all cases 
 be the act of the Crown, by which the royal pleasure to grant the prize 
 shall have been signified to the subject ; whether, even in that case, 
 the same paramount and transcendent power of the Crown might not 
 enure to the effect of preserving to His Majesty the right of modifying, 
 or altogether revoking, the grant, is a question which has never yet 
 arisen, and which, when it does arise, will be found never to have been 
 determined in the negative. But this, at all events, is clear, that when 
 the Crown, by an act of grace and bounty, parts, for certain purposes, 
 and subject to certain modifications, with the property in prize, it by 
 that act plainly signifies its intention that the prize shall continue 
 
 (f) [Genoa and its Dependencies, 2 Dods. Ad. 446.] 
 
 (g) [Lamar v. Browne, 2 Otto, 195.] 
 
 (h) [Opinions of Att.-Gen. (U. S.) vol. iii. p. 379. Field, International 
 Code, 896. Goss v. Withers, 2 Burrows, 693.] 
 
 (i) [Kent, vol. i. p. 103 (12th ed.) Tudor, Leading Cases on Maritime 
 Law, pp. 819821. Calvo, ii. 1236.] 
 
 (k) [The Cotton Plant, 10 Wallace, 577.] 
 
 (I) [Phillimore, vol. iii. cxxx. Calvo, ii. 1237. Halleck, ch. xxx. 3.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 431 
 
 subject to the power of the Crown, and as it was before the act was 
 done. 
 
 " This doctrine has been frequently recognized in cases where the ques- 
 tion has arisen subsequently to the capture, and before condemnation ; 
 but the same principle was afterwards extended in the case of the 
 Elsebe (in), at the cockpit, in which, after final adjudication in the Court 
 below, but pending an appeal, the Crown thought proper, for reasons of 
 State and public policy, to restore the prize at the expense of the 
 captors. In other words, it was then determined, and that too upon a 
 solemn and most able argument, and by a judge the most learned and 
 eminent of his time, the present Lord Stowell, that when the Crown 
 saw fit to restore the capture, the captors, who had run the risk and 
 suffered the loss, who had, moreover, borne the charge of bringing the 
 prize into port, and the further costs of proceeding in the Admiralty 
 to adjudication, and had even undergone additional expenses in contest- 
 ing their claim upon appeal, were altogether without a remedy. ' It is 
 admitted,' says Lord Stowell in language which it would be vain to 
 praise or to attempt to imitate ' it is admitted on the part of the 
 captors, whose interests have been argued with great force (and not the 
 less effective, surely, for the extreme decorum with which that force has 
 been tempered) that their claim rests wholly on the Order of Council, 
 the Proclamation, and the Prize Act. It is not, as it cannot be, denied 
 that, independent of these instruments, the whole subject-matter is in 
 the hands of the Crown, as well in point of interest as in point of 
 authority. Prize is altogether a creature of the Crown. No man has, 
 or can have, any interest but what he takes as the mere gift of the 
 Crown ; beyond the extent of that gift he has nothing. This is the 
 principle of law on the subject, and founded on the wisest reasons. The 
 right of making war and peace is exclusively in the Crown. The 
 acquisitions of war belong to the Crown, and the disposal of these 
 acquisitions may be of the utmost importance for the purposes both of 
 war and peace. This is no peculiar doctrine of our constitution ; it is 
 universally received as a necessary principle of public jurisprudence by 
 all writers on the subject, Bella parta cedunt reipublicce ' " (ri). 
 
 On the completion of a capture it is the duty of the captor to bring 359 c. 
 his prize, as soon as his other duties permit it, before a competent Duties of 
 court (o). Since the property in a prize is in abeyance until a competent ca P tors - 
 court has pronounced upon the capture, it is the interest of all parties 
 to obtain a judicial decree as soon as possible. As the custody of the 
 prize remains with the captor, it therefore lies upon him to bring it before 
 the Court. But if prevented by imperious circumstances from bringing 
 it to his own country, he may be excused for taking it to a foreign port, 
 or for selling it, provided he afterwards reasonably subjects its proceeds 
 to the Court (p). By unreasonable delay in bringing in the prize for 
 
 (m) [5 C. Rob. 173.] 
 
 (n) [Alexander v. The Duke of Wellington, 2 Russell & Mylne, 54. Lord 
 Stowell's remarks are to be found in The Elsebe, 5 C. Rob. 581.] 
 (o) [Phillimore, vol. iii. 341.] 
 (p) [Halleck, ch. xxx. 5. The Peacock, 4 C. Rob. 192.]
 
 432 EIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 adjudication, or by other misconduct, the captor may forfeit all his right 
 of prize, and in this case the prize is condemned to the State, if the 
 capture was originally lawful(<?). If the capture was made entirely 
 without prohahle cause, the captor is liable for costs, and for the damages 
 resulting from the illegal seizure, and the latter are decreed to the 
 injured owner (r). 
 
 359d. " Sometimes," says Chancellor Kent, "circumstances will not permit 
 
 Destruction p r0 p er ty captured at sea to be sent into port ; and the captor in such 
 sea> cases may destroy it, or permit the original owner to ransom it " (s). If 
 
 the vessel belong to the enemy, and the captor has no means of retaining 
 possession of her, or of bringing her into port, he is then justified in 
 destroying her, but it is his duty to preserve her papers and as much of 
 the cargo as he can secnre. The Confederate cruisers burnt many of 
 their prizes at sea during the civil war, as their own ports were all 
 blockaded by the Federal fleets ; and though this was not a proceeding 
 to be approved of, it was not a violation of international law (t). At 
 the conclusion of the war the Federal government wished to proceed 
 against Captain Semines of The Alabama for burning and destroying 
 ships and cargoes belonging to American citizens. They could not 
 indict him for high treason as he had been treated as a prisoner of war. 
 But no proceedings were actually taken. Mr. Bolles, the law officer to 
 whom the case was referred, gave it as his opinion that Captain Semmes 
 had done no more than the United States had themselves done to 
 England in the war of 1812-14. During that war orders had been 
 given that no prize should be manned or preserved unless circumstances 
 should render her safe arrival morally certain. No prizes were to be 
 ransomed, and almost all were to be destroyed. Mr. Bolles also pointed 
 out that it might be the policy of the Union to pursue a similar course 
 in some future war, and therefore he deemed it improper to prosecute a 
 person who had, under orders, simply followed the example of the 
 government (tt). 
 
 Destruction During the present war with Turkey, Russia is alleged to have made 
 
 of Turkish a practice of sending out fast steamers from Odessa, which, while they 
 
 vessels by avo j,] e( i the Turkish cruisers, captured Turkish merchantmen, burnt 
 
 steamers, t^ 6111 P n t ^ ie s P ot an< ^ i ^ en set t ^ ie crews adrift in boats. If this be true, 
 
 it is an undeniable violation of international law. It is, moreover, an 
 
 act of wanton and unnecessary cruelty to burn the ships and then expose 
 
 the lives of their crews in open boats, and it is an act which can only 
 
 influence the war by exasperating the other side, and inducing it to 
 
 retaliate by similar measures (x). 
 
 359 e. If the prize is a neutral ship, no circumstances will justify her destruc- 
 Destruction 
 
 (q) [The Bothne.a, 2 Gallison, 78 ; The Triton, 4 C. Bob. 78. Phillimore, 
 vol. iii. 381. Mttlerv. The Resolution, 2 Dallas, 1.] 
 
 (r) [Halleck, ch. xxx. 29. Phillimore, vol. iii. 452. Del Col v. Arnold, 
 3 Dallas, 333. The Anna Maria, 2 Wheaton, 3k7.] 
 (s) [Kent, by Abdy, p. 276.] 
 
 (t) [Montague Bernard, Neutrality of England during Civil War, p. 419. 
 Lushington, Manual of Naval Prize Law, 101.] 
 
 (u\ [Atlantic Monthly, July, 1866, p. 89. Parl. papers, 1873 (No. 2), 
 p. 92.] 
 
 (x) [See the Times, 15th Dec. 1877, p. 6.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 433 
 
 tion before condemnation. The only proper reparation to the neutral of neutral 
 is to pay him the full value of the property destroyed (y). Neutral S ' 1 ^P or 
 cargoes are not always equally privileged. In 1870 the Desaix, a French K 
 cruiser, captured two German vessels, the Liulwig and the Norwaerts, and 
 burnt them on the day of capture. Part of the cargo of these vessels 
 belonged to neutral owners (British subjects), and was therefore under 
 the express protection of the third article of the Declaration of Paris. 
 The owners claimed compensation for the destruction of their goods, but 
 the Conseil d'Etat, in a judgment delivered by the President of the 
 French Republic, held that though the Declaration of Paris exempts the 
 goods of a neutral on board an enemy's ship from confiscation, and 
 entitles the owner to their proceeds in case of a sale, yet it gives him no 
 claim to compensation for any damage resulting from the lawful capture 
 of the ship, or from any subsequent and justifiable proceedings of the 
 captors. As the destruction of the two vessels was held to have been 
 necessary under the circumstances, no compensation was awarded to the 
 o \vners of the neutral cargo (z). 
 
 As to ships and goods captured at sea, and afterwards 360. 
 recaptured, rules are adopted somewhat different from those tu e r "e*and 
 which are applicable to other personal property. These rules salvage. 
 depend upon the nature of the different classes of cases to 
 which they are to be applied. Thus the recapture may be 
 made either from a pirate ; from a captor, clothed with a 
 lawful commission, but -not an enemy ; or, lastly, from an 
 enemy. 
 
 1. In the first case, there can be no doubt the property 361 - 
 ought to be restored to the original owner ; for as pirates tures from 
 have no lawful right to make captures, the property has not P irates - 
 been divested. The owner has merely been deprived of his 
 possession, to which he is restored by the recapture. For 
 the service thus rendered to him, the recaptor is entitled to a 
 remuneration in the nature of salvage (a). 
 
 Thus, by the Marine ordinance of Louis XIV., of 1681, liv. 
 iii. tit. 9, des Prises, art 10, it is provided, that the ships and 
 effects of the subjects or allies of France, retaken from pirates, 
 and claimed within a year and a day after being reported at 
 the Admiralty, shall be restored to the owner, upon payment 
 
 (y) [Twiss, International Law during War, 167, p. 331. The Felicity, 
 
 2Dods. Ad. 386.] 
 
 (z) [Dalloz, Jurisprudence Generate, 1872, Ft. III. p. 94.] - 
 
 (a] Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9, 17. Loceenius, de Jur. 
 
 Marit. lib. ii. c. 2, No. 4. Brown's Civ. and Adm. Law, vol. ii. c. 3, p. 461. 
 
 " Ea qnoe piratse nobis eripuerunt, non opus habent postliminio; quia jus 
 
 gentium illis non concedit, ut jus dominii mutari possint." Dig. de Capt, 
 
 ct Postl. revers.
 
 434 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 of one third of the value of the vessel and goods, as salvage. 
 And the same is the law of Great Britain, but there is no 
 doubt that the municipal law of any particular State may 
 ordain a different rule as to its own subjects. Thus the 
 former usage of Holland and Venice gave the whole property 
 to the retakers, on the principle of public utility ; as does that 
 of Spain, if the property has been in the possession of the 
 pirates twenty-four hours (6). 
 
 362. Valin, in his commentary upon the above article of the 
 Vaiinand French Ordinance, is of opinion that if the recapture be made 
 Pothier. by a foreigner, who is the subject of a State, the law of which 
 gives to the recaptors the whole of the property, it could not 
 be restored to the former owner : and he cites, in support of 
 this opinion, a decree of the Parliament of Bordeaux, in favour 
 of a Dutch subject, who had retaken a French vessel from 
 pirates (c). To this interpretation Pothier objects that the 
 laws of Holland having no power over Frenchmen and their 
 property within the territory of France, the French subject 
 could not thereby be deprived of the property in his vessel, 
 which was not divested by the piratical capture according to 
 the law of nations, and that it ought consequently to be 
 restored to him upon payment of the salvage prescribed by 
 the ordinance (d). 
 
 Under the term allies in this article are included neutrals ; 
 and Valin holds that the property of the subjects of friendly 
 powers, retaken from pirates by French captors, ought not to 
 be restored to them upon the payment of salvage, if the law 
 of their own country gives it wholly to the retakers ; other- 
 wise there would be a defect of reciprocity, which would 
 offend against that impartial justice due from one State to 
 another (e). 
 
 2. If the property be retaken from a captor clothed with a 
 lawful commission, but not an enemy, there would still be as 
 little doubt that it must be restored to the original owner. 
 For the act of taking being in itself a wrongful act, could not 
 change the property, which must still remain in him. 
 
 If, however/ the neutral vessel thus recaptured, were laden 
 
 (b) Grotius, par Barbeyrac, liv. 3, ch. 9, xvi. No. 1, and note. 
 
 (c) Valin, Comm. sur 1'Ord. liv. 3, tit. 9, art. 10. 
 
 (d) Pothier, Traite de Propriete, No. 101. 
 
 (e) Valiu, Comm. sur 1'Ord. liv. 3, tit. 9, art. 10. 
 
 Be-cap- 
 ture of 
 neutral 
 property.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 435 
 
 with contraband goods destined to an enemy of the first 
 captor, it may, perhaps, be doubted whether they should be 
 restored, inasmuch as they were liable to be confiscated as 
 prize of war to the first captor. Martens states the case of 
 a Dutch ship, captured by the British, under the rule of the 
 war of 1756, and recaptured by the French, which was ad- 
 judged to be restored by the Council of Prizes, upon the 
 ground that the Dutch vessel could not have been justly con- 
 demned in the British prize courts. But if the case had 
 been that of a trade, considered contraband by the law of 
 nations and treaties, the original owner would not have been 
 entitled to restitution (/). 
 
 In general, no salvage is due for the recapture of neutral 364. 
 vessels and goods, upon the principle that the liberation of a O n capture 
 bontf Jldfsi neutral from the hands of the enemy of the captor of neutral, 
 is no beneficial service to the neutral, inasmuch as the same 
 enemy would be compelled by the tribunals of his own country 
 to make restitution of the property thus unjustly seized. 
 
 It was upon this principle that the French Council of Prizes 355. 
 determined, in 1800, that the American ship Statira, cap- The case 
 tured by a British, and recaptured by a French cruiser, should Statira. 
 be restored to the original owner, although the cargo was 
 condemned as contraband or enemy's property. The sentence 
 of the Court was founded upon the conclusions of M. Portalis, 
 who stated that the recapture of foreign neutral vessels by 
 French cruisers, whether public ships or privateers, gave no 
 title to the retakers. The French prize-code only applied to 
 French vessels and goods recaptured from the enemy. Ac- 
 cording to the universal law of nations, a neutral vessel ought 
 to be respected by all nations. If she is unjustly seized by 
 the cruisers of any one belligerent nation, this is no reason 
 why another should become an accomplice in this act of in- 
 justice, or should endeavour to profit by it. From this maxim 
 it followed as a corollary that a foreign vessel, asserted to be 
 neutral, and recaptured by a French cruiser from the enemy, 
 ought to be restored on due proof of its neutrality. But, it 
 
 (/) Martens, Essai sur les Prises et les Reprises, 52. "Samajcstc a juge 
 pendant la derniere guerre, que la reprise du navire neutre faite par un cors lire 
 franais (lorsque le uavire n'etait pas charge de marcliandises prohibees, ni 
 dans le cas d'etre confisque par renuemi) etait uulle." Code dcs Prises, an 
 1784, torn. ii. 
 
 F F 2
 
 436 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 might be asked, why treat a foreign vessel with more favour 
 in this case than a French vessel ? The reason was obvious. 
 On the supposition on which the regulations relating to this 
 matter were founded, the French ship fallen into the hands 
 of the enemy would have been lost for ever, if it had not been 
 retaken ; consequently the recapture is a prize taken from the 
 enemy. If the case, however, be that of a foreign vessel, 
 asserted to be neutral, the seizure of this vessel by the enemy 
 does not render it ipso facto the property of the enemy, since 
 its confiscation has not yet been pronounced by the competent 
 judge ; until that judgment has been pronounced, the vessel 
 thus navigating under the neutral flag loses neither its 
 national character nor its rights. Although it has been 
 seized as prize of war, it may ultimately be restored to the 
 original owner. Under such circumstances, the recapture of 
 this vessel cannot transfer the property to the recaptor. The 
 question of neutrality remains entire, and must be determined, 
 before such a transmutation of property can take place. Such 
 was the language of all public jurists, and such was the 
 general usage of all civilized nations. It followed that the 
 vessel in question was not confiscable by the mere fact of its 
 having been captured by the enemy. Before such a sentence 
 could be pronounced, the French tribunal must do what the 
 enemy's tribunal would have done ; it must determine the 
 question of neutrality ; and that being determined in favour 
 of the claimant, restitution would follow of course (g). 
 366. To this general rule, however, an important exception has 
 wheTshT ^ een m& de, founded on the principle above quoted from the 
 might have Code des Prises, in the case where the vessel or cargo recap- 
 fiscatecTby t ure< l was practically liable to be confiscated by the enemy, 
 the enemy. J n that case, it is immaterial whether the property be justly 
 liable to be thus confiscated according to the law of nations ; 
 since that can make no difference in the meritorious nature 
 of the service rendered to the original owner by the recaptor. 
 For the ground upon which salvage is refused by the general 
 rule, is, that the prize court of the captor's country will duly 
 respect the obligations of that law ; a presumption which, in 
 the wars of civilized States, as they are usually carried on, 
 
 (g) Decision relative a la prise du navire Le Statira, 6 Thermidor, an 8, 
 pp. 2-4.
 
 RIGHTS OF AVAR AS BETWEEN ENEMIES. 437 
 
 each belligerent nation is bound to entertain in its dealings 
 with neutrals. But if, in point of fact, those obligations are 
 not duly observed by those tribunals, and, in consequence, 
 neutral property is unjustly subjected to confiscation in them, 
 a substantial benefit is conferred upon the original owner in 
 rescuing his property from this peril, which ought to be re- 
 munerated by the payment of salvage. It was upon this 
 principle that the Courts of Admiralty, both of Great Britain 
 and the United States, during the maritime war which was 
 terminated by the peace of Amiens, pronounced salvage to be 
 due upon neutral property retaken from French cruisers. 
 During the revolution in France, great irregularity and con- 
 fusion had arisen in the prize code formerly adopted, and had 
 crept into the tribunals of that country, by which neutral pro- 
 perty was liable to condemnation upon grounds both unjust 
 and unknown to the law of nations. The recapture of neutral 
 property which might have been exposed to confiscation by 
 means of this irregularity and confusion, was, therefore, con- 
 sidered by the American and British courts of prize, as a 
 meritorious service, and was accordingly remunerated by the 
 payment of salvage (7i). These abuses were corrected under 
 the consular government, and so long as the decisions of the 
 Council of Prizes were conducted by that learned and virtuous 
 magistrate, M. Portalis, there was no particular ground of 
 complaint on the part of neutral nations as to the practical 
 administration of the prize code until the promulgation of the 
 Berlin decree in 1806. This measure occasioned the excep- 
 tion to the rule as to salvage to be revived in the practice of the 
 British Courts of Admiralty, who again adjudged salvage to 
 be paid for the recapture of neutral property which was liable 
 to condemnation under that decree (*). It is true that the 
 decree had remained practically inoperative upon American 
 property, until the condemnation of the cargo of The Horizon 
 by the Council of Prizes, in October, 1807 ; and therefore it 
 may perhaps be thought, in strictness, that the English Court 
 of Admiralty ought not to have decreed salvage in the case of 
 
 (h) The War Onskan, 2 C. Rob. 299; Tlu. Eleonom C'atherina, 4 Ib. 156; 
 The Carlotta, 5 Ib. 64 ; Tlie Huntress, 6 Ib. 104; Talbot v. Seeman, 1 Cranch, 
 1; S. 0. 4 Dallas, 34. 
 
 (i) The Hansom, 6 C. Rob. 410; The Ackon, Edw. Ad. 254.
 
 438 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 The Sansom, more especially as the convention of 1800, 
 between the United States and France, was still in force, the 
 terms of which were entirely inconsistent with the provisions 
 of the Berlin decree. But as the cargo of The Horizon was 
 condemned in obedience to the imperial rescript of the 18th 
 September, 1807, having been taken before the capture of 
 The Sansom, whether that rescript be considered as an inter- 
 pretation of a doubtful point in the original decree, or as a 
 declaration of an anterior and positive provision, there can be 
 no doubt The Sansom would have been condemned under it ; 
 consequently a substantial benefit was rendered to the neutral 
 owner by the recapture, and salvage was due on the principle 
 of the exception to the general rule. And the same principle 
 might justly be successively applied to the prize proceedings 
 of all the belligerent powers during the last European war, 
 which was characterized by the most flagrant violations of the 
 ancient law of nations, which, in many cases, rendered the 
 rescue of neutral property from the grasp of their cruisers 
 and prize courts, a valuable service entitling the recaptor to a 
 remuneration in the shape of salvage. 
 
 367. 3. Lastly, the recapture may be made from an enemy* 
 from^ Tne J us postliminii was a fiction of the Roman law, by 
 enemy. which persons or things taken by the enemy were held to be 
 restored to their former state, when coming again under 
 the power of the nation to which they formerly belonged. It 
 was applied to free persons or slaves returning postliminii ; 
 and to real property and certain moveables, such as ships of 
 war and private vessels, except fishing and pleasure boats. 
 These things, therefore, when retaken, were restored to the 
 original proprietor, as if they had never been out of his control 
 and possession (&). Grotius attests, and his authority is sup- 
 ported by that of the Consolato del Mare, that by the ancient 
 maritime law of Europe, if the thing captured were carried 
 infra prcssidia of the enemy, the jus postLhninii was con- 
 sidered as forfeited, and the former owner was not entitled to 
 restitution. Grotius also states, that by the more recent law 
 established among the European nations, a possession of 
 twenty- four hours was deemed sufficient to divest the property 
 
 (k) Inst. lib. i. tit. 12; Dig. 1. 49, tit. 15. " Navis longisatque onerariis, 
 portliminium est, non piscatus aut voluptatis causa." Dig. 49,
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 439 
 
 of the original proprietor, even if the captured thing had not 
 been carried infra prcesidia (I), And Loccenius considers the 
 rule of twenty-four hours' possession as the general law of 
 Christendom at the time when he wrote (m). So, also, Byn- 
 kershoek states the general maritime law to be, that if a ship 
 or goods be carried infra prcesidia of the enemy, or of his ally, 
 or of a neutral, the title of the original proprietor is com- 
 pletely divested (11). 
 
 Sir W. Scott, in delivering the judgment of the English 368. 
 Court of Admiralty, in the case of The Santa Cruz and other amicable 
 Portuguese vessels recaptured, in 1796 and 1797, from the retaliation, 
 
 1 or recipro- 
 
 conmiou enemy by a British cruiser, stated that it was cer- city, 
 tainly a question of much curiosity to inquire what was the re 
 true rule on this subject. " When I say the true rule, I mean of the pro- 
 only the rule to which civilized nations, attending to just allies. 
 principles, ought to adhere ; for the moment you admit, as 
 admitted it must be, that the practice of nations is various, 
 you admit that there is no rule operating with the proper 
 force and authority of a general law. It may be fit there 
 should be some rule, and it might be either the rule 
 of immediate possession^ or the rule of pernoctation and 
 twenty-four hours' possession ; or it might be the rule of 
 bringing infra prcesidia ; or it might be a rule requiring an 
 actual sentence or condemnation : either of these rules might 
 be sufficient for general practical convenience, although in 
 theory perhaps one might appear more just than another ; but 
 the fact is that there is no such rule of practice. Nations 
 concur in principles, indeed, so far as to require firm and 
 secure possession ; but these rules of evidence respecting that 
 possession are so discordant, and lead to such opposite conclu- 
 sions, that the mere unity of principle forms no uniform rule 
 to regulate the general practice. But were the public opinion 
 
 (1) "Cui consequens esse videtnr, ut in mari naves, et res alise captae cen- 
 seantur turn demum, cum in navalia aut portus, aut ad eum locum ubi tola 
 classis se tenet, perducta sunt : nani tune desperari incipit recuperatio, sed 
 recentiori jure gentium inter Europseos populos introductum, videmus, ut talia 
 capta censeantur ubi per horas viginti quatuor in potestate liostium fuurint. " 
 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, 3. Consoiato del Mare, cap. 
 287, 1. Wheaton's Kep. vol. v. Appendix, p. 56. Ayala, de Jur. Bel. ac 
 Pac. cap. v. Wheaton's I list. Law of Nations, p. 45. 
 
 (in) Loccenius, de Jure Marit. lib. ii. cap. 4, 4. 
 
 (n) Bynkershoek, Qurest. Jur. Pub. lib. i. cap. 5.
 
 440 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 of European States more distinctly agreed on any principle, 
 as fit to form the rule of the law of nations on this subject, 
 it by no means follows that any one nation would lie under an 
 obligation to observe it. That obligation could only arise 
 from a reciprocity of practice in other nations ; for, from the 
 very circumstance of the prevalence of a different rule among 
 other nations, it would become not only lawful, but necessary 
 to that one nation to pursue a different conduct : for instance, 
 were there a rule prevailing among other nations, that the 
 immediate possession, and the very act of capture should 
 divest the property from the first owner, it would be absurd 
 in Great Britain to act towards them on a more extended 
 principle, and to lay it down as a general rule, that a bringing 
 infra pr&sidia, though probably the true rule, should in all 
 cases of recapture be deemed necessary to divest the original 
 proprietor of his right. The effect of adhering to such a rule 
 would be gross injustice to British subjects ; and a rule, from 
 which gross injustice must ensue in practice, can never be the 
 true rule of law between independent nations ; for it cannot be 
 supposed to be the duty of any country to make itself a martyr 
 to speculative propriety, were that established on clearer 
 demonstration than such questions will generally admit. 
 Where mere abstract propriety, therefore, is on one side, and 
 real practical justice on the other, the rule of substantial 
 justice must be held to be the true rule of the law of nations 
 between independent States. 
 
 369 ( " If I am asked, under the known diversity of practice on 
 
 Opinion of this subject, what is the proper rule for a State to apply to 
 Scott in the recaptured property of its allies ? I should answer that 
 ~Cruz Santa ^ e ^keral and rational proceeding would be to apply in the 
 first instance the rule of that country to which the recap- 
 tured property belongs. I admit the practice of nations is not 
 so ; but I think such a rule would be both liberal and just. 
 To the recaptured, it presents his own consent, bound up in 
 the legislative wisdom of his own country : to the recaptor, it 
 cannot be considered as injurious, where the rule of the 
 recaptured would condemn, whilst the rule of the recaptor 
 prevailing among his own countrymen would restore, it brings 
 an obvious advantage ; and even in case of immediate resti- 
 tution, under the rules of the recaptured, the recapturing
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 441 
 
 country would rest secure in the reliance of receiving recip- 
 rocal justice in its turn. 
 
 " It may be said, what if this reliance should be disap- 
 pointed ? Redress must then be sought from retaliation ; 
 which, in the disputes of independent States, is not to be 
 considered as vindictive retaliation, but as the just and equal 
 measure of civil retribution. This will be their ultimate 
 security, and it is a security sufficient to warrant the trust. 
 For the transactions of States cannot be balanced by minute 
 arithmetic ; something must, on all occasions, be hazarded 
 on just and liberal presumption. 
 
 " Or it may be asked, what if there is no rule in the 
 country of the recaptured ? I answer, first, this is scarcely 
 to be supposed ; there may be no ordinance, no prize acts 
 immediately applying to recapture ; but there is a law of 
 habit, a law of usage, a standing and known principle on the 
 subject, in all civilized commercial countries : it is the com- 
 mon practice of European States, in every war, to issue pro- 
 clamations and edicts on the subject of prize ; but till they 
 appear, Courts of Admiralty have a law and usage on which 
 they proceed, from habit and ancient practice, as regularly as 
 they afterwards conform to the express regulations of their 
 prize acts. But secondly, if there should exist a country in 
 which no rule prevails, the recapturing country must of 
 necessity apply its own rule, and rest on the presumption 
 that that rule will be adopted and administered in the future 
 practice of its allies. 
 
 " Again, it is said that a country applying to other 
 countries their own respective rules, will have a practice dis- 
 cordant and irregular : it may be so, but it will be a discord- 
 ance proceeding from the most exact uniformity of principle ; 
 it will be idem per diversa. If it is asked, also, will you adopt 
 the rules of Tunis and Algiers ? If you take the people of 
 Tunis and Algiers for your allies, undoubtedly you must ; 
 you must act towards them on the same rules of relative 
 justice on which you conduct yourselves towards other na- 
 tions. And upon the whole of these objections it is to be 
 observed, that a rule may bear marks of apparent inconsis- 
 tency, and yet contain much relative fitness and propriety ; a 
 regulation may be extremely unfit to be made, which yet shall
 
 442 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 370. 
 
 American 
 law adopts 
 the rule of 
 reciprocity 
 as to resti- 
 tution of 
 the pro- 
 perty of 
 friendly 
 nations, re- 
 captured 
 from an 
 enemy. 
 
 be extremely fit, and shall indeed be the only fit rule to be 
 observed towards other parties, who have originally esta- 
 blished it for themselves. 
 
 " So much it might be necessary to explain myself on the 
 mere question of propriety ; but it is much more material to 
 consider, what is the actual rule of the maritime law of 
 England on this subject. I understand it to be clearly this, 
 that the maritime law of England, having adopted a most 
 liberal rale of restitution or salvage with respect to the recap- 
 tured property of its own subjects, gives the benefit of that 
 rule to its allies, till it appears that they act towards British 
 property on a less liberal principle. In such a case, it adopts 
 their rule, and treats them according to their own measure of 
 justice. This I consider to be the true statement of the law 
 of England on this subject : It was clearly so recognised in 
 the case of The San Jago ; a case which was not, as it has 
 been insinuated, decided on special circumstances, nor on 
 novel principles, but on principles of established use and 
 authority in the jurisprudence of this country. In the dis- 
 cussion of that case, much attention was paid to an opinion 
 found among the manuscript collections of a very distin- 
 guished practitioner in this profession (Sir E. Simpson), 
 which records the practice and the rule as it was understood 
 to prevail in his time. The rule is : that England restores, 
 on salvage, to its allies ; but if instances can be given of 
 British property retaken by them and condemned as prize, 
 the Court of Admiralty will determine their cases according 
 to their own rule " (o). 
 
 The law of our own country proceeds on the same principle 
 of reciprocity, as to the restitution of vessels or goods be- 
 longing to friendly foreign nations, and recaptured from the 
 enemy by our ships of war. By the act of Congress of the 
 3rd March, 1800, ch. xiv. 3, it is provided that the vessels 
 or goods of persons permanently resident within the territory 
 and under the protection of any foreign government in amity 
 with the United States, and retaken by their vessels, shall be 
 restored to the owner, he paying, for salvage, such portion of 
 the value thereof, as by the law and usage of such foreign 
 governments shall be required of any vessel or goods of the 
 (o) Sir W. Scott, in The Santa Cruz, 1 0. Rob. pp. 58-63.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 443 
 
 United States under like circumstances of recapture ; and 
 where no such law or usage shall be known, the same salvage 
 shall be allowed as is provided in the case of the recapture of 
 the property of persons resident within, or under the protec- 
 tion of the United States. Provided that no such vessel or 
 goods shall be restored to such former owner, in any case 
 where the same shall have been condemned as prize by com- 
 petent authority, before the recapture ; nor in any case, where 
 by the law and usage of such foreign government, the vessels 
 or goods of citizens of the United States would not be restored 
 in like circumstances. 
 
 It becomes then material to ascertain what is the law of 371, 
 different maritime nations on the subject of recaptures ; and different 
 this must be sought for either in the prize code and judicial countries 
 decisions of each country, or in the treaties by which they are captures, 
 bound to each other. 
 
 The present British law of military salvage was established , 372 - 
 by the statutes of the 43rd Geo. III., ch. 160, and the 45th ]}** 
 Geo. III., ch. 72, which provide that any vessel or goods 
 therein, belonging to British subjects, and taken by the 
 enemy as prize, which shall be retaken, shall be restored to 
 the former owners, upon payment for salvage of one-eighth 
 part of the value thereof, if retaken by his Majesty's ships ; 
 and if retaken by any privateer, or other ship or vessel under 
 his Majesty's protection, of one sixth part of such value. 
 And if the same shall have been retaken by the joint opera- 
 tion of his Majesty's ships and privateers, then the proper 
 court shall order such salvage to be paid as shall be deemed 
 fit and reasonable. But if the vessel so retaken shall appear 
 to have been set forth by the enemy as a ship of war, then 
 the same shall not be restored to the former owners, but shall 
 be adjudged lawful prize for the benefit of the captors (p) t 
 
 The act of Congress of the 3rd March, 1800, ch. xiv. 1, 373. 
 2, provides that, in case of recaptures of vessels or goods be- i a w. en 
 longing to persons resident within, or under the protection of 
 the United States, the same not having been condemned as 
 prize ly competent authority, before the recapture, shall be 
 
 (p) [These Acts are now repealed (27 & 28 Viet. c. 23), and the Naval Prize 
 Act, 1864 (27 & 23 Viet. c. 25) re-enacts their provisions with some modifi- 
 cations. See also The Progress, Edw. Ad. 210, as to the valuation of a prize.]
 
 444 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 restored on payment of salvage of one-eighth of the value if 
 recaptured by a public ship ; and if the recaptured vessel 
 shall appear to have been set forth and armed as a vessel of 
 war before such capture, or afterwards, and before the recap- 
 ture, then the salvage to be one moiety of the value. If the 
 recaptured vessel previously belonged to the Government of 
 the United States and be unarmed, the salvage is one-sixth, 
 if recaptured by a private vessel, and one-twelfth, if recap- 
 tured by a public ship ; if armed, then the salvage to be one 
 moiety if recaptured by a private vessel, and one-fourth if re- 
 captured by a public ship. In respect to public armed ships, 
 the cargo pays the same rate of salvage as the vessel, by the 
 express words of the act ; but in respect to private vessels, 
 the rate of salvage (probably by some unintentional omission 
 in the act) is the same on the cargo, whether the vessel be 
 armed or unarmed (q). 
 
 It will be perceived, that there is a material difference 
 between the American and British laws on this subject ; the 
 Act of Parliament continuing the jus postliminii for ever 
 between the original owners and recaptors, even if there has 
 been a previous sentence of condemnation, unless the vessel 
 retaken appears to have been set forth by the enemy as a ship 
 of war ; whilst the act of Congress continues the jus postli- 
 minii until the property is divested by a sentence of condem- 
 nation in a competent court, and no longer ; which was also 
 the maritime law of England, until the statute stepped in, 
 and, as to British subjects, revived the jus postliminii of the 
 original owner. 
 
 374. By the more recent French law on the subject of recap - 
 French tures, if a French vessel be retaken from the enemy after being 
 in his hands more than twenty-four hours, it is good prize 
 to the recaptor ; but if retaken before twenty-four hours have 
 elapsed, it is restored to the owner, with the cargo, upon the 
 payment of one-third the value for salvage, in case of recap- 
 ture by a privateer, and one-thirtieth in case of recapture by 
 a public ship. But in case of recapture by a public ship, after 
 twenty-four hours' possession, the vessel and cargo are restored 
 on a salvage of one-tenth. 
 
 Although the letter of the ordinances, previous to the revo- 
 (q) The Adeline, 9 Crunch, 244. [See U. S. Eevised Statutes, tit. Prize.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 445 
 
 lution, condemned as good prize, French property recaptured 
 after being twenty-four hours in possession of the enemy, 
 whether the same be retaken by public or private armed 
 vessels ; yet it seems to have been the constant practice in 
 France to restore such property when recaptured by the 
 king's ships (r). The reservation contained in the ordinance 
 of the 15th of June, 1779, by which property recaptured 
 after twenty-four hours' possession by the enemy, was con- 
 demned to the crown, which reserved to itself the right of 
 granting to the recaptors such reward as it thought fit, made 
 the salvage discretionary in every case, it being regulated by 
 the king in council according to circumstances (s). 
 
 France applies her own rule to the recapture of the property 
 of her allies. Thus, the Council of Prizes decided on the 9th 
 February, 1801, as to two Spanish vessels recaptured by a 
 French privateer after the twenty-four hours had elapsed, 
 that they should be' condemned as good prize by the recaptor. 
 Had the recapture been made by a public ship, whether before 
 or after twenty-four hours' possession by the enemy, the pro- 
 perty would have been restored to the original owner, ac- 
 cording to the usage with respect to French subjects, and on 
 account of the intimate relation subsisting between the two 
 powers (). 
 
 The French law also restores, on payment of salvage, even 
 after twenty-four hours' possession by the enemy, in cases 
 where the enemy leaves the prize a derelict, or where it 
 reverts to the original proprietor in consequence of the perils 
 of the seas, without a military recapture. Thus the Marine 
 Ordinance of Louis XIV., of 1681, liv. iii. tit. 9, art. 9, pro- 
 vides that, " if the vessel, without being recaptured, is 
 abandoned by the enemy, or if in consequence of storms or 
 other accident, it comes into the possession of our subjects, 
 before it has been carried into an enemy's port (avant qu'il 
 ait ete conduit dans aucun port ennemi) ; it shall be restored 
 to the proprietor, who may claim the same within a year and 
 
 (r) Valin, sur 1'Ord. liv. iii. tit. 9, art. 3. Traite des .Prises, ch. 6, 1, 
 No. 8, 88. Pothier, Traite de Propriete, No. 97. Eme'rigon, des Assu- 
 rances, torn i. p. 497. 
 
 (s) Emerigon, des Assurances, torn i. p. 497. 
 
 (t) Pothier, de Propriete, No. 100. Emerigon, torn. i. p. 499. A/uni, Droit 
 Maritime de 1'Europe, Partie ii. ch. 4, 11.
 
 446 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 a day, although it has been more than twenty-four hours in 
 the possession of the enemy." Pothier is of opinion that the 
 above words, avant qu'il ait ete conduit dans aucun port 
 cnnemi, are to be understood, not as restricting the right of 
 restitution to the particular case mentioned of a vessel aban- 
 doned by the enemy before being carried into port, which 
 case is mentioned merely as an example of what ordinarily 
 happens, " parceque c'est le cas ordinaire auquel un vaisseau 
 echappe a 1'ennemi qui 1'a pris, ne pouvant pas gueres lui 
 echapper lorsqu'il a ete conduit dans ses ports " (). But 
 Valin holds, that the terms of the ordinance are to be literally 
 construed, and that the right of the original proprietor is 
 completely divested by the carrying into an enemy's port. 
 He is also of opinion that this species of salvage is to be 
 likened to the case of shipwreck, and that the recaptors are 
 entitled to one-third of the value of the property saved (x). 
 Azuni contends that the rule of salvage in this case is not 
 regulated by the ordinance, but is discretionary, to be pro- 
 portioned to the nature and extent of the service performed, 
 which can never be equal to the rescue of property from the 
 hands of the enemy by military force, or to the recovery of 
 goods lost by shipwreck (y). Emerigon is also opposed to 
 Valin on this question (z). 
 375 - Spain formerly adopted the law of France as to recaptures, 
 
 Spanish , . , i -. 
 
 law. having borrowed its prize code from that country ever since 
 
 the accession of the house of Bourbon to the Spanish throne. 
 In the case of The San Jago (mentioned in that of The Santa 
 Cruz, before cited), the Spanish law was applied, upon the 
 principle of reciprocity, as the rule of British recapture of 
 Spanish property. But by the subsequent Spanish prize 
 ordinance of the 20th of June, 1801, art. 38, it was modi- 
 fied as to the property of friendly nations ; it being provided 
 that when the recaptured ship is not laden for enemy's 
 account, it shall be restored, if recaptured by public vessels, 
 for one-eighth, if by privateers for one-sixth salvage : pro- 
 vided that the nation to which such property belongs has 
 
 () Pothier, de Propriete, No. 99. 
 (x) Valiu, sur 1'Ord. in loco. 
 
 (y) Azuni, Droit Maritime, Partie ii. ch. 4, 8, 9. 
 
 (z) Emerigon, des Assurances, torn. i. pp. 504 505. He cites in support 
 of his opinion the Consolato del Mare, cap. 287, and Targa, cap. 46, No. 10.
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 447 
 
 adopted, or agrees to adopt, a similar conduct towards Spain. 
 The ancient rule is preserved as to recaptures of Spanish 
 property ; it being restored without salvage, if recaptured hy 
 a king's ship before or after twenty-four hours' possession ; 
 and if recaptured by a privateer within that time, upon pay- 
 ment of one-half for salvage ; if racaptured after that time, 
 it is condemned to the recaptors. The Spanish law has the 
 same provisions with the French in cases of captured pro- 
 perty becoming derelict, or reverting to the possession of the 
 former owners by civil salvage. 
 
 Portugal adopted the French and Spanish law of recaptures, 376. 
 in her ordinances of 1704 and 1796. But in May, 1797, ^ UgUCSe 
 after The Santa Cruz was taken, and before the judgment of 
 the English High Court of Admiralty was pronounced in that 
 case, Portugal revoked her former rule by which twenty-four 
 hours' possession by the enemy divested the property of the 
 former owner, and allowed restitution after that time, on 
 salvage of one-eighth, if the capture was by a public ship, 
 and one-fifth if by a privateer. In The Santa Cruz and its 
 fellow cases, Sir W. Scott distinguished between recaptures 
 made before and since the ordinance of May, 1797 ; condemn- 
 ing the former where the property had been twenty-four hours 
 in the enemy's possession, and restoring the latter upon pay- 
 ment of the salvage established by the Portuguese ordinance. 
 
 The ancient law of Holland regulated restitution on the 377. 
 payment of salvage at different rates, according to the length Dutch law- 
 of time the property had been in the enemy's possession (a). 
 
 The ancient law of Denmark condemned after twenty-four 378. 
 hours' possession by the enemy, and restored, if the property j^"* 
 had been a less time in the enemy's possession, upon 
 payment of a moiety of the value as salvage. But the ordi- 
 nance of the 28th March, 1810, restored Danish or allied 
 property without regard to the length of time it might have 
 been in the enemy's possession, upon payment of one-third 
 the value. 
 
 By the Swedish ordinance of 1788, it is provided, that the 379. 
 rates of salvage on Swedish property shall be one-half the ^ dlsh 
 value, without regard to the length of time it may have been 
 in the enemy's possession. 
 
 (a) Bynkershoek, Quscst. Jur. Pub. lib. i. cap. 5.
 
 448 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 380. 
 
 What con- 
 stitutes a 
 "setting 
 forth as a 
 vessel of 
 war," 
 under the 
 Prize Act. 
 
 381. 
 
 Recapture 
 by a non- 
 commis- 
 sioned 
 
 What constitutes a setting forth as a vessel ofwarh&s been 
 determined by the British Courts of Prize, in cases arising 
 under the clause in the Act of Parliament, which may serve 
 for the interpretation of our own law, as the provisions are the 
 same in both. Thus it has been settled, that where a ship 
 was originally armed for the slave-trade, and after capture an 
 additional number of men were put on board, but there was no 
 commission of war, and no additional arming, it was not a 
 setting forth as a vessel of war under the act (b). But a com- 
 mission of war is decisive if there be guns on board (c). And 
 where the vessel, after the capture, has been fitted out as a 
 privateer, it is conclusive against her, although when recap- 
 tured, she is navigating as a mere merchant ship ; for where 
 the former character of a captured vessel had been obliterated 
 by her conversion into a ship of war, the legislature meant to 
 look no further, but considered the title of the former owner 
 for ever extinguished (d). Where it appeared that the vessel 
 had been engaged in the military service of the enemy, under 
 the direction of his minister of the marine, it was held as a 
 sufficient proof of a setting forth as a vessel of war(e). So 
 where the vessel is armed, and is employed in the public mili- 
 tary service of the enemy by those who have competent 
 authority so to employ it, although it be not regularly com- 
 missioned^). But the mere employment in the enemy's 
 military service is not sufficient ; but if there be a fair sem- 
 blance of authority in the person directing the vessel to be so 
 employed, and nothing upon the face of the proceedings to 
 invalidate it, the court will presume that he is duly authorized ; 
 and the commander of a single ship may be presumed to be 
 vested with this authority as commander of a squadron (g). 
 
 It is no objection to an allowance of salvage on a recapture, 
 that it was made by a non-commissioned vessel ; it is the duty 
 of every citizen to assist his fellow- citizens in war, and to 
 retake their property out of the enemy's possession ; and no 
 commission is necessary to give a person so employed a title 
 
 (b) The, Horatio, 6 C. Rob. 320. 
 
 (c) The Ceylon, 1 Dods. Ad. 105. 
 
 (d) Tlie Actif, Edw. Ad. 185. 
 
 (e) The Santa Brigada, 3 C. Rob. 65. 
 (f)The Ceylon, I Dods. Ad. 105. . 
 (g) The tieorgiana, lb., 397.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 44-9 
 
 to the reward which the law allots to that meritorious act of 
 duty (h). And if a convoying ship recaptures one of the 
 convoy, which has been previously captured by the enemy, the 
 recaptors are entitled to salvage (i). But a mere rescue of a 
 ship engaged in the same common enterprise gives no right to 
 salvage (k). 
 
 To entitle a party to salvage, as upon a recapture, there A J J 8 ' 
 must have been an actual or constructive capture ; for military rescue 
 salvage will not be allowed in any case where the property has ^miiitar 
 not been actually rescued from the enemy (I). But it is not salvage for 
 necessary that the enemy should have actual possession ; it is recap ure ' 
 sufficient if the property is completely under the dominion of 
 the enemy (rw). If, however, a vessel be captured going in 
 distress into an enemy's port, and is thereby saved, it is 
 merely a case of civil and not of military salvage (n). But to 
 constitute a recapture, it is not necessary that the recaptora 
 should have a bodily and actual possession ; it is sufficient if 
 the prize be actually rescued from the grasp of the hostile 
 captor (o). Where a hostile ship is captured, and afterwards 
 recaptured by the enemy, and again recaptured from the 
 enemy, the original captors are not entitled to restitution on 
 paying salvage, but the last captors are entitled to the whole 
 rights of prize ; for, by the first recapture, the right of the 
 original captors is entirely divested (p). Where the original 
 captors have abandoned their prize, and it is subsequently 
 captured by other parties, the latter are solely entitled to the 
 property (q). But if the abandonment be involuntary, and 
 produced by the terror of superior force, and especially if pro- 
 duced by the act of the second captors, the rights of the 
 original captors are completely revived (r). And where the 
 enemy has captured a ship, and afterwards deserted the cap- 
 
 (h) The Helen, 3 C. Rob. 224. 
 
 (i) The Wight, 6 Ib. 315. 
 
 (k) The Belle, Edw. Ad. 66. 
 
 (I) The Franklin, 4 C. Rob. 147. 
 
 (m) The Edward and Mary, 3 Ib. 305 ; The Pensamenlo Felix, Edw. Ad. 
 116. 
 
 (n) The Franklin, 4 C. Rob. 147. 
 
 (o) The Edward and Mary, 3 Ib. 305. 
 
 (p) 4 C. Rob. 217, Note a. The Astrea, 1 Wheaton, 125. Valin, sur 
 1'Ord. torn. ii. pp. 257259. Traite des Prises, ch. 6, 1. Pothier, de Pro- 
 priete, No. 99. 
 
 (q) The Lord Nelson, Edw. Ad. 79. The Diligentia, 1 Dods. Ad. 404. 
 
 (r) The Mary, 2 Wheaton, 123.
 
 450 RIGHTS OF WAR AS BETWEEN ENEMIES, 
 
 tured vessel, and it is then recaptured, this is not to be 
 considered as a case of derelict ; for the original owner never 
 had the animus delinquendi, and therefore it is to be restored 
 on payment of salvage ; but as it is not strictly a recapture 
 within the prize act, the rate of salvage is discretionary (s). 
 But if the abandonment by the enemy be produced by the 
 terror of hostile force, it is a recapture within the terms of the 
 act(i). Where the captors abandon their prize, and it is 
 afterwards brought into port by neutral salvors, it has been 
 held that the neutral Court of Admiralty has jurisdiction to 
 decree salvage, but cannot restore the property to the original 
 belligerent owners ; for by the capture, the captors acquired 
 such a right of property as no neutral nation can justly im- 
 pugn or destroy, and, consequently, the proceeds, (after 
 deducting salvage,) belong to the original captors ; and neutral 
 nations ought not to inquire into the validity of a capture 
 between belligerents (u). But if the captors make a donation 
 of the captured vessel to a neutral crew, the latter are entitled 
 to a remuneration as salvors ; but after deducting salvage, the 
 remaining proceeds will be decreed to the original owner (x). 
 And it seems to be a general rule, liable to but few exceptions, 
 that the rights of capture are completely divested by a hostile 
 recapture, escape, or voluntary discharge of the captured 
 vessel (?/). And the same principle seems applicable to a 
 hostile rescue, but if the rescue be made by the neutral crew 
 of a neutral ship, it may be doubtful how far such an illegal 
 act, which involves the penalty of confiscation, would be held, 
 in the prize courts of the captor's country, to divest his 
 original right in case of a subsequent recapture. 
 
 382 a. An interesting illustration of the law respecting the rescue of a cap- 
 Case of tured neutral ship by part of her own crew occurred during the 
 American civil war. The Emily St. Pierre, a British ship, was on. a 
 voyage from Calcutta with orders to make the coast of South Carolina, 
 and ascertain whether it was still under blockade. If so, she was to go 
 to New Brunswick ; if not, she was to enter Charlestown harbour. She 
 had no contraband on board. While heading for Charlestown, and 
 
 (s) The John and Jam, 4 C. Rob. 216. 
 (0 The Gage, 6 Ib. 273. 
 (u) The Mary Ford, 3 Dallas, 188. 
 (*) The Adventure, 8 Cranch, 227. 
 
 (y) Hudson v. Guestier, 4 Cranch, 293; S. C. 6 Ib. 281; The Dillgentia, 
 1 Dods. Ad. 404.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 451 
 
 about ten or twelve miles from shore, she was seized by one of the 
 blockading cniisers, on the 18th March, 1862. Her crew were taken out, 
 except the master, cook, and steward, who were kept on board to give 
 evidence before a Prize Court. Two officers and thirteen men were put 
 on board, and ordered to take her to Philadelphia. On their way 
 thither, the three prisoners rose against their captors, disarmed and 
 secured them, and, with the assistance of three or four of the prize crew, 
 who volunteered to lend a hand rather than remain confined, but who 
 were all landsmen, managed to take her to Liverpool. Mr. Adams 
 demanded the restitution of this vessel, and cited the cases of The 
 Catherine Elizabeth (z) and The Despatch (a), as evidence of Lord Stowell's 
 condemnation of such a proceeding. Lord Russell, however, declined to 
 seize the ship and give her up to the United States, on the ground that 
 Her Majesty's government had no jurisdiction or legal power to take or 
 to acquire possession of her, or to interfere with her owners in relation 
 to their property in her (6). "Acts of forcible resistance," said his 
 Lordship, "to the rights of belligerents, when lawfully exercised over 
 neutral merchant ships on the high seas, such, for instance, as rescue 
 from capture, however cognisable or punishable as offences against inter- 
 national law, in the Prize Courts of the captor administering such law, 
 are not cognisable by 'the municipal law of England, and cannot by 
 that law be punished either by confiscation of the ship, or by any other 
 penalty ; and Her Majesty's government cannot raise in an English 
 court the question of the validity of the capture of The Emily St. Pierre, 
 or of the subsequent rescue and recapture of that vessel, for such recap- 
 ture is not an offence against the municipal law of this country " (c). The 
 discussion ended by its being discovered that in 1800, England had asked 
 the United States to do precisely the same thing, and that the American 
 government had refused to comply on the very grounds put forward by 
 Lord Russell (rf). It may therefore be taken as a settled point, that if a 
 neutral vessel is captured by a belligerent cruiser, and before condemna- 
 tion she manages to escape and reach her own country, the neutral 
 government is not bound to surrender her to that of the captor. 
 
 As to recaptors, although their right to salvage is extin- 333. 
 guished by a subsequent hostile recapture and regular sentence Salva | e n 
 of condemnation, divesting the original owners of their pro- capture. 
 perty, yet if the vessel be restored upon such recapture, and 
 resume her voyage, either in consequence of a judicial ac. 
 quittal, or a release by the sovereign power, the recaptors are 
 redintegrated in their right of salvage (e). And recaptors 
 
 (z) [5 C. Rob. 232.] 
 
 (a) [3 C. Rob. 278.] 
 
 (b) [Earl Russell to Mr. Adams, 7tb May, 1862. U. S. Dipl. Cor. 1862, 
 p. 87.] 
 
 (c) [Ibid.] 
 
 (d) [U. S. Dipl. Cor. 1862, p. 113.] 
 
 (e) The Charlotte Caroline, 1 Dods. Ad. 192. 
 
 r, o 2
 
 452 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 and salvors have a legal interest in the property, which can- 
 not be divested by other subjects, without an adjudication in 
 a competent court ; and it is not for the government's ships 
 or officers, or for other persons, upon the ground of superior 
 authority, to dispossess them without cause (/). 
 334. In all cases of salvage where the rate is not ascertained by 
 Rate of positive law, it is in the discretion of the Court, as well upon 
 recaptures as in other cases (g). And where, upon a recap- 
 ture, the parties have entitled themselves to a military 
 salvage, under the Prize Act, the Court may also award them, 
 in addition, a civil salvage, if they have subsequently rendered 
 extraordinary services in rescuing the vessel in distress from 
 the perils of the seas (h). 
 
 384 a. All parties who have been instrumental in capturing property are en- 
 Joint cap- titled to share in the proceeds as joint captors. In naval warfare there 
 ri^e * s a Distinction between the rights of privateers and those of public ships 
 
 with regard to joint capture. A public ship, when in sight at the time 
 the prize is taken, is considered as constructively assisting, and therefore 
 entitled to share in the capture, while a privateer under similar circum- 
 stances is not regarded as a joint captor, unless she directly contributes 
 to the seizure (i). This is founded upon the fact that privateers, being 
 fitted out for private gain, are not bound to put their commissions in use 
 on every discovery of the enemy, whereas public ships, being under a 
 constant obligation to attack when the enemy comes in sight, are pre- 
 sumed to be there animo capiendi (k). As a rule, when ships are asso- 
 ciated in the same enterprize and under the same superior officer, all are 
 entitled to share as joint captors, it being then only necessary to prove 
 what ships actually formed part of the fleet at the time of capture (Z). If, 
 however, a part of the fleet is detached on a separate service, or if the 
 detached vessels are out of the scene of the common operations for the 
 time, the prize then belongs to the actual captors alone (m). During the 
 Crimean war, France and England agreed, (1), that a joint capture made 
 by the naval forces of both countries should be adjudicated on in the 
 country of the highest naval officer concerned in the capture, and, (2), 
 
 (/) The Slendenhale, 1 Dods. Ad. 414. 
 
 (g) TaLbot v. Seeman, 1 Cranch, 1 ; 3 C. Rob. 308 ; Bynkershoek, Qusest. 
 Jur. Pub. lib. i. cap. 5. 
 
 (h) The Louisa, 1 Dods. Ad. 317. [Jecker \. Montgomery, 13 Howard, 
 515.] 
 
 (i) [Phillimore, vol. iii. 388. The Dordrecht, 2 C. Rob. 55. Talbot v. 
 Three Briggs, 1 Dallas, 103. The Forsighcid, 3 C. Rob. 311.] 
 
 (k) [Halleck, ch. xxx. 7. The Santa Brigada, 3 C. Rob. 52.] 
 
 (1) [The Guillaume Tell, Edw. Ad. 6. Halleck, ch. xxx. 11. Philli- 
 more, vol. iii. 398. The Forsigheid, 3 C. Rob. 311.] 
 
 (m) [Philiimore, vol. iii. 398. The Forsigheid, 3 C. Rob. 311. Ships of 
 war are entitled to share in all captures made by their tenders. The Carl, 
 2 Spinks, 261.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 453 
 
 that in the case of a capture made by the cruiser of one nation, in sight 
 of a cruiser of the other, such cruiser having thus contributed to the 
 intimidation of the enemy, the adjudication thereof should belong to the 
 jurisdiction of the actual captor (). 
 
 The rights of joint captors on land are not the same as those of naval 3 
 captors. Joint captors are those who have assisted, or are taken to have t |." ai> " 
 assisted, the actual captors by conveying encouragement to them, or booty, 
 intimidation to the enemy. On land the union of the joint captor with 
 the actual captor under the command of the same officer, alone consti- 
 tutes the bond of association which the law recognizes as a title to joint 
 sharing. Community of enterprize does not constitute association, and 
 is equally insufficient as a ground for joint sharing, if the bond of union, 
 though originally well constituted, has ceased to be in force at the time 
 of the capture. The distinctions between captures on land and captures 
 at sea tend to show that in considering joint capture of booty, a wider 
 application than is recognized in prize cases must be allowed to the term 
 " co-operation," concerted action on a vaster scale than is feasible at sea 
 being indispensable to a campaign. The rule of sight, too, which pre- 
 vails at sea is inapplicable on land. The general rule for the distribution 
 of booty, to be adhered to as far as possible, in accordance with naval 
 prize decisions, is the rule of actual capture. The association entitling 
 to joint sharing must be military, and not political, and must be under 
 the immediate command of the same commander. The co-operation 
 which is necessary as a title to joint sharing, is a co-operation tending 
 directly to produce the capture in question (o). 
 
 The validity of maritime captures must be determined in a 385. 
 
 Court of the captor's government, sitting either in his own m aritiiL 
 
 country or in that of its ally. This rule of jurisdiction ap- captures 
 
 plies, whether the captured property be carried into a port of i n the 
 
 the captor's country, into that of an ally, or into a neutral port. ^"^ * r . 
 
 Respecting the first case, there can be no doubt. In the country. 
 
 second case, where the property is carried into the port of an 386 - 
 
 ally, there is nothing to prevent the government of the country, tion of 
 
 although it cannot itself condemn, from permitting the exer- P r .P ert y 
 
 cise of that final act of hostility, the condemnation of the the ports 
 property of one belligerent to the other ; there is a common 
 interest between the two governments, and both may be pre- 
 sumed to authorize any measures conducing to give effect to 
 their arms, and to consider each other's ports as mutually 
 subservient. Such an adjudication is therefore sufficient, in 
 
 (n) [Convention of 20th May, 1854. As to the proceedings of joint cap- 
 tors in the Admiralty Court, see the Naval Prize Act, 1864, Appendix D.] 
 
 (o) [The Banda and Kirwee Booty, L. R. 1 A. & E. 109, where the law re- 
 specting capture of property by land and sea is fully discussed. Bee also 
 Report of Commissioners to inquire into the distribution of Army Prize, 1864.]
 
 454 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 regard to property taken in the course of the operations of a 
 common war. 
 
 387. |j u t where the property is carried into a neutral port, 
 carried into it may appear, on principle, more doubtful whether the 
 port. * 1 * 1 validity of a capture can be determined even by a Court of 
 Prize established in the captor's country ; and the reasoning 
 of Sir W. Scott, in the case of The Henrick and Maria, is 
 certainly very cogent, as tending to show the irregularity of 
 the practice ; but he considered that the English Court of 
 Admiralty had gone too far in its own practice of condemn- 
 ing captured vessels lying in neutral ports, to recall it to the 
 proper purity of the original principle. In delivering the 
 judgment of the Court of Appeals in the same case, Sir 
 William Grant also held that Great Britain was concluded, by 
 her own inveterate practice, and that neutral merchants were 
 sufficiently warranted in purchasing under such a sentence of 
 condemnation, by the constant adjudications of the British 
 tribunals. The same rule has been adopted by the Supreme 
 Court of the United States, as being justifiable on principles 
 of convenience to belligerents as well as neutrals ; and though 
 the prize was in fact within a neutral jurisdiction, it was still 
 to be considered as under the control of the captor, whose 
 possession is considered as that of his sovereign ( p). 
 388. This jurisdiction of the national courts of the captor, to 
 Junsdic- determine the validity of captures made in war under the 
 courts of authority of his government, is exclusive of the judicial 
 Low C far r ' au ^hority of every other country, with two exceptions only : 
 exclusive. 1. Where the capture is made within the territorial limits of 
 a neutral State. 2. Where it is made by armed vessels fitted 
 out within the neutral territory (q). 
 
 In either of these cases, the judicial tribunals of the neutral 
 State have jurisdiction to determine the validity of the cap- 
 tures thus made, and to vindicate its neutrality by restoring 
 the property of its own subjects, or of other States in amity 
 with it, to the original owners. These exceptions to the 
 exclusive jurisdiction of the national courts of the captor, 
 
 (p) 4 C. Bob. 43, and 6 Ib. 138, note (a). Bynkershoek, Qusest. Jur. Pub. 
 lib. i. cap. 5. Duponceau's Transl. Note, p. 38. Kent's Commentaries on 
 American Law, vol. i. p. 103. Wheaton's Hist. Law of Nations, p. 321. 
 [The Polka, 1 Spinks, 447.] 
 
 (3) The Estrella, 4 Wheaton, 298. The Santissima Trinidad, 7 Ib. 283.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 455 
 
 have been extended by the municipal regulations of some 
 countries to the restitution of the property of their own sub- 
 jects, in all cases where the same has been unlawfully cap- 
 tured, and afterwards brought into their ports ; thus assuming 
 to the neutral tribunal the jurisdiction of the question of 
 prize or no prize, wherever the captured property is brought 
 within the neutral territory. Such a regulation is contained 
 in the marine ordinance of Louis XIV., of 1681, and its 
 justice is vindicated by Valin, upon the ground that this is 
 done by way of compensation for the privilege of asylum 
 granted to the captor and his prizes in the neutral port. There 
 can be no doubt that such a condition may be expressly 
 annexed by the neutral State to the privilege of bringing 
 belligerent prizes into its ports, which it may grant or refuse 
 at its pleasure, provided it be done impartially to all the 
 belligerent powers ; but such a condition is not implied in a 
 mere general permission to enter the neutral ports. The 
 captor, who avails himself of such a permission, does not 
 thereby lose the military possession of the captured property, 
 which gives to the Prize Courts of his own country exclusive 
 jurisdiction to determine the lawfulness of the capture. This 
 jurisdiction may be exercised either whilst the captured pro- 
 perty is lying in the neutral port, or the prize may be carried 
 thence infra prcesidia of the captor's country where the tri- 
 bunal is sitting. In either case, the claim of any neutral pro- 
 prietor, even a subject of the State into whose ports the 
 captured vessel or goods may have been carried, must, in 
 general, be asserted in the Prize Court of the belligerent 
 country, which alone has jurisdiction of the question of prize 
 or no prize (r). 
 
 This jurisdiction cannot be exercised by a delegated autho- 389. 
 rity in the neutral country, such as a consular tribunal sitting tion d by ma ~ 
 in the neutral port, and acting in pursuance of instructions consular 
 from the captor's State. Such a judicial authority, in the sitting in 
 matter of prize of war, cannot be conceded by the neutral 
 State to the agents of a belligerent power within its own 
 territory, where even the neutral government itself has no 
 
 (r) Valin, Comment, sur 1'Ordon. de la Marine, liv. iii. tit 9. Des Prises, 
 art. 15, torn. ii. p. 274. Lampredi, Trattato del Commercio de Popoli Neutrali 
 in Tempo de Guerra, p. 228.
 
 456 
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 390. 
 
 Responsi- 
 bility of 
 the captor's 
 govern- 
 ment for 
 the acts of 
 its com- 
 missioned 
 cruisers 
 and courts. 
 
 391. 
 
 Unjust 
 sentence of 
 a foreign 
 court, 
 ground of 
 reprisals. 
 
 right to exercise such a jurisdiction, except in cases where its 
 own neutral jurisdiction and sovereignty have been violated 
 by the capture. A sentence of condemnation, pronounced by 
 a belligerent consul in a neutral port, is, therefore, considered 
 as insufficient to transfer the property in vessels or goods 
 captured as prize of war, and carried into such port for 
 adjudication (s). 
 
 The jurisdiction of the Court of the capturing nation is 
 conclusive upon the question of property in the captured 
 thing. Its sentence forecloses all controversy respecting the 
 validity of the capture, as between claimant and captors, and 
 those claiming under them, and terminates all ordinary judi- 
 cial inquiry upon the subject-matter. But where the respon- 
 sibility of the captors ceases, that of the State begins. It is 
 responsible to other States for the acts of the captors under 
 its commission, the moment these acts are confirmed by the 
 definitive sentence of the tribunals which it has appointed to 
 determine the validity of captures in war. 
 
 Grotius states that a judicial sentence, plainly against right 
 (in re minime dubia), to the prejudice of a foreigner, entitles 
 his nation to obtain reparation by reprisals: "For the 
 authority of the judge (says he) is not of the same force 
 against strangers as against subjects. Here is the difference : 
 subjects are bound up and concluded by the sentence of the 
 judge, though it be unjust, so that they cannot lawfully 
 oppose its execution, nor by force recover their own right, 
 on account of the controlling efficacy of that authority under 
 which they live. But strangers have coercive power (that is, 
 of reprisals, of which the author is treating,) though it be 
 not lawful to use it so long as they can obtain their right in 
 the ordinary course of justice " (t). 
 
 So, also, Bynkershoek, in treating the same subject, puts 
 an unjust judgment upon the same footing with naked 
 
 (s) The Flad Oyen, 1 C. Rob. 135. 
 
 (t) " Quod fieri intelligitur non tantum si in sontem aut debitorem judicium 
 intra tempus idoneum obtineri nequeat, verum etiam si in re minime dubia 
 (nam in dubia re praesumptio est pro his qui ad judicia publice electi sunt) 
 plane contra jus judicatum sit. Nam auctoritas judicantis non idem in exte- 
 
 ros quod in subditos valet Hoc interest, quod subditi exsecu- 
 
 tionem etiam injustae sententiae vi impedire, aut contra earn jus sutim vi 
 exsequi licite non possunt, ob imperii in ipsos efficaciam : exteri autem jus 
 habent oogendi, sed quo uti non liceat quamdiu per judicium, suum possint 
 obtinere. " Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 2, 5, No. 1.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 457 
 
 violence, in authorizing reprisals on the part of the State 
 whose subjects have been thus injured by the tribunals of 
 another State. And Vattel, in enumerating the different 
 modes in which justice may be refused, so as to authorize 
 reprisals, mentions " a judgment manifestly unjust and 
 partial ; " and though he states what is undeniable, that the 
 judgments of the ordinary tribunals ought not to be called 
 in question upon frivolous or doubtful grounds, yet he is 
 manifestly far from attributing to them that sanctity which 
 would absolutely preclude foreigners from seeking redress 
 against them (). 
 
 These principles are sanctioned by the authority of 
 numerous treaties between the different powers of Europe 
 regulating the subject of reprisals, and declaring that they 
 shall not be granted unless in case of the denial of justice. 
 An unjust sentence must certainly be considered a denial of 
 justice, unless the mere privilege of being heard before con- 
 demnation is all that is included in the idea of justice. 
 
 Even supposing that unjust judgments of municipal .. 392 ; 
 tribunals do not form a ground of reprisals, there is evidently between 
 a wide distinction in this respect between the ordinary m . unici P al 
 tribunals of the State, proceeding under the municipal law and Courts 
 as their rule of decision, and prize tribunals, appointed by of e> 
 its authority, and professing to administer the law of nations 
 to foreigners as well as subjects. The ordinary municipal 
 tribunals acquire jurisdiction over the person or property of a 
 foreigner by his consent, either expressed by his voluntarily 
 bringing the suit, or implied by the fact of his bringing his 
 person or property within the territory. But when Courts of 
 Prize exercise their jurisdiction over vessels captured at sea, 
 the property of foreigners is brought by force within the 
 territory of the State by which those tribunals are con- 
 stituted. By natural law, the tribunals of the captor's 
 country are no more the rightful exclusive judges of captures 
 in war, made on the high seas from under the neutral flag, 
 than are the tribunals of the neutral country. The equality 
 of nations would, on principle, seem to forbid the exercise 
 of a jurisdiction thus acquired by force and violence, and 
 
 (u) Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 24. Vattel, Droit des 
 Gens, liv. ii. ch. 18, 350.
 
 458 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 administered by tribunals which cannot be impartial between 
 the litigating parties, because created by the sovereign of the 
 one to judge the other. Such, however, is the actual con- 
 stitution of the tribunals, in which, by the positive inter- 
 national law, is vested the exclusive jurisdiction of prizes 
 taken in war. But the imperfection of the voluntary law of 
 nations, in its present state, cannot oppose an effectual bar 
 to the claim of a neutral government seeking indemnity for 
 its subjects who have been unjustly deprived of their property, 
 under the erroneous administration of that law. The institu- 
 tion of these tribunals, so far from exempting, or being 
 intended to exempt, the sovereign of the belligerent nation 
 from responsibility for the acts of his commissioned cruisers, 
 is designed to ascertain and fix that responsibility. Those 
 cruisers are responsible only to the sovereign whose com- 
 missions they bear. So long as seizures are regularly made 
 upon apparent grounds of just suspicion, and followed by 
 prompt adjudication in the usual mode, and until the acts of 
 the captors are confirmed by the sovereign in the sentences 
 of the tribunals appointed by him to adjudicate in matters of 
 prize, the neutral has no ground of complaint, and what he 
 suffers is the inevitable result of the belligerent right of cap- 
 ture. But the moment the decision of the tribunal of the 
 last resort has been pronounced, (supposing it not to be 
 warranted by the facts of the case, and by the law of nations 
 applied to those facts,) and justice has been thus finally 
 denied, the capture and the condemnation become the acts 
 of the State, for which the sovereign is responsible to the 
 government of the claimant. There is nothing more irregular 
 in maintaining that the sovereign is responsible towards 
 foreign States for the acts of his tribunals, than in main- 
 taining that he is responsible for his own acts, which, in the 
 intercourse of nations, are constantly made the ground of 
 complaint, of reprisals, and even of war. No greater sanctity 
 can be imputed to the proceedings of prize tribunals, even by 
 the most extravagant theory of the conclusiveness of their 
 sentences, than is justly attributed to the acts of the 
 sovereign himself. But those acts, however binding upon 
 his own subjects, if they are not conformable to the public law 
 of the world, cannot be considered as binding upon the
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 459 
 
 subjects of other States. A wrong done to them forms an 
 equally just subject of complaint on the part of their govern- 
 ment, whether it proceeds from the direct agency of the 
 sovereign himself, or is inflicted by the instrumentality of his 
 tribunals. The tribunals of a State are but a part, and only 
 a subordinate part, of the government of that State. But 
 the right of redress against injurious acts of the whole 
 government, of the supreme authority, incontestably exists in 
 foreign States, whose subjects have suffered by those acts. 
 Much more clearly then must it exist, when those acts pro- 
 ceed from persons, authorities, or tribunals, responsible to 
 their own sovereign, but irresponsible to a foreign govern- 
 ment, otherwise than by its action on their sovereign. 
 
 These principles, so reasonable in themselves, are also 
 supported by the authority of the writers on public law, and 
 by historical examples. 
 
 " The exclusive 'right of the State, to which the captors f n ?Jf' o 
 belong, to adjudicate upon the captures made by them," says Ruther- 
 Eutherforth, " is founded upon another ; that is, its right to forth ' 
 inspect into the conduct of the captors, both because they are 
 members of it, and because it is responsible to all other 
 States for what they do in war ; since what they do in war is 
 done either under its general or its special commission. The 
 captors are therefore obliged, on account of the jurisdiction 
 which the State has over their persons, to bring such ships or 
 goods as they seize in the main ocean into their own ports, 
 and they cannot acquire property in them until the State has 
 determined whether they were lawfully taken or not. The 
 right which their own State has to determine this matter is 
 so far an exclusive one, that no other State can claim to judge 
 of their conduct until it has been thoroughly examined into 
 by their own ; both because no other State has jurisdiction 
 over their persons, and likewise because no other State is 
 answerable for what they do. But the State to which the 
 captors belong, whilst it is thus examining into the conduct 
 of its own members, and deciding whether the ships or goods 
 which they have seized are lawfully taken or not, is de- 
 termining a question between its own members and the 
 foreigners who claim the property ; and this controversy did 
 not arise within its own territory, but in the main ocean.
 
 460 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 The right, therefore, which it exercises is not civil jurisdic- 
 tion ; and the civil law, which is peculiar to its own territory, 
 is not the law by which it ought to proceed. Neither the 
 place where the controversy arose, nor the parties who are 
 concerned in it, are subject to this law. The only law by 
 which this controversy can be determined, is the law of nature, 
 applied to the collective bodies of civil societies, that is, the 
 law of nations ; unless, indeed, there have been any particular 
 treaties made between the two States, to which the captors 
 and the other claimants belong, mutually binding them to 
 depart from such rights as the law of nations would other- 
 wise have supported. Where such treaties have been made, 
 they are a law to the two States, as far as they extend, and to 
 all the members of them, in their intercourse with one 
 another. The State, therefore, to which the captors belong, 
 in determining what might or might not be lawfully taken, is 
 to judge by these particular treaties, and by the law of nations 
 taken together. 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 to the controversy, as they 
 are members of another State, are only bound to submit to 
 its sentence so far as this sentence is agreeable to the law of 
 nations, or to particular treaties ; because it has no jurisdic- 
 tion over them, either in respect of their persons, or of the 
 things that are the subject of the controversy. If justice, 
 therefore, is not done to them, they may apply to their own 
 State for a remedy ; which may, consistently with the law of 
 nations, give them a remedy, either by solemn war or reprisals. 
 In order to determine when their right to apply to their own 
 State begins, we must inquire when the exclusive right of 
 the other State to judge in this controversy ends. As this 
 exclusive right is nothing else but the right of the State, to 
 which the captors belong, to examine into the conduct of its 
 own members before it becomes answerable for what they have 
 done, such exclusive right cannot end until their conduct has 
 been thoroughly examined. Natural equity will not allow 
 that the State should be answerable for their acts, until those
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 461 
 
 acts are examined by all the ways which the State has ap- 
 pointed for this purpose. Since, therefore, it is usual in 
 maritime countries to establish not only inferior courts of 
 marine, to judge what is and what is not lawful prize, but 
 likewise superior courts of review, to which the parties may 
 appeal, if they think themselves aggrieved by the inferior 
 courts ; the subjects of a neutral State can have no right to 
 apply to their own State for a remedy against an erroneous 
 sentence of an inferior court, till they have appealed to the 
 superior court, or to the several superior courts, if there are 
 more courts of this sort than one, and till the sentence has 
 been confirmed in all of them. For these courts are so many 
 means appointed by the State, to which the captors belong, 
 to examine into their conduct ; and, till their conduct has 
 been examined by all these means, the State's exclusive right 
 of judging continues. After the sentence of the inferior court 
 has been thus confirmed, the foreign claimants may apply 
 to their own State for a remedy, if they think themselves 
 aggrieved ; but the law of nations will not entitle them to a 
 remedy, unless they have been actually aggrieved. When the 
 matter is carried thus far, the two States become the parties 
 in the controversy. And since the law of nature, whether it 
 is applied to individuals or civil societies, abhors the use of 
 force till force becomes necessary, the supreme rulers of the 
 neutral State, before they proceed to solemn war or to repri- 
 sals, ought to apply to the supreme rulers of the other State, 
 both to satisfy themselves that they have been rightly in- 
 formed, and likewise to try whether the controversy cannot be 
 adjusted by more gentle methods " (x). 
 
 In the celebrated report made to the British Government, 394. 
 in 1753, upon the case of the reprisals granted by the King 
 of Prussia, on account of captures made by the cruisers of Loan 
 Great Britain of the property of his subjects, the exclusive 
 jurisdiction of the captor's country over captures made in war, 
 by its commissioned cruisers, is asserted ; and it is laid down 
 that "the law of nations, founded upon justice, equity, con- 
 venience, and the reason of the thing, does not allow of re- 
 prisals, except in case of violent injuries, directed or supported 
 by the State, and justice absolutely denied in re minime diibia, 
 (a-) Ruthorforth's Inst. vol. ii. b. ii. ch. 9, 19.
 
 462 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 by all the tribunals, and afterwards by the prince ; " plainly 
 showing that, in the opinion of the eminent persons by whom 
 that paper was drawn up, if justice be denied in a clear case, 
 by all the tribunals, and afterwards by the prince, it forms a 
 lawful ground of reprisals against the nation by whose com- 
 missioned cruisers and tribunals the injury is committed. And 
 that Vattel was of the same opinion, is evident from the 
 manner in which he quotes this paper to support his own 
 doctrine, that the sentences of the tribunals ought not to be 
 made the ground of complaint by the State against whose 
 subjects they are pronounced, " excepting the case of a refusal 
 of justice, palpable and evident injustice, a manifest violation 
 of rules and forms," &c. (y). 
 
 In the case above referred to, the King of Prussia (then 
 neutral) had undertaken to set up within his own dominions 
 a commission to re-examine the sentences pronounced against 
 his subjects in the British prize courts ; a conduct which is 
 treated by the authors of the report to the British Govern- 
 ment as an innovation, " which was never attempted in any 
 country of the world before. Prize or no prize must be deter- 
 mined by courts of admiralty belonging to the power whose 
 subjects made the capture." But the report proceeds to state, 
 that " every foreign prince in amity has a right to demand 
 that justice should be done to his subjects in these courts, 
 according to the law of nations, or particular treaties, where 
 they are subsisting. If in re minime dubid, these courts pro- 
 ceed upon foundations directly opposite to the law of nations, 
 or subsisting treaties, the neutral State has a right to com- 
 plain of such determination." 
 
 The King of Prussia did complain of the determinations of 
 the British tribunals, and made reprisals by stopping the 
 interest upon a loan due to British subjects, and secured by 
 hypothecation upon the revenues of Silesia, until he actually 
 obtained from the British Government an indemnity for the 
 Prussian vessels unjustly captured and condemned. The pro- 
 ceedings of the British tribunals, though they were asserted 
 by the British government to be the only legitimate mode of 
 determining the validity of captures made in war, were not 
 
 (y) Vattel, Droit des Gens, liv. ii. cli. 7, 84.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 463 
 
 considered as excluding the demand of Prussia for redress 
 upon the government itself (z). 
 
 So, also, under the treaty of 1794, between the United 395. 
 States and Great Britain, a mixed commission was appointed mission 0111 
 to determine the claim of American citizens, arising from the under 
 
 treaty of 
 
 capture of their property hy British cruisers, during the exist- 1794. 
 ing war with France, according to justice, equity, and the law 
 of nations. In the course of the proceedings of this board, 
 objections were made, on the part of the British government, 
 against the commissioners proceeding to hear and determine 
 any case where the sentence of condemnation had been 
 affirmed by the Lords of Appeal in Prize Causes, upon the 
 ground that full and entire credit was to be given to their 
 final sentence ; inasmuch as, according to the general law of 
 nations, it was to be presumed that justice had been adminis- 
 tered by this, the competent and supreme tribunal in matters 
 of prize. But this objection was overruled by the board, upon 
 the grounds and principles already stated, and a full and satis- 
 factory indemnity was awarded in many cases where there had 
 been a final sentence of condemnation. 
 
 Many other instances might be mentioned of arrangements _ ? 96 - 
 
 J Conclusive- 
 
 between States, by which mixed commissions have been ness of 
 appointed to hear and determine the claims of the subjects of ^iona*' 
 neutral powers, arising out of captures in war, not for the 
 purpose of revising the sentences of the competent courts of 
 prize, as between the captors and captured, but for the pur- 
 pose of providing an adequate indemnity between State and 
 State, in cases where satisfactory compensation had not been 
 received in the ordinary course of justice. Although the 
 theory of public law treats prize tribunals, established by and 
 sitting in the belligerent country, exactly as if they were 
 established by and sitting in the neutral country, and as if 
 they always adjudicated conformably to the international law 
 common to both ; yet it is well known that, in practice, such 
 tribunals do take for their guide the prize ordinances and 
 instructions issued by the belligerent sovereign, without 
 stopping to inquire whether they are consistent with the para- 
 mount rule. If, therefore, the final sentences of these tribu- 
 nals were to be considered as absolutely conclusive, so as to 
 (z) Wheaton's Hist. Law of Nations, pp. 206217.
 
 464 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 preclude all inquiry into their merits, the obvious consequence 
 would be to invest the belligerent State with legislative power 
 over the rights of neutrals, and to prevent them from showing 
 that the ordinances and instructions, under which the sen- 
 tences have been pronounced, are repugnant to that law by 
 which foreigners alone are bound. 
 
 397. These principles have received recent confirmation in the 
 demnttics" ne g ot i ation between the American and Danish governments 
 under respecting the captures of American vessels and cargoes made 
 1&3<L by the cruisers of Denmark during the last war between that 
 power and Great Britain. In the course of this negotiation, 
 it was objected by the Danish ministers that the validity of 
 these captures had been finally determined in the competent 
 prize court of the belligerent country, and could not be again 
 drawn in question. On the part of the American government 
 it was admitted that the jurisdiction of the tribunals of the 
 capturing nation was exclusive and complete upon the question 
 of prize or no prize, so as to transfer the property in the 
 things condemned from the original owner to the captors, or 
 those claiming under them ; that the final sentence of those 
 tribunals is conclusive as to the change of property operated 
 by it, and cannot be again incidentally drawn in question in any 
 other judicial forum ; and that it has the effect of closing for 
 ever all private controversy between the captors and the cap- 
 tured. The demand which the United States made upon the 
 Danish government was not for a judicial revision and reversal 
 of the sentences pronounced by its tribunals, but for the in- 
 demnity to which the American citizens were entitled in con- 
 sequence of the denial of justice by the tribunals in the last 
 resort, and of the responsibility thus incurred by the Danish 
 Government for the acts of its cruisers and tribunals. The 
 Danish government was, of course, free to adopt any measures 
 it might think proper, to satisfy itself of the injustice of 
 those sentences, one of the most natural of which would be a 
 re-examination and discussion of the cases complained of, 
 conducted by an impartial tribunal under the sanction of the 
 two governments, not for the purpose of disturbing the ques- 
 tion of title to the specific property which had been irrevo- 
 cably condemned, or of reviving the controversy between the 
 individual captors and claimants which had been for ever
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 405 
 
 terminated, but for the purpose of determining between 
 government and government whether injustice had been done 
 by the tribunals of one power against the citizens of the 
 other, and of determining what indemnity ought to be granted 
 to the latter. 
 
 The accuracy of this distinction was acquiesced in by 
 the Danish ministers, and a treaty concluded, by which a 
 satisfactory indemnity was provided for the American 
 claimants (a). 
 
 It is a question of great nicety how far a prize court is bound to 397 a. 
 enforce a municipal law against foreigners when that municipal law is Municipal 
 contrary to the law of nations. In a case before Lord Stowell it was m i n i s 't ere( j 
 argued that the Orders in Council of 1807 were a violation of inter- in prize 
 national law, and that he was therefore bound to disregard them. His courts, 
 lordship was of opinion that as the Orders in Council were retaliatory, 
 they did not contravene the law of nations, but he added, " I have no 
 hesitation in saying that they would cease to be just if they ceased to be 
 retaliatory ; 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 " (&). Sir II. Phillimore is of opinion 
 " that it has never been the doctrine of the British Prize Courts that, 
 because they sit under the authority of the Crown, the Crown has 
 authority to prescribe to them rules which violate international 
 law " (c). 
 
 We have seen that a firm possession, or a sentence of a 398. 
 competent court, is sufficient to confirm the captor's title to rea l pro- 
 personal property or movables taken in war. A different rule P ert y, how 
 
 transferred 
 
 is applied to real property, or immovables. ihe original in war- 
 owner of this species of property is entitled to what is called i^^f' 
 the benefit of postliminy, and the title acquired in war must 
 be confirmed by a treaty of peace before it can be considered 
 as completely valid. This rule cannot be frequently applied 
 to the case of mere private property, which by the general 
 usage of modern nations is exempt from confiscation. It 
 only becomes practically important in questions arising out 
 of alienations of real property, belonging to the government, 
 made by the opposite belligerent, while in the military occu- 
 pation of the country. Such a title must be expressly con- 
 
 () Martens, Nouveau Rccueil, torn. viii. p. 350. 
 (&) [The Fox, Edw. Ad. 312.] 
 
 (c.) [Phillimore, vol. iii. 436. The Recovery, 6 C. Rob. 348 ; The Snipe, 
 Edw. Ad. 381; The Maria, 1 C. Rob. 350; The Ostsee, 9 Moo. P. C. 150.] 
 
 H 11
 
 466 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 - KaJb.Vl- , firmed by the treaty of peace, or by the general operation of 
 1 the cession of territory made by the enemy in such treaty. 
 "H-1 ^"V?*4]L Until such confirmation, it continues liable to be divested by 
 ' the jus postliminii. The purchaser of any portion of the 
 "*** national domain takes it at the peril of being evicted by the 
 original sovereign owner when he is restored to the posses- 
 sion of his dominions (d). 
 
 Grotius has devoted a whole chapter of his great work to 
 prove, by the consenting testimony of all ages and nations, 
 
 nies. that good faith ought to be observed towards an enemy. 
 And even Bynkershoek, who holds that every other sort of 
 fraud may be practised towards him, prohibits perfidy, upon 
 the ground that his character of enemy ceases by the com- 
 pact with him, so far as the terms of that compact extend. 
 "I allow of any kind of deceit," says he, "perfidy alone 
 excepted, not because anything is unlawful against an enemy, 
 but because when our faith has been pledged to him, so far as 
 the promise extends, he ceases to be an enemy." Indeed, 
 without this mitigation, the horrors of war would be indefi- 
 nite in extent and interminable in duration. The usage of 
 civilized nations has therefore introduced certain commercia 
 belli, by which the violence of war may be allayed, so far as 
 is consistent with its objects and purposes, and something of a 
 pacific intercourse may be kept up, which may lead, in time, 
 to an adjustment of differences, and ultimately to peace (e). 
 
 400. There are various modes in which the extreme rigour of 
 the rights of war may be relaxed at the pleasure of the 
 respective belligerent parties. Among these is that of a 
 suspension of hostilities, by means of a truce or armistice. 
 This may be either general or special. If it be general in 
 its application to all hostilities in every place, and is to 
 endure for a very long or indefinite period, it amounts in 
 effect to a temporary peace, except that it leaves undecided 
 
 (d) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, 4 ; cap. 9, 13. Vattel, 
 Droit des Gens, liv. iii. ch. 13, 197200, 210, 212. Kluber, Droit des 
 Gens Modeme de 1'Europe, 256258. Martens, Precis, &c., liv. viii. ch. 4, 
 282, a. Where the case of conquest is complicated with that of civil revo- 
 lution, and a change of internal government recognized by the nation itself 
 and by foreign States, a modification of the rule may be required in its prac- 
 tical application. Vide ante, Pt. I. ch. 2, 28, et scq. 
 
 (e) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 1. The Daifje, 3 C. Rob. 
 139.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 467 
 
 the controversy in which the war originated. Such were the 
 truces formerly concluded between the Christian powers and 
 the Turks. Such, too, was the armistice concluded, in 1609, 
 between Spain and her revolted provinces in the Netherlands. 
 A partial truce is limited to certain places, such as the sus- 
 pension of hostilities, which may take place between two con- 
 tending armies, or between a besieged fortress and the army 
 by which it is invested (/). 
 
 The power to conclude a universal armistice or suspension 401. 
 of hostilities is not necessarily implied in the ordinary official c^iudean 
 authority of the general or admiral commanding in chief the armistice, 
 military or naval forces of the State. The conclusion of such 
 a general truce requires either the previous special authority 
 of the supreme power of the State, or a subsequent ratifica- 
 tion by such power (</). 
 
 A partial truce or limited suspension of hostilities may be 
 concluded between 'the military and naval officers of the re- 
 spective belligerent States, without any special authority for 
 that purpose, where, from the nature and extent of their 
 commands, such an authority is necessarily implied as essen- 
 tial to the fulfilment of their official duties (/<). 
 
 A suspension of hostilities binds the contracting parties, 402. 
 
 and all acting immediately under their direction, from the ? enocl of 
 ^ its opera- 
 
 time it is concluded ; but it must be duly promulgated in tion. 
 
 order to have a force of legal obligation with regard to the 
 other subjects of the belligerent States ; so that if, before 
 such notification, they have committed any act of hostility, 
 they are not personally responsible, unless their ignorance be 
 imputable to their own fault or negligence. But as the 
 supreme power of the State is bound to fulfil its own engage- 
 ments, or those made by its authority, express or implied, 
 the government of the captor is bound, in the case of a sus- 
 pension of hostilities by sea, to restore all prizes made in 
 contravention of the armistice. To prevent the disputes and 
 difficulties arising from such questions, it is usual to stipu- 
 late in the convention of armistice, as in treaties of peace, a 
 
 (/) Vattel, Droit des Gens, liv. iii. ch. 16, 
 (g) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, 8. Barbeyrac's Note. 
 Vattel, Droit des Gens, liv. iii. ch. 16, 233238. 
 (h) Vide ante, Pt. iii. ch. 2, 254, 255. 
 
 H H 2
 
 468 
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 403. 
 interpret- 
 
 truce. 
 
 404. 
 
 prospective period within which hostilities are to cease, with 
 a due regard to the situation and distance of places (i). 
 
 Besides the general maxims applicable to the interpretation 
 of all international compacts, there are some rules peculiarly 
 applicable to conventions for the suspension of hostilities. 
 The first of these peculiar rules, as laid down by Vattel, is 
 that each party may do within his own territory, or within 
 the limits prescribed by the armistice, whatever he could do 
 in time of peace. Thus either of the belligerent parties may 
 levy and march troops, collect provisions and other munitions 
 of war, receive reinforcements from his allies, or repair the 
 fortifications of a place not actually besieged. 
 
 The second rule is, that neither party can take advantage 
 of the truce to execute, without peril to himself, what the 
 continuance of hostilities might have disabled him from doing. 
 Such an act would be a fraudulent violation of the armistice. 
 For example : in the case of a truce between the commander 
 of a fortified town and the army besieging it, neither party is 
 at liberty to continue works, constructed either for attack or 
 defence, or to erect new fortifications for such purposes. Nor 
 can the garrison avail itself of the truce to introduce provi- 
 sions or succours into the town, through the passages or in 
 any other manner which the besieging army would have been 
 competent to obstruct and prevent, had hostilities not been 
 interrupted by the armistice. 
 
 The third rule stated by Vattel, is rather a corollary from 
 the preceding rules than a distinct principle capable of any 
 separate application. As the truce merely suspends hostili- 
 ties without terminating the war, all things are to remain in 
 their antecedent state in the places, the possession of which 
 was specially contested at the time of the conclusion of the 
 armistice (7c). 
 
 It is obvious that the contracting parties may, by express 
 compact, derogate in any and every respect from these general 
 conditions. 
 
 At the expiration of the period stipulated in the truce, 
 hostilities recommence as a matter of course, without any 
 
 (i) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 21, 5. Vattel, Droit des 
 Gens, liv. iii. ch. 16, 239. 
 
 (k) Vattel, Droit des Gens, liv. iii. ch. 16, 245251.
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 469 
 
 new declaration of war. But if the truce has been con- f hostili- 
 
 ties 011 the 
 eluded for an indefinite, or for a very long period, good expiration 
 
 faith and humanity concur in requiring previous notice to be of truce> 
 given to the enemy of an intention to terminate what he may 
 justly regard as equivalent to a treaty of peace. Such was 
 the duty inculcated by the Fecial college upon the Romans, 
 at the expiration of a long truce which they had made with 
 the people of Veii. That people had recommenced hostilities 
 before the expiration of the time limited in the truce. Still 
 it was. held necessary for the Romans to send heralds and 
 demand satisfaction before renewing the war (I). 
 
 Capitulations for the surrender of troops, fortresses, and 405. 
 particular districts of country, fall naturally within the scope ^f",^" 
 of the general powers entrusted to military and naval com- the sur- 
 manders. Stipulations between the governor of a besieged troops and 
 place, and the general or admiral commanding the forces by fortresses. 
 which it is invested, if necessarily connected with the sur- 
 render, do not require the subsequent sanction of their re- 
 spective sovereigns. Such are the usual stipulations for the 
 security of the religion and privileges of the inhabitants, that 
 the garrison shall not bear arms against the conquerors for a 
 limited period, and other like clauses properly incident to the 
 particular nature of the transaction. But if the commander 
 of the fortified town undertake to stipulate for the perpetual 
 cession of that place, or enter into other engagements not 
 fairly within the scope of his implied authority, his promise 
 amounts to a mere sponsion (m). 
 
 The celebrated convention made by the Roman consuls 406. 
 with the Samnites, at the Caudine Forks, was of this nature. 
 
 The conduct of the Roman senate in disavowing this igno- Caudine 
 minious compact, is approved by Grotius and Vattel, who 
 hold that the Samnites were not entitled to be placed in statu 
 quo, because they must have known that the Roman consuls 
 were wholly unauthorized to make such a convention. This 
 consideration seems sufficient to justify the Romans in acting 
 on this occasion according to their uniform uncompromising 
 policy, by delivering up to the Samnites the authors of the 
 
 (I) Liv. Hist. lib. iv. cap. 30. As to the laws of war observed by the Romans, 
 see Wheaton's Hist. Law of Nations, pp. 20 25. 
 (m) Vide ante, Ft. iii. ch. 2, 255.
 
 470 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 treaty, and persevering in the war until this formidable enemy 
 was finally subjugated (ri). 
 
 407. The convention concluded at Closter- Seven, during the 
 seven y ears ' war ' betw een the Duke of Cumberland, corn- 
 
 Seven. mander of the British forces in Hanover, and Marshal Riche- 
 lieu, commanding the French army, for a suspension of arms 
 in the north of Germany, is one of the most remarkable 
 treaties of this kind recorded in modern history. It does not 
 appear, from the discussions which took place between the 
 two governments on this occasion, that there was any dis- 
 agreement between them as to the true principles of inter- 
 national law applicable to such transactions. The conduct, 
 if not the language of both parties, implies a mutual admission 
 that the convention was of a nature to require ratification, as 
 exceeding the ordinary powers of mere military commanders in 
 respect to mere military capitulations. The same remark 
 may be applied to the convention signed at El Arish, in 1800, 
 for the evacuation of Egypt by the French army ; although 
 the position of the two governments, as to the convention of 
 Closter- Seven, was reversed in that of El Arish, the British 
 government refusing in the first instance to permit the exe- 
 cution of the latter treaty upon the ground of the defect in 
 Sir Sidney Smith's powers, and, after the battle of Heliopolis, 
 insisting upon its being performed by the French, when cir- 
 cumstances had varied and rendered its execution no longer 
 1 -^4- consistent with their policy and interest. Good faith may 
 have characterized the conduct of the British government in 
 this instance, as was strenuously insisted by ministers in the 
 parliamentary discussions to which the treaty gave rise, but 
 there is at least no evidence of perfidy on the part of General 
 Kleber. His conduct may rather be compared with that of 
 the Duke of Cumberland at Closter-Seven (and it certainly 
 will not suffer by the comparison), in concluding a convention 
 suited to existing circumstances, which it was plainly his in- 
 terest to carry into effect when it was signed, and afterwards 
 refusing to abide by it when those circumstances were mate- 
 rially changed. In these compacts, time is material : indeed 
 it may be said to be of the very essence of the contract. If 
 
 () See the account given by Livy of this remarkable transaction.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 471 
 
 anything occurs to render its immediate execution imprac- 
 ticable, it becomes of no effect, or at least is subject to be 
 varied by fresh negotiation (o). 
 
 Passports, safe-conducts, and licenses, are documents 408. 
 granted in war to protect persons and property from the ^.^f' 
 general operation of hostilities. The competency of the ducts, and 
 
 i n i T ji i i licenses. 
 
 authority to issue them depends on the general principles 
 already noticed. This sovereign authority may be vested in 
 military and naval commanders, or in certain civil officers, 
 either expressly, or by inevitable implication from the nature 
 and extent of their general trust. Such documents are to be 
 interpreted by the same rules of liberality and good faith with 
 other acts of the sovereign power (p). 
 
 Thus a license granted by the belligerent State to its own 
 subjects, or to the subjects of its enemy, to carry on a trade 
 interdicted by war, operates as a dispensation with the laws Wlth the 
 of war, so far as its 'terms can be fairly construed to extend. 
 The adverse belligerent party may justly consider such docu- 
 ments of protection as per se a ground of capture and confis- 
 cation ; but the maritime tribunals of the State, under whose 
 authority they are issued, are bound to consider them as 
 lawful relaxations of the ordinary state of war. A license is 
 an act proceeding from the sovereign authority of the State, 
 which alone is competent to decide on all the considerations 
 of political and commercial expediency, by which such an 
 exception from the ordinary consequences of war must be 
 controlled. Licenses, being high acts of sovereignty, are ne- 
 cessarily stricti juris, and must not to be carried further than 
 the intention of the authority which grants them may be sup- 
 posed to extend. Not that they are to be construed with 
 pedantic accuracy, or that every small deviation should be 
 held to vitiate their fair effect. An excess in the quantity of 
 goods permitted might not be considered as noxious to any 
 extent, but a variation in their quality or substance might be 
 more significant, because a liberty assumed of importing 
 one species of goocls, under a license to import another, might 
 
 (o) Flassan, Histoire de la Diplomatie Fran^aise, torn, vi pp. 97 107. 
 Annual Register, vol. i. pp. 209-213, 228234 ; vol. xlii. p. [219], pp. 223 
 -^-233. State Papers, vol. xliii. pp. [2834]. 
 
 (;;) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 21, 14. Vattcl, Droit des 
 Gens, liv. iii. ch. 17, 265277.
 
 472 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 lead to very dangerous consequences. The limitations of 
 time, persons, and places, specified in the license, are also 
 material. The great principle in these cases is, that subjects 
 are not to trade with the enemy, nor the enemy's subjects 
 with the belligerent State, without the special permission of 
 the government ; and a material object of the control which 
 the government exercises over such a trade is, that it may 
 judge of the fitness of the persons, and under what restric- 
 tions of time and place such an exemption from the ordinary 
 laws of war may be extended. Such are the general prin- 
 ciples laid down by Sir W. Scott for the interpretation of 
 these documents ; but Grotius lays down the general rule, 
 that safe-conducts, of which these licenses are a species, are 
 to be liberally construed ; laxa quam stricta interpretatio ad- 
 mittenda est. And during the last war, licenses were even- 
 tually interpreted with great liberality in the British Courts 
 of Prize (q). 
 
 41 - It was made a question in some cases in those courts, how 
 to grant ^ ar these documents could protect against British capture, on 
 licenses. account of the nature and extent of the authority of the 
 persons by whom they were issued. The leading case on this 
 subject is that of The Hope, an American ship, laden with 
 corn and flour, captured whilst proceeding from the United 
 States to the ports of the Peninsula occupied by the British 
 troops, and claimed as protected by an instrument granted by 
 the British consul at Boston, accompanied by a certified copy 
 of a letter from the admiral on the Halifax station. In pro- 
 nouncing judgment in this case, Sir W. Scott observed, that 
 the instrument of protection, in order to be effectual, must 
 come from those who have a competent authority to grant 
 such a protection, but that the papers in question came from 
 persons who were vested with no such authority. To exempt 
 the property of enemies from the effect of hostilities is a very 
 high act of sovereign authority ; if at any time delegated to 
 persons in a subordinate station, it must be exercised either by 
 those who have a special commission granted to them for the 
 particular business, and who, in legal language, are called 
 mandatories ; or by persons in whom such a power is vested 
 
 (q) Chitty's Law of Nations, ch. 7. Kent's Commentaries on American Law, 
 vol. i. p. 163, note (b), 5th edit.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 473 
 
 in virtue of any situation to which it may be considered inci- 
 dental. It was quite clear that no consul in any country, 
 particularly in an enemy's country, is vested with any such 
 power in virtue of his station. Ei rei non prceponitur, and, 
 therefore, his acts in relation to it are not binding. Neither 
 does the admiral, on any station, possess such authority. 
 He has, indeed, power relative to the ships under his imme- 
 diate command, and can restrain them from committing acts 
 of hostility ; but he cannot go beyond that ; he cannot grant 
 a safeguard of this kind beyond the limits of his own station. 
 The protections, therefore, which had been set up did not 
 result from any power incidental to the situation of the 
 persons by whom, they had been granted ; and it was not 
 pretended that any such power was specially intrusted to 
 them for the particular occasion. If the instruments which 
 had been relied upon by the claimants were to be considered 
 as the naked acts of those persons, then they were, in every 
 point of view, totally invalid. But the question was, whether 
 the British government had taken any steps to ratify these 
 proceedings, and thus to convert them into valid acts of 
 state ; for persons not having full power may make what, in 
 law, are termed sponsiones, or, in diplomatic language, treaties 
 sub spe rati, to which a subsequent ratification may give 
 validity : ratiJiabitio mandato cequiparatur. The learned 
 judge proceeded to show, that the British government had 
 confirmed the acts of its officers, by the Order in Council of 
 the 26th October, 1813, and accordingly decreed restitution 
 of the property. In the case of The Reward, before the 
 Lords of Appeal, the principle of this judgment was~substan- 
 tially confirmed ; but in that of The Charles, and other 
 similar cases, where certificates or passports] of the same 
 kind, signed by Admiral Sawyer, and also by the Spanish 
 minister in the United States, had been used for voyages 
 from thence to the Spanish West Indies, the Lords of Appeal 
 held that these documents, not being included within the 
 terms of the confirmatory Order in Council, did not afford 
 protection. In the cases of passports granted by the British 
 minister in the United States, permitting American vessels 
 to sail with provisions from thence to the island of St. Bar- 
 tholomew, but not confirmed by an Order in Council, the
 
 474 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 Lords condemned in all the cases not expressly included 
 within the terms of the Order in Council, by which certain 
 descriptions of licenses granted by the minister had been 
 confirmed (r). 
 
 410 a. A license maybe vitiated by fraudulent conduct in obtaining it. The 
 license n m i sre P resen tation or suppression of material facts renders the license a 
 nullity, and exposes the property it is invoked to protect to certain con- 
 demnation (s). A license must also be used in the manner intended by 
 the grantor. " It is a mistake to suppose that the right of user may not 
 be prejudiced by a construction of the grant that is merely erroneous. 
 It is absolutely essential that the will of the grantor shall be observed ; 
 so that, that only shall be done which he intended to permit ; whatever 
 he did not mean to permit is absolutely interdicted. Hence the party 
 who uses the license, engages, not only for fair intentions, but for an 
 accurate interpretation and execution of the grant " (t). In America it 
 was determined that under the Act of the 13th July, 1861, the President 
 was the only functionary who could grant a license to trade with the 
 enemy. All other licenses were held to be void, and therefore ships 
 licensed by any one else were condemned ; and persons acting under any 
 but the President's licenses were held to be trading with the enemy (u). 
 
 411. The contract made for the ransom of enemy's property, 
 ca^ured * ^ a ^ en a * sea ^ s generally carried into effect by means of a 
 property, safe-conduct granted by the captors, permitting the captured 
 vessel and cargo to proceed to a designated port, within a 
 limited time. Unless prohibited by the law of the captor's 
 own country, this document furnishes a complete legal pro- 
 tection against the cruisers of the same nation, or its allies, 
 during the period, and within the geographical limits, pre- 
 scribed by its terms. This protection results from the 
 general authority to capture, which is delegated by the belli- 
 gerent State to its commissioned cruisers, and which involves 
 the power to ransom captured property, when judged advan- 
 tageous. If the ransomed vessel is lost by the perils of the 
 sea, before her arrival, the obligation to pay the sum stipu- 
 lated for her ransom is not thereby extinguished. The captor 
 guarantees the captured vessel against being interrupted in 
 its course, or retaken, by other cruisers of his nation, or its 
 
 (r) The Hope, 1 Dods. Ad. 226 ; Ibid. Appendix (D.). Stewart's Vice- 
 Adra. Rep. p. 367. 
 
 (s) [Duer on Insurance, I. p. 598. TJie Cosmopolite, 4 C. Rob. 11 ; The 
 Clio, 6 C. Rob. 69. Halleck, ch. xxviii. 6.] 
 
 (t) [Duer on Insurance, I., p. 598. Vandyck v. Whitmore, 1 East. 475.] 
 
 (u) [The Sea Lion, 5 Wallace, 630 ; The Owachita Cotton, 6 Wallace, 521 ; 
 M'Kee v. U. S., 8 Wallace, 167 ; The Reform, 3 Wallace, 617.]
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 475 
 
 allies, but he does not insure against losses by the perils of 
 the seas. Even where it is expressly agreed that the loss of 
 the vessel by these perils shall discharge the captured from 
 the payment of the ransom, this clause is restrained to the 
 case of a total loss on the high seas, and is not extended to 
 shipwreck or stranding, which might afford the master a 
 temptation fraudulently to cast away his vessel, in order to 
 save the most valuable part of the cargo, and avoid the pay- 
 ment of the ransom. Where the ransomed vessel, having 
 exceeded the time or deviated from the course prescribed by 
 the ransom-bill, is retaken, the debtors of the ransom are 
 discharged from their obligation, which is merged in the 
 prize, and the amount is deducted from the net proceeds 
 thereof, and paid to the first captor, whilst the residue is paid 
 to the second captor. So if the captor, after having ran- 
 somed a vessel belonging to the enemy, is himself taken by 
 the enemy, together with the ransom-bill, of which ho is the 
 bearer, this ransom-bill becomes a part of the capture made 
 by the enemy ; and the persons of the hostile nation, who 
 were debtors of the ransom, are thereby discharged from 
 their obligation. The death of the hostage taken for the 
 faithful performance of the contract on the part of the cap- 
 tured does not discharge the contract ; for the captor trusts 
 to him as a collateral security only, and by losing it does not 
 also lose his original security, unless there is an express 
 agreement to that effect (x). 
 
 Sir William Scott states, in the case of The Hoop, that as 
 to ransoms, which are contracts arising ex jure belli, and 
 tolerated as such, the enemy was not permitted to sue in the 
 British courts of justice in his own proper person for the pay- 
 ment of the ransom, even before British subjects were pro- 
 hibited by the statute 22 Geo. III. cap. 25, from ransoming 
 enemy's property ; 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. But the effect of 
 such a contract, like that of every other which may be law- 
 fully entered between belligerents, is to suspend the character 
 of enemy so far as respects the parties to the ransom-bill ; and 
 
 (x) Pothier, Traite de Propriete, Nos. 134-137. Valin, sur 1'Ordonnance, 
 liv. iii. tit. 9 ; dcs Prises, art. 19. Traite des Prises, ch. 11, Nos. 1 3.
 
 476 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 consequently, the technical objection of the want of a persona 
 standi in judicio cannot, on principle, prevent a suit being 
 brought by the captor directly on the ransom-bill. And 
 this appears to be the practice in the maritime courts of the 
 European continent (y}. 
 
 411a. The Naval Prize Act, 1864, gives power to Her Majesty in council to 
 
 British make such orders as may seem expedient for prohibiting or allowing the 
 
 r aw ransom of British ships taken as prize by the enemy. If any person 
 
 ransoms or agrees to ransom any ship or goods in contravention of such 
 
 orders, he may on conviction be fined any sum not exceeding 500 by 
 
 the Admiralty Court (z). 
 
 411b. In 1874 a Conference assembled at Brussels, on the invitation of the 
 The Emperor of Russia, for the purpose of dismissing a project of international 
 
 russe s ru i eg on the laws and usages of war, a series of rules on the subjects 
 r considered in this chapter was agreed to, and these will be found to 
 
 contain the ideas respecting the intercourse of belligerents at present 
 prevailing on the continent of Europe. The Conference was attended 
 by delegates from all the countries of Europe, but no international com- 
 pact was entered into. " A careful consideration of the whole matter," 
 wrote Lord Derby, " has convinced Her Majesty's government that it is 
 their duty firmly to repudiate, on behalf of Great Britain and her allies 
 in any future war, any project for altering the principles of international 
 law vipon which this country has hitherto acted, and above all, to refuse 
 to be a party to any agreement, the effect of which would be to facilitate 
 aggressive wars, and to paralyse the patriotic efforts of an invaded 
 people " (a). Nevertheless, though not absolutely binding, the rules are 
 of immense value in exhibiting the prevailing ideas in a definite form (&.) 
 
 PROJECT OF AN INTERNATIONAL DECLARATION CON- 
 CERNING THE LAWS AND CUSTOMS OF WAR. 
 
 Of Military Authority over the Hostile State. 
 
 411 c. Article 1. A territory is considered as occupied when it is actually 
 placed under the authority of the hostile army. 
 
 The occupation only extends to those territories where this authority 
 is established and can be exercised. 
 
 Art. 2. The authority of the legal power being suspended, and having 
 actually passed into the hands of the occupier, he shall take every step 
 in his power to re-establish and secure, as far as possible, public safety 
 and social order. 
 
 (y) The Hoop, 1 C. Rob. 201. See Lord Mansfield's judgment in the case of 
 Hicordv. Bcttenham, Burrow's Eep. p. 1734 ; Pothier, Propriety Nos. 136,137. 
 
 (z) [27 & 28 Viet. c. 25, s. 45. And see Maisonnaire v. Keating, 2 Galli- 
 son, 337 ; Miller v. The Resolution, 2 Dallas, 15.] 
 
 (a) [Lord Derby to Lord A. Loitus, 20th January, 1875. Hertslet, Map 
 of Europe, vol. iii. p. 1976.] 
 
 (b) [The whole of the proceedings of the Conference will be found in Par]. 
 Papers, Miscellaneous (No. 1), 1875.] 
 
 \
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 477 
 
 Art 3. With this object he will maintain the laws which were in force 
 in the country in time of peace, and will only modify, suspend, or re- 
 place them by others if necessity obliges him to do so. 
 
 Art. 4. The functionaries and officials of every class who at the in- 
 stance of the occupier consent to continue to perform their duties, shall 
 be under his protection. They shall not be dismissed or be liable to 
 summary punishment (punis disciplinairement), unless they fail in ful- 
 filling the obligations they have undertaken, and shall be handed over 
 to justice, only if they violate those obligations by unfaithfulness. 
 
 Art. 5. The army of occupation shall only levy such taxes, dues, duties, 
 and tells as are already established for the benefit of the State, or their 
 equivalent, if it be impossible to collect them, and this shall be done as 
 far as possible in the form of, and according to, existing practice. It 
 shall devote them to defraying the expenses of the administration of the 
 country to the same extent as was obligatory on the legal government. 
 
 Art. 6. The army occupying a territory shall take possession only of 
 the specie, the funds, and marketable securities, &c. (valeurs exiyibles), 
 which are the property of the State in its own right, the depots of arms, 
 means of transport, magazines and supplies, and, in general, all the per- 
 sonal property of the State, which is of a nature to aid in carrying on 
 the war. 
 
 Eailway plant, land telegraphs, steam and other vessels, not included 
 in cases regulated by maritime law, as well as depots of arms, and gene- 
 rally every kind of munitions of war, although belonging to companies or 
 to private individuals, are to be considered equally as means of a nature 
 to aid in carrying on a war, which cannot be left by the army of occu- 
 pation at the disposal of the enemy. Railway plant, land telegraphs, 
 as well as the steam and other vessels above mentioned shall be restored, 
 and indemnities be regulated on the conclusion of peace. 
 
 Art. 7. The occupying State shall only consider itself in the light of 
 an administrator and usufructuary of the public buildings, real property, 
 forests, and agricultural works belonging to the hostile State, and 
 situated in the occupied territory. It is bound to protect these proper- 
 ties (fonds de ces proprietes), and to administer them according to the 
 laws of usufruct. 
 
 Art. 8. The property of parishes (communes), of establishments devoted 
 to religion, charity, education, arts and sciences, although belonging to 
 the State, shall be treated as private property. 
 
 Every seizure, destruction of, or wilful damage to such establishments, 
 historical monuments, or works of art or of science, should be prosecuted 
 by the competent authorities. 
 
 Of those who are to be recognized as Belligerents : of Combatants and Non- 
 Combatants. 
 
 Art. 9. The laws, rights, and duties of war are applicable not only to 41 Id. 
 the army, but likewise to militia and corps of volunteers complying with 
 the following conditions : 
 
 1. That they have at their head a person responsible for his subor- 
 dinates ;
 
 478 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 2. That they wear some settled distinctive badge recognizable at a 
 distance ; 
 
 3. That they carry arms openly ; and 
 
 4. That, in their operations, they conform to the laws and customs 
 of war. 
 
 In those countries where the militia form the whole or part of the 
 army, they shall be included under the denomination of " army." 
 
 Art. 10. The population of a non-occupied territory, who, on the 
 approach of the enemy, of their own accord take up arms to resist the 
 invading troops, without having had time to organize themselves in con- 
 formity with Article 9, shall be considered as belligerents, if they respect 
 the laws and customs of war. 
 
 Art. 11. The armed forces of the belligerents may be composed of 
 combatants and non-combatants. In the event of being captured by the 
 enemy, both one and the other shall enjoy the rights of prisoners of war. 
 
 Of the means of injuring the Enemy. 
 
 411e. Art. 12. The laws of war do not allow to belligerents an unlimited 
 power as to the choice of means of injuring the enemy. 
 
 Art. 13. According to this principle are strictly forbidden 
 (..) The use of poison or poisoned weapons. 
 
 (6.) Murder by treachery of individuals belonging to the hostile 
 nation or army. 
 
 (c.) Murder of an antagonist who, having laid down his arms, or 
 having no longer the means of defending himself, has surrendered at 
 discretion. 
 
 (d.) The declaration that no quarter will be given. 
 
 (e.) The use of arms, projectiles, or substances (matieres), which may 
 cause unnecessary suffering, as well as the use of the projectiles pro- 
 hibited by the declaration of St. Petersburg!! in 1868. 
 
 (/.) Abuse of the flag of truce, the national flag, or the military in- 
 signia or uniform of the enemy, as well as the distinctive badges of the 
 Geneva Convention. 
 
 ((/.) All destruction or seizure of the property of the enemy which is 
 not imperatively required by the necessity of war. 
 
 Art. 14. Stratagems (ruses de guerre), and the employment of means 
 necessary to procure intelligence respecting the enemy or the country 
 (terrain), (subject to the provisions of Article 36), are considered as 
 lawful means. 
 
 Of Sieges and Bombardments. 
 
 411f. Art. 15. Fortified places are alone liable to be besieged. Towns, 
 agglomerations of houses or villages, which are open or undefended, 
 cannot be attacked or bombarded. 
 
 Art. 16. But if a town or fortress, agglomeration of houses, or village, 
 be defended, the commander of the attacking forces should, before com- 
 mencing a bombardment and except in the case of surprise, do all in his 
 power to warn the authorities. 
 
 Art 17. In the like case, all necessary steps should be taken to spare, 
 as far as possible, buildings devoted to religion, arts, sciences and charity,
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 479 
 
 hospitals, and places where sick and wounded are collected, on con. 
 dition that they are not used at the same time for military purposes. 
 
 It is the duty of the besieged to indicate these buildings by special 
 visible signs, to be notified beforehand by the besieged. 
 
 Art. 18. A town taken by storm shall not be given up to the victorious 
 troops to plunder. 
 
 Of Spies. 
 
 Art. 19. No one shall be considered as a spy but those who, acting 411g-. 
 secretly or under false pretences, collect or try to collect information in 
 districts occupied by the enemy, with the intention of communicating it 
 to the opposing force. 
 
 Art. 20. A spy, if taken in the act, shall be tried and treated according 
 to the laws in force in the army which captiires him. 
 
 Art. 21. If a spy who rejoins the army to which he belongs is subse- 
 quently captured by the enemy, he is to be treated as a prisoner of war, 
 and incurs no responsibility for his previous acts. 
 
 Art. 22. Military men (les militaires), who have penetrated within the 
 zone of operations of the enemy's army, with the intention of collecting 
 information, are not considered as spies if it has been possible to recog- 
 nize their military character. 
 
 In like manner military men, (and also non-military persons carrying 
 out their mission openly,) charged with the transmission of despatches 
 either to their own army or to that of the enemy, shall not be considered 
 as spies if captured by the enemy. 
 
 To this class belong also, if captured, individuals sent in balloons to 
 carry despatches, and generally to keep up communications between the 
 different parts of an army or of a territory. 
 
 Of Prisoners of War. 
 
 Art. 23. Prisoners of war are lawful and disarmed enemies. They are 411h. 
 in the power of the enemy's government, but not of the individuals or of 
 the corps who made them prisoners. 
 
 They should be treated with humanity. 
 
 Every act of insubordination authorizes the necessary measures of 
 severity to be taken with regard to them. 
 
 All their personal effects except their arms are considered to be their 
 own property. 
 
 Art. 24. Prisoners of war are liable to internment in a town, fortress, 
 camp, or in any locality whatever, under an obligation not to go beyond 
 certain fixed limits ; but they may not be placed in confinement (en- 
 fermes), unless absolutely necessary as a measure of security. 
 
 Art. 25. Prisoners of war may be employed on certain public works 
 which have no immediate connection with the operations on the theatre 
 of war, provided the employment be not excessive, nor humiliating to 
 their military rank, if they belong to the army, or to -their official or 
 social position, if they do not belong to it. 
 
 They may also, subject to such regulations as may be drawn up by the 
 military authorities, undertake private work.
 
 480 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 The pay they receive will go towards ameliorating their position, or 
 will be placed to their credit at the time of their release. In this case 
 the cost of their maintenance may be deducted from their pay. 
 
 Art. 26. Prisoners of war cannot be compelled in any way to take any 
 part whatever in carrying on the operations of war. 
 
 Art. 27. The government, in whose power are the prisoners of war, 
 undertakes to provide for their maintenance. 
 
 The conditions of such maintenance may be settled by a mutual un- 
 derstanding between the belligerents. 
 
 In default of such an understanding, and as a general principle, 
 prisoners of war shall be treated, as regards food and clothing, on the 
 same footing as the troops of the government who made them prisoners. 
 
 Art. 28. Prisoners of war are subject to the laws and regulations in 
 force in the army in whose power they are. 
 
 Arms may be used, after summoning, against a prisoner attempting to 
 escape. If retaken, he is subject to summary punishment (peines disci- 
 p/inaires), or to a stricter surveillance. 
 
 If after having escaped he is again made prisoner, he is not liable to 
 any punishment for his previous escape. 
 
 Art. 29. Every prisoner is bound to declare, if interrogated on the 
 point, his true names and rank, and in the case of his infringing this 
 rule, he will incur a restriction of the advantages granted to the prisoners 
 of the class to which he belongs. 
 
 Art. 30. The exchange of prisoners of war is regulated by mutual 
 agreement between the belligerents. 
 
 Art. 31. Prisoners of war may be released on parole if the laws of 
 their country allow of it, and in such a case they are bound on their 
 personal honour to fulfil scrupulously, as regards their own government, 
 as well as that which made them prisoners, the engagements they have 
 undertaken. 
 
 In the same case their own government should neither demand nor 
 accept from them any service contrary to their parole. 
 
 Art. 32. A prisoner of war cannot be forced to accept release on parole, 
 nor is the enemy's government obliged to comply with the request of a 
 prisoner claiming to be released on parole. 
 
 Art. 33. Every prisoner of war liberated on parole, and retaken 
 carrying arms against the government to which he had pledged his 
 honour, may be deprived of the rights accorded to prisoners of war, and 
 may be brought before the tribunals. 
 
 Art. 34. Persons in the vicinity of armies, but who do not directly 
 form part of them, such as correspondents, newspaper reporters, " vivan- 
 diers," contractors, &c., may also be made prisoners of war. 
 
 These persons should, however, be furnished with a permit issued by 
 a competent authority, as well as with a certificate of identity. 
 
 Of the Sick and Wounded. 
 
 4111. Art. 35. The duties of belligerents, with regard to the treatment of 
 sick and wounded, are regulated by the Convention of Geneva of the 
 22nd August, 1864, subject to the modifications which may be intro- 
 duced into that Convention.
 
 RIGHTS OF WAR AS BETWEEN ENEMIES. 481 
 
 Of the Military Power with respect to Private Individuals. 4llj. 
 
 Art. 36. The population of an occupied territory cannot be compelled 
 to take part in military operations against their own country. 
 
 Art. 37. The population of occupied territories cannot be compelled 
 to swear allegiance to the enemy's power. 
 
 Art. 38. The honour and rights of the family, the life and property of 
 individuals, as well as their religious convictions, and the exercise of 
 their religion should be respected. 
 
 Private property cannot be confiscated. 
 
 Art. 39. Pillage is expressly forbidden. 
 
 Of Contributions and Requisitions. 
 
 Art. 40. As private property should be respected, the enemy will de- 411k. 
 mand from parishes (communes), or the inhabitants, only such payments 
 and services as are connected with the necessities of war generally ac- 
 knowledged in proportion to the resources of the country, and which do 
 not imply, with regard to the inhabitants, the obligation of taking part 
 in the operations of war against their own country. 
 
 Art. 41. The enemy, in levying contributions, whether as equivalents 
 for taxes (vide Article 5), or for payments which should be made in kind, 
 or as fines, will proceed, -as far as possible, according to the rules of the 
 distribution and assessment of the taxes in force in the occupied territory. 
 
 The civil authorities of the legal government will afford their assist- 
 ance, if they have remained in office. 
 
 Contributions can be imposed only on the order and on the responsi- 
 bility of the general-in-chief, or of the superior civil authority established 
 by the enemy in the occupied territory. 
 
 For every contribution a receipt shall be given to the person fur- 
 nishing it. 
 
 Art. 42. Requisitions shall be made only by the authority of the 
 commandant of the locality occupied. 
 
 For every requisition an indemnity shall be granted, or a receipt given. 
 
 Of Flags of Truce. 
 
 Art. 43. An individual authorized by one of the belligerents to confer 411 j. 
 with the other, on presenting himself with a white flag, accompanied by 
 a trumpeter (bugler or drummer), or also by a flag-bearer, shall be re- 
 cognized as the bearer of a flag of truce. He, as well as the trumpeter 
 (bugler or drummer), and the flag-bearer, who accompany him, shall 
 have the right of inviolability. 
 
 Art. 44. The commander to whom a bearer of a flag of truce is de- 
 spatched, is not obliged to receive him under all circumstances and 
 conditions. 
 
 It is lawful for him to take all measures necessary for preventing the 
 bearer of the flag of truce taking advantage of his stay within the radius 
 of the enemy's position, to the prejudice of the latter ; and if the bearer 
 of the flag of truce is found guilty of such a breach of confidence, he has 
 the right to detain him temporarily. 
 
 H$ may equally declare beforehand that he will not receive bearers of 
 flags of truce during a certain period. Envoys presenting themselves
 
 482 RIGHTS OF WAR AS BETWEEN ENEMIES. 
 
 after such a notification from the side to which it has been given, forfeit 
 their right to inviolability. 
 
 Art. 45. The bearer of a flag of truce forfeits his right of inviolability, 
 if it be proved in a positive and irrefutable manner that he has taken 
 advantage of his privileged position to incite to, or commit an act of 
 treachery. 
 
 Of Capitulations. 
 
 411m. Art. 46. The conditions of capitulations shall be discussed by the 
 contracting parties. 
 
 These conditions should not be contrary to military honour. 
 When once settled by a Convention they should be scrupulously ob- 
 served by both sides. 
 
 Of Armistices. 
 
 41 In. Art. 47. An armistice suspends warlike operations by a mutual agree- 
 ment between the belligerents. Should the duration thereof not be 
 fixed, the belligerents may resume operations at any moment ; provided, 
 however, that proper warning be given to the enemy, in accordance with 
 the conditions of the armistice. 
 
 Art. 48. An armistice may be general or local. The former suspends 
 all warlike operations between the belligerents ; the latter only those 
 between certain portions of the belligerent armies, and within a fixed 
 radius. 
 
 Art. 49. An armistice should be notified officially and without delay 
 to the competent authorities and to the troops. Hostilities are suspended 
 immediately after the notification. 
 
 Art. 50. It rests with the contracting parties to define in the clauses 
 of the armistice the relations which shall exist between the populations. 
 
 Art. 51. The violation of the armistice by either of the parties gives 
 to the other the right of terminating it (le denoncer). 
 
 Art. 52. The violation of the clauses of an armistice by private indi- 
 viduals, on their own personal initiative, only affords the right of de- 
 manding the punishment of the guilty persons, and, if there is occasion 
 for it, an indemnity for losses sustained. 
 
 Of Belligerents interned, and of Wounded treated, in Neutral Territory. 
 
 411o. -^"k ^' ^ ne neu t ra l State receiving in its territory troops belonging 
 to the belligerent armies, will intern them, so far as it may be possible, 
 away from the theatre of war. 
 
 They may be kept in camps, or even confined in fortresses, or in 
 places appropriated to this purpose. 
 
 It will decide whether the officers may be released on giving their 
 parole not to quit the neutral territory without authority. 
 
 Art. 54. In default of a special agreement the neutral State which re- 
 ceives the belligerent troops will furnish the interned with provisions, 
 clothing, and such aid as humanity demands. 
 
 The expenses incurred by the internment will be made good at the 
 conclusion of peace. 
 
 Art. 55. The neutral State may authorize the transport across its
 
 EIGHTS OF WAR AS BETWEEN ENEMIES. 483 
 
 territory of the wounded and sick "belonging to the belligerent armies, 
 provided that the trains which convey them do not carry either the 
 personnel or materiel of war. 
 
 In this case the neutral State is hound to take the measures necessary 
 for the safety and control of the operation. 
 
 Art. 56. The Convention of Geneva is applicable to the sick and 
 wounded interned on neutral territory. 
 
 t i
 
 CHAPTER III. 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 412. IT deserves to be remarked, that there are no words in the 
 eutr Greek or Latin language which precisely answer to the 
 English expressions, neutral and neutrality. The terms 
 neutralis, neutralitas, which are used by some modern writers, 
 are barbarisms, not to be met with in any classical author. 
 The Eoman civilians and historians make use of the words 
 amid, medii, pacati, socii, which are very inadequate to ex- 
 press what we understand by neutrals, and they have no 
 substantive whatever corresponding to neutrality. The cause 
 of this deficiency is obvious. According to the laws of war, 
 observed even by the most civilized nations of antiquity, the 
 right of one nation to remain at peace, whilst other neighbour- 
 ing nations were engaged in war, was not admitted to exist. 
 He who was not an ally was an enemy ; and as no intermediate 
 relation was known, so no word had been invented to express 
 such relation. The modern public jurists, who wrote in the 
 Latin language, were consequently driven to the necessity of 
 inventing terms to express those international relations which 
 were unknown to the Pagan nations of antiquity, and which 
 had grown out of a milder dispensation, struggling against 
 the inveterate customs of the dark ages which preceded the 
 revival of letters. Grotius terms neutrals medii, " middle 
 men" (rt). Bynkershoek, in treating of the subject of 
 neutrality, says : " Non hostes appello, qui neutrarum par- 
 tium sunt, nee ex fcedere his illisve quicquam debent ; si 
 quid debeant, Fcederati sunt, non simplicitur Amici " (6). 
 
 (a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9. 
 
 (b) "I call neutrals (non hostes) those who take part with -neither of the 
 belligerent powers, and who are not bound to either by any alliance. If they 
 are so bound, they are no longer neutrals \>u.t allies." Bynkershoek, Qusest. 
 Jur. Pub. lib. i. cap. 9. De Statu belli inter non hostes. "We shall hereafter 
 see that this definition is merely applicable to that species of neutrality which 
 is uot modified by special compact.
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 48.5 
 
 ' There are two species of neutrality recognized by inter- 
 national law. These are 1st, Natural, or perfect neutrality ; species of 
 and 2nd, Imperfect, qualified, or conventional neutrality. 
 
 1. Natural, or perfect neutrality, is that which every 414. 
 sovereign State has a right, independent of positive compact, 
 to observe in respect to the wars in which other States may 
 be engaged. 
 
 The right of every independent State to remain at peace, 
 whilst other States are engaged in war, is an incontestible 
 attribute of sovereignty. It is, however, obviously impossible, 
 that neutral nations should be wholly unaffected by the exist- 
 ence of war between those communities with whom they con- 
 tinue to maintain their accustomed relations of friendship 
 and commerce. The rights of neutrality are connected with 
 correspondent duties. Among these duties is that of impar- 
 tiality between the contending parties. The neutral is the 
 common friend of both parties, and consequently is not at 
 liberty to favour one party to the detriment of the other (c). 
 Bynkershoek states it to be " the duty of neutrals to be every 
 way careful not to interfere in the war, and to do equal and 
 exact justice to both parties. Bello se non interponant," 
 that is to say, "as to what relates to the war, let them not 
 prefer one party to the other, and this is the only proper con- 
 duct for neutrals. A neutral has nothing to do with the 
 justice or injustice of the war ; it is not for him to sit as 
 judge between his friends, who are at war with each other, 
 and to grant or refuse more or less to the one or the other, as 
 he thinks that their cause is more or less just or unjust. If 
 I am a neutral, I ought not to be useful to the one, in order 
 that I may hurt the other " (d). 
 
 These, Bynkershoek adds, are " the duties applicable to the 
 condition of those powers who are not bound by any alliance, 
 
 (c) Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, 
 liv. iii. ch. 7, 103110. 
 
 (d) " Horum officium est, omni modo cavere, ne se bello interponant, et his 
 quam illis partibus sint vel sequiores vel iniquiores. . . . Bello se non 
 interponant, hoc est, in causft belli alterum alter! ne perferant, et eo solo recte 
 defunguntur, qni neutrarum partium sunt. ... Si recte judico, belli 
 justitia vel injustitia nihil quicquam pertinet ad communeni amicum ; ejus 
 non est, inter utrumque amicum, sibi invicem hosteni, sedere judicem, et ex 
 causa fequiore vel iniquiore huic illive plus nimisve tribuere vel negare. Si 
 medins sim, alteri non possum prodesse, ut alteri noceam." Bynkershoek, 
 
 t. Jur. Pub. lib. i. cap. ix.
 
 486 
 
 EIGHTS OF WAR AS TO NEUTRALS. 
 
 415. 
 Imperfect 
 neutrality. 
 
 416. 
 
 Neutrality 
 of the 
 Swiss Con- 
 federation. 
 
 but are in a state of perfect neutrality. These I merely call 
 friends, in order to distinguish them from confederates and 
 allies " (e}. 
 
 2. Imperfect, qualified, or conventional neutrality, is that 
 which is modified by special compact. 
 
 The public law of Europe affords several examples of this 
 species of neutrality. 
 
 1. Thus the political independence of the confederated 
 Cantons of Switzerland, which had so long existed in fact, was 
 first formally recognized by the Germanic Empire, of which 
 they originally constituted an integral portion, at the peace of 
 Westphalia, in 1648. The Swiss Cantons had observed a 
 prudent neutrality during the thirty years war, and from this 
 period to the war of the French Revolution, their neutrality 
 had been, with some slight exceptions, respected by the 
 bordering States. But this neutrality was qualified by the 
 special compact existing between the Confederation, or the 
 separate Cantons and foreign States, forming treaties of 
 alliance or capitulations for the enlistment of Swiss troops in 
 the service of those States. The policy of respecting the 
 neutrality of Switzerland was mutually felt by the two great 
 monarchies of France and Austria, during their long contest 
 for supremacy under the houses of Bourbon and Hapsburg. 
 Such is the peculiar geographical position of Switzerland, 
 between Germany, France, and Italy, among the stupendous 
 mountain chains from which flow the great rivers, the 
 Danube, the Ehine, the Ehone, and the Po, that if the 
 passage through the Swiss territories were open to the Austrian 
 armies, they might communicate freely from the valley of the 
 Danube to the valley of the Po, and thus menace the frontier 
 of France from Basle to Nice. To guard against this im- 
 pending danger, France must be fortified along the whole of 
 this frontier ; whilst, on the other hand, if the passes of the 
 Swiss Alps are shut against her enemy, she may concentrate 
 all her forces upon the Ehine ; since all history shows that 
 the attempts of the Imperialists to penetrate into the southern 
 
 (e) " Exposui compendio quod mihi videtur de officio eorum, qui ex feeder e 
 nihil qnicquam debent, sed perfecte sunt neutrarum partium. Hos simpliciter 
 Amicos appellavi, ut a Fosderatis et Sociis distinguerem. " Bynkersboek, 
 Quaest. Jur. Pub. lib. i. cap. 9.
 
 RIGHTS OF WAR AS TO NEUTRALS. 487 
 
 provinces of France by the Var have ever failed, owing to 
 the remoteness and difficulty of the scene of operations. The 
 advantages to be derived by France from the permanent neu- 
 trality of Switzerland are therefore manifest. Nor is this 
 neutrality less essential to the security of Austria. Let 
 Switzerland once become a lawful battle ground for the 
 bordering States, and the French armies would be sure to 
 anticipate its occupation by the Austrians. The two great 
 Austrian armies operating, whether for offence or defence, the 
 one in Swabia, the other in Italy, being separated by the 
 massive rampart of the Alps, would have no means of com- 
 municating with each other ; whilst the French forces, ad- 
 vancing from the Lake of Constance on the one side, and the 
 great chain of the Alps on the other, might attack either the 
 flank of the Austrian army in Swabia or the rear of its 
 army in Italy (/). 
 
 During the wars of the French Revolution the neutrality 417. 
 of Switzerland was alternately violated by both the great con- f wl j Z , er ". 
 
 land during 
 
 tending parties, and her once peaceful valleys became the wars of 
 bloody scene of hostilities between the French, Austrian, and ^du^on 
 Russian armies. The expulsion of the allied forces, and the 
 subsequent withdrawal of the French army of occupation, 
 were followed by violent internal dissensions which were 
 finally composed by the mediation of Bonaparte as First 
 Consul of the French Republic, in 1803. A treaty of 
 alliance was simultaneously concluded between the Republic 
 and the Helvetic Confederation. According to the stipula- 
 tions of this treaty, the neutrality of Switzerland was recog- 
 nized by France, whilst the Confederation stipulated not to 
 grant a passage through its territories to the armies of France, 
 and to oppose such passage by force of arms in case of its 
 being attempted. The Confederation also engaged to permit 
 the enlisting of eight thousand Swiss troops for the service 
 of France, in addition to the sixteen thousand troops to be 
 furnished according to the capitulation signed on the same day 
 with the treaty. It was, at the same time, expressly declared 
 that its alliance being merely defensive, should not, in any 
 
 Thiers, Histoire du Consulat et de 1' Empire, torn. i. liv. 3, p. 182.
 
 488 EIGHTS OF WAR AS TO NEUTRALS. 
 
 respect, be construed to prejudice the neutrality of Switzer- 
 land (</) . 
 
 41 8. When the allied armies advanced to invade the French 
 the allies territory, in 1813, the Austrian corps under Prince Schwart- 
 iandln Zer " zen ^ er g passed through the territory of Switzerland, and 
 1815. crossed the Ehine at three different places, at Basle, Lauffen- 
 berg, and Shaffhausen, without opposition on the part of 
 the federal troops. The perpetual neutrality of Switzerland 
 was, nevertheless, recognized by the final act of the Congress 
 of Vienna, March 20th, 1815 (h) ; but on the return of 
 Napoleon from the Island of Elba, the allied powers invited 
 the Confederation to accede to the general coalition against 
 France. In the official note delivered by their ministers to 
 the Diet at Zurich, on the 6th of May, 1815, it was stated, 
 that although the allied powers expected that Switzerland 
 would not hesitate to unite with them in accomplishing the 
 common object of alliance, which was to prevent the re- 
 establishment of the usurped revolutionary authority in 
 France, yet they were far from proposing to Switzerland the 
 development of a military force disproportioned to her re- 
 sources and to the usages of her people. They respected the 
 military system of a nation, which, uninfluenced by the 
 spirit of ambition, armed for the single purpose of defending 
 its independence and its tranquillity. The allied powers well 
 knew the importance attached by Switzerland to the mainte- 
 nance of the principle of her neutrality ; and it was not with 
 the purpose of violating this principle, but with the view of 
 accelerating the epoch when it might become applicable in an 
 advantageous and permanent manner, that they proposed to 
 the Confederation to assume an attitude and to adopt ener- 
 getic measures, proportioned to the extraordinary circum- 
 stances of the moment without at the same time forming a 
 rule for the future (i). 
 
 j^f 1 ^ In the answer of the Diet to this note, dated the 12th May, 
 
 the Swiss 1815, it was declared, that the relations which Switzerland 
 
 maintained with the allied powers, and with them only, could 
 
 leave no doubt as to her views and intentions. She would 
 
 (g) Schoell, Histoire des Traites de Paix, torn, ii. ch. 33, p. 339. 
 (h) Wheaton's Hist. Law of Nations, p. 493. 
 (i) Martens, Nouveau Reeueil, torn. ii. p. 166.
 
 EIGHTS OF WAR AS TO NEUTRALS. 489 
 
 persist iu them with that constancy and fidelity which had at 
 all times distinguished the Swiss character. Twenty-two 
 small republics, united together for their security and the 
 maintenance of their independence, must seek for their 
 national strength in the principle of their Confederation. 
 This resulted inevitably from the nature of things, the geo- 
 graphical position, the constitution, and the character of the 
 Swiss people. A consequence of this principle was the neu- 
 trality of Switzerland, recognized as the basis of its future 
 relations with all other States. It followed from the same 
 principle, that the most efficacious participation of Switzer- 
 land in the great struggle which was about to take place, 
 must necessarily consist in the defence of her frontiers. In 
 adopting this course, she did not separate herself from the 
 common cause of the allied powers, which thus became her 
 own national cause. The defence of a frontier fifty leagues 
 in length, serving as 'a point d'appui for the movements of two 
 armies, was in itself a co-operation not only real, but also of 
 the highest importance. More than thirty thousand men had 
 already been levied for this purpose. Determined to main- 
 tain this development of her forces, Switzerland had a right 
 to expect from the favourable disposition of the allied powers, 
 that, so long as she did not claim their assistance, their 
 armies would respect the integrity of her territory. Assur- 
 ances to this effect on their part were absolutely necessary in 
 order to tranquillize the Swiss people, and engage them to 
 support with fortitude the burden of an armament so con- 
 siderable (k). 
 
 On the 20th of May, 1815, a convention was concluded at 
 Zurich, to regulate the accession of Switzerland to the 
 general alliance between Austria, Great Britain, Prussia, and 
 Russia ; by which the allied powers stipulated, that, in case 
 of urgency, where the common interest rendered necessary a 
 temporary passage across any part of the Swiss territory, 
 recourse should be had to the authority of the Diet for that 
 purpose. The left wing of the allied army accordingly passed 
 the Rhine between Basle and Rheinfelden,. and entered 
 Prance through the territory of Switzerland (F). 
 
 (k) Martens, torn. ii. p. 170. (0 Ibid.
 
 490 RIGHTS OF WAR AS TO NEUTRALS. 
 
 420. On the re-establishment of the general peace, a declaration 
 of 1815 as was signed at Paris, on the 20th November, 1815, by the four 
 neutrality. al ^ ec ^ P ow ers and France, by which these five powers formally 
 recognized the perpetual neutrality of Switzerland, and guar- 
 anteed the integrity and inviolability of her territory within 
 its new limits, as established by the final act of the Congress 
 of Vienna, and by the Treaty of Paris of the above date. 
 They also declared that the neutrality and inviolability of 
 Switzerland, and her independence of all foreign influence, 
 were conformable to the true interests of the policy of all 
 Europe, and that no influence unfavourable to the rights of 
 Switzerland, in respect to her neutrality, ought to be drawn 
 from the circumstances which had led to the passage of a 
 part of the allied forces across the Helvetic territory. This 
 passage, freely granted by the cantons in the convention of 
 the 20th May, was the necessary result of the entire adherence 
 of Switzerland to the principles manifested by the allied 
 powers in the treaty of alliance of the 25th March (?ft). 
 
 420 a. At the second Peace of Paris, 1815, the allied powers agreed that the 
 Neutrality neutrality of Switzerland should be extended to a portion of Savoy, 
 of part of at that t i me a p a r t of the kingdom of Sardinia (ri). In 1860, Savoy 
 was transferred by Sardinia to France. By the second article of the 
 Treaty of Transfer it was provided "that his Majesty the King of 
 Sardinia cannot transfer the neutralized parts of Savoy, except on the 
 conditions upon which he himself possesses them, and that it will 
 appertain to his Majesty the Emperor of the French to come to an 
 understanding on this subject, both with the powers represented at the 
 Congress of Vienna, and with the Swiss Confederation, and to give 
 them the guaranties required by the stipulations referred to in this 
 article" (0). No such understanding has, however, yet been arrived 
 at (p). At the outbreak of the Franco-German war, the Swiss Govern- 
 ment declared that Switzerland would maintain and defend during that 
 war her neutrality and the integrity of her territory by all the means 
 in her power ; and that if violence was offered to that neutrality she 
 would energetically repulse every aggression. With reference to the 
 neutralized parts of Savoy, the Swiss Government reminded the powers 
 that Switzerland had a right to occupy that territory, and that the right 
 would be exercised in accordance with the treaties respecting it, should 
 circumstances require its exercise for the defence of Swiss neutrality (q). 
 
 (TO) Martens, torn, iv. p. 186. 
 
 () [Art. iii. Hertslet, Map of Europe, vol. i. p. 346.] 
 
 (o) [Ibid. vol. ii. p. 1430.] 
 
 (p) [Calvo, vol. ii. 1046.] 
 
 (q) [Note of Swiss Government, 18th July, 1870.]
 
 EIGHTS OF WAR AS TO NEUTRALS. 491 
 
 The French Minister, the Due de Grammont, replied that " he had not 
 rejected nor even contested the right so claimed by Switzerland, but 
 had confined himself to declaring that, under the eventualities referred 
 to, it would have to be made the subject of special arrangement between 
 the two governments " (r). The question did not arise, as the war was 
 confined to the north-east portions of France. 
 
 2. The geographical position of Belgium, forming a 421. 
 natural barrier between France on the one side, and Germany ^Belgium. 
 and Holland on the other, would seem to render the indepen- 
 dence and neutrality of the first-mentioned country as 
 essential to the preservation of peace between the latter 
 powers, as is that of Switzerland to its maintenance between 
 France and Austria. Belgium covers the most vulnerable 
 point of the northern frontier of France against invasion 
 from Prussia, whilst it protects the entrance of Germany 
 against the armies of France, on a frontier less strongly for- 
 tified than that of the Khine from Basle to Mayence. But so 
 long as the low countries belonged to the house of Austria, 
 either of the Spanish or the German branch, these provinces 
 had been, for successive ages, the battle-ground on which the 
 great contending powers of Europe struggled for the supre- 
 macy. The security of the independence of Holland against 
 the encroachments of France was provided for by the barrier- 
 treaties concluded at Utrecht, in 1713, and at Antwerp, in 
 1715, between Austria, Great Britain, and Holland, by which 
 the fortified towns on the southern frontier of the Austrian 
 Netherlands were to be permanently garrisoned with Dutch 
 troops. The kingdom of the Netherlands was created by the 
 Congress of Vienna, in 1815, for the purpose of forming a 
 barrier for Germany against France ; and on the dissolution 
 of that kingdom into its original component parts, the per- 
 petual neutrality of Belgium was guaranteed by the five great 
 European powers, and made an essential condition of the re- 
 cognition of her independence, in the treaties for the separa- 
 tion of Belgium from Holland (s). 
 
 In 1870, treaties were entered into by England with France and 421a. 
 Prussia for the maintenance of the neutrality of Belgium during the Belgian 
 war, each of the belligerents binding themselves to co-operate with " 
 
 (r) [Archives Diplomatiques, 1871-2, Pt. I. p. 262.] 
 (a) Wheaton's Hist. Law of Nations, p. 552.
 
 492 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 422. 
 
 Neutrality 
 of Cracow. 
 
 423. 
 
 Conven- 
 tional or 
 guaranteed 
 neutrality. 
 
 England in case this neutrality was violated by the other. These treaties 
 were to last during the war, and for twelve months after the ratification 
 of any treaty of peace (f). 
 
 3. We have already seen that by the final act of the Con- 
 gress of Vienna, 1815, art. 6, the city of Cracow, with its 
 territory, is declared to be a perpetually free, independent, 
 and neutral State, under the joint protection of Austria, 
 Prussia, and Kussia(%). The neutrality, thus created by 
 special compact, and guaranteed by the three protecting 
 powers, is made dependent upon the reciprocal obligation of 
 the city of Cracow not to afford an asylum, or protection, to 
 fugitives from justice, or military deserters belonging to the 
 territories of those powers. How far the neutrality of the 
 free and independent State thus created has been actually 
 respected by the protecting powers, or how far the successive 
 temporary occupations of its territory by their military forces, 
 and how far their repeated forcible interference in its internal 
 affairs, may have been justified by the nonfulfilment of the 
 above obligation on the part of Cracow, or by other circum- 
 stances authorizing such interference according to the general 
 principles of international law, are questions which have given 
 rise to diplomatic discussions between the great European 
 powers, contracting parties to the treaties of Vienna, but 
 which are foreign to the present object (x). 
 
 The permanent neutrality of Switzerland, Belgium, and 
 Cracow, has thus been solemnly recognized as part of the 
 public law of Europe. But the conventional neutrality thus 
 created differs essentially from that natural or perfect neu- 
 trality which every State has a right to observe, independent 
 of special compact, in respect to the wars in which other 
 States may be engaged. The consequences of the latter 
 species of neutrality only arise in case of hostilities. It does 
 not exist in time of peace, during which the State is at liberty 
 to contract any eventual engagements it thinks fit as to poli- 
 tical relations with other States. A permanent neutral State, 
 on the other hand, by accepting this condition of its political 
 
 (<) [Hertslet, Map of Europe, vol. iii. pp. 1886 1891.] 
 
 (u) Vide supra, Pt. I. ch. 2, 34, note (d). 
 
 (;e) Wheaton's Hist. Law of Nations, pp. 441445.
 
 RIGHTS OF WAR AS TO NEUTRALS. 493 
 
 existence, is bound to avoid in time of peace every engage- 
 ment which might prevent its observing the duties of neu- 
 trality in time of war. As an independent State, it may 
 lawfully exercise, in its intercourse with other States, all the 
 attributes of external sovereignty. It may form treaties of 
 amity, and even of alliance with other States ; provided it 
 does not thereby incur obligations, which, though perfectly 
 lawful in time of peace, would prevent its fulfilling the duties 
 of neutrality in time of war. Under this distinction, treaties 
 of offensive alliance, applicable to a specific case of war be- 
 tween any two or more powers, or guaranteeing their posses- 
 sions, are of course interdicted to the permanently neutral 
 State. But this interdiction does not extend to defensive 
 alliances formed with other neutral States for the maintenance 
 of the neutrality of the contracting parties against any power 
 by which it might be threatened with violation (?/). 
 
 The question remains, whether this restriction on the sove- 
 reign power of the permanently neutral State is confined to 
 political alliances and guaranties, or whether it extends to 
 treaties of commerce and navigation with other States. Here 
 it again becomes necessary to distinguish between the two 
 cases of natural and perfect, or qualified and conventional 
 neutrality. In the case of ordinary neutrality, the neutral 
 State is at liberty to regulate its commercial relations with 
 other States according to its own view of its national in- 
 terests, provided this liberty be not exercised so as to affect 
 that impartiality which the neutral is bound to observe to- 
 wards the respective belligerent powers. Vattel states, that 
 the impartiality which a neutral nation is bound to observe, 
 relates solely to the war. " In whatever does not relate to 
 the war, a neutral and impartial nation will not refuse to one 
 of the belligerent parties, on account of its present quarrel, 
 what it grants to the other. This does not deprive the 
 neutral of the liberty of making the advantage of the State 
 the rule of its conduct in its negotiations, its friendly connec- 
 tions, and its commerce. When this reason induces it to 
 give preferences in things which are at the free disposal of 
 th possessor, the neutral nation only makes use of its right, 
 
 (y) Arendt, Essai sur la Neutrality de la Belgique, pp. 8795.
 
 494 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 424. 
 
 Neutrality 
 modified 
 by a 
 limited 
 alliance 
 with one 
 of the 
 belligerent 
 parties. 
 
 and is not chargeable with partiality. But to refuse any of 
 these things to one of the belligerent parties, merely because 
 he is at war with the other, and in order to favour the 
 latter, would be departing from the line of strict neu- 
 trality " (z). 
 
 These general principles must be modified in their appli- 
 cation to a permanently neutral State. The liberty of 
 regulating its commercial relations with other foreign States, 
 according to its own views of its national interests, which is 
 an essential attribute of national independence, does not 
 authorize the permanently neutral State to contract obliga- 
 tions in time of peace inconsistent with its peculiar duties in 
 time of war. 
 
 Neutrality may also be modified by antecedent engage- 
 ments, by which the neutral is bound to one of the parties to 
 the war. Thus the neutral may be bound by treaty, previous 
 to the war, to furnish one of the belligerent parties with a 
 limited succour in money, troops, ships, or munitions of war, 
 or to open his ports to the armed vessels of his ally, with their 
 prizes. The fulfilment of such an obligation does not neces- 
 sarily forfeit his neutral character, nor render him the enemy 
 of the other belligerent nation, because it does not render him 
 the general associate of its enemy (a). 
 
 How far a neutrality, thus limited, may be tolerated by the 
 opposite belligerent, must often depend more upon considera- 
 tions of policy than of strict right. Thus, where Denmark, 
 in consequence of a previous treaty of defensive alliance, fur- 
 nished limited succours in ships and troops to the Empress 
 Catharine II. of Bussia, in the war of 1788 against Sweden, 
 the abstract right of the Danish court to remain neutral, 
 except so far as regarded the stipulated succours, was scarcely 
 contested by Sweden and the allied mediating powers. But 
 it is evident, from the history of these transactions, that if 
 the war had continued, the neutrality of Denmark would not 
 have been tolerated by these powers, unless she had withheld 
 from her ally the succours stipulated by the treaty of 
 
 (z) Vattel, Droit des Gens, liv. iii. ch. 7, 104. 
 
 (a) Bynkershoek, Qusest. Jur. Pub. lib. i. cap. ix. Vattel, Droit des Gens, 
 liv. iii. ch. 6, 101 105. As to the general principles to be applied to such 
 
 treaties, and when the casus fcederis arises, vide supra, Pt. III. ch. 2, " 
 
 280.
 
 RIGHTS OF WAR AS TO NEUTRALS. 495 
 
 1773, or Russia had consented to dispense with its fulfil- 
 ment (b). 
 
 " There remains," says Sir E. Phillimore, "the grave question whether 424a. 
 a State has any right to stipulate in time of peace, that, when the time Right to 
 of war arrives, it will do the act of a belligerent and yet claim the ma ' ie . Slic "- 
 immunity of a neutral." The learned author concludes that a State 
 has no right to enter into such a stipulation, and then to claim neutrality 
 while fulfilling it ; and this seems to be the better opinion (c). 
 
 It has happened, not unfrequently, that neutral subjects who sympa- 424b. 
 thise with a belligerent have raised loans for the purpose of assisting Loans to 
 him in the war. In 1823, the Law Officers of the Crown gave an opinion 
 to the effect that such subscriptions for the use of one of two belligerents, 
 entered into by individual subjects of a neutral, are inconsistent with 
 that neutrality, and contrary to the law of nations. Such subscriptions 
 would not give the other belligerent the right to consider this as an act 
 of hostility, although, if carried to any considerable extent, they might 
 afford a just ground of complaint. If a loan is purely commercial, and 
 real interest be charged for the money, it is then no infringement of 
 neutrality (d\ In 1873, Mr. Gladstone expressed a strong disapproval 
 in the Hoiise of Commons of a gratuitous loan then being raised in 
 England for the Spanish Pretender, Don Carlos (e). It seems also to 
 be considered inconsistent with neutrality in America to allow loans to 
 be raised by a belligerent in a neutral State (/). 
 
 Another case of qualified neutrality arises out of treaty 425. 
 stipulations antecedent to the commencement of hostilities, Q uallfie . d 
 
 neutrality, 
 
 by which the neutral may be bound to admit the vessels of arising out 
 war of one of the belligerent parties, with their prizes, into dent* treaty 
 his ports, whilst those of the other may be entirely excluded, stipula- 
 or only admitted under limitations and restrictions. Thus, admitting 
 by the treaty of amity and commerce of 1778, between the the armed 
 United States and France, the latter secured to herself two prizes of 
 special privileges in the American ports : 1. Admission for ^renfinto 
 her privateers, with their prizes, to the exclusion of her the neutral 
 enemies. 2. Admission for her public ships of war, in case whilst 
 of urgent necessity, to refresh, victual, repair, &c., but not t ose f 
 exclusively of other nations at war with her. Under these are ex- 
 stipulations, the United States not being expressly bound to cluded - 
 
 (b) Annual Register, vol. xxx. pp. 181, 182. State Papers, p. 292. Eggers, 
 Leben Von Bernstorf, 2 abtheil, pp. 118195. 
 
 (c) [Phillimore, vol. iii. 146. Calvo, vol. ii. 1062.] 
 
 (d) [See Phillimore, vol. iii. Appendix, p. 928. See De Wutz v. 
 Hendficks, Moore, Com. Pleas, 586.] 
 
 (e) [The Times, 25th April, 1873.] 
 
 (/") [Field, International Code (2nd ed.), p. 616. Rennet v. Chambers, 
 14 Howard, 38.]
 
 496 RIGHTS OF WAR AS TO NEUTRALS. 
 
 exclude the public ships of the enemies of France, granted 
 an asylum to British vessels and those of other powers at 
 war with her. Great Britain and Holland still complained 
 of the exclusive privileges allowed to France in respect to her 
 privateers and prizes, whilst France herself was not satisfied 
 with the interpretation of the treaty hy which the public 
 ships of her enemies were admitted into the American ports. 
 To the former, it was answered by the American govern- 
 ment, that they enjoyed a perfect equality, qualified only by 
 the exclusive admission of the privateers and prizes of 
 France, which was the effect of a treaty made long before, for 
 valuable considerations, not with a view to circumstances 
 such as had occurred in the war of the French Revolution, 
 nor against any nation in particular, but against all nations 
 in general, and which might, therefore, be observed without 
 giving just offence to any (g). 
 
 On the other hand, the minister of France asserted the 
 right of arming and equipping vessels for war, and of en- 
 listing men, within the neutral territory of the United States. 
 Examining this question under the law of nations and the 
 general usage of mankind, the American government pro- 
 duced proofs, from the most enlightened and approved writers 
 on the subject, that a neutral nation must, in respect to the 
 war, observe an exact impartiality towards the belligerent 
 parties ; that favours to the one, to the prejudice of the other, 
 would import a fraudulent neutrality, of which no nation 
 would be the dupe ; that no succour ought to be given to 
 either, unless stipulated by treaty, in men, arms, or anything 
 else, directly serving for war ; that the right of raising troops 
 being one of the rights of sovereignty, and consequently 
 appertaining exclusively to the nation itself, no foreign power 
 can levy men within the territory without its consent ; that, 
 finally, the Treaty of 1778, making it unlawful for the 
 enemies of France to arm in the United States, could not be 
 construed affirmatively into a permission to the French to 
 arm in those ports, the treaty being express as to the prohi- 
 bition, but silent as to the permission (h). 
 
 (g) Mr. Jefferson's Letter to Mr. Hammond and Mr. Van Berckel, Sept. 9, 
 1793. Waite's State Papers, vol. i. pp. 169, 172. 
 
 (h) Mr. Jefferson's Letter to Mr. G. Morris, Aug. 16, 1793. Waite's State 
 Papers, vol. i. p. 140.
 
 RIGHTS OF WAR AS TO NEUTRALS. 497 
 
 The rights of war can be exercised only within the terri- TT 42 6- 
 
 . . Hostilities 
 
 tory of the belligerent powers, upon the high seas, or in a within the 
 
 territory belonging to no one. Hence it follows, that hos- ^"^JJ^f 
 tilities cannot lawfully be exercised within the territorial State. 
 jurisdiction of the neutral State, which is the common friend 
 of both parties (i). 
 
 This exemption extends to the passage of an army or fleet 427. 
 through the limits of the territorial jurisdiction, which can th ^uTi 
 hardly be considered an innocent passage, such as one nation the neutral 
 has a right to demand from another ; and, even if it were 
 such an innocent passage, is one of those imperfect rights, 
 the exercise of which depends upon the consent of the pro- 
 prietor, and which cannot be compelled against his will. It 
 may be granted or withheld, at the discretion of the neutral 
 State ; but its being granted is no ground of complaint on 
 the part of the other belligerent power, provided the same 
 privilege is granted to him, unless there be sufficient reasons 
 for withholding it (j). 
 
 The extent of the maritime territorial jurisdiction of every 
 State bordering on the sea has already been described (k). 
 
 Not only are all captures made by the belligerent cruisers 428 - 
 within the limits of this jurisdiction absolutely illegal and within the 
 void, but captures made by armed vessels stationed in a bay ma " tlin e 
 or river, or in the mouth of a river, or in the harbour of a jurisdic- 
 neutral State, for the purpose of exercising the rights of war *^ r by 
 from this station, are also invalid. Thus, where a British stationed 
 privateer stationed itself within the river Mississippi, in the ^ hovering 
 neutral territory of the United States, for the purpose of exer- on the 
 cising the rights of war from the river, by standing off and 
 on, obtaining information at the Balize, and overhauling 
 vessels in the course down the river, and made the capture 
 in question within three English miles of the alluvial islands 
 formed at its mouth, restitution of the captured vessel was 
 decreed by Sir W. Scott. So, also, where a belligerent ship, 
 lying within neutral territory, made a capture with her boats 
 
 (i) Bynkershoek, Qucest. Jur. Pub. lib. i. cap. 8. Martens, des Prises et 
 Reprises, ch. 2, 18. 
 
 (j) Vide ante, Pt. II. ch. iv. 193. Vatlcl, Droit des Gens, liv. iii. ch. 7, 
 119131. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, 13. Sir W. 
 Scott, 3 C. Rob. 353. 
 
 () Vide ante, Pt. II. ch. 4, 177180. 
 
 K K
 
 498 RIGftTS OF WAR AS TO NEUTRALS. 
 
 out of the neutral territory, the capture was held to be in- 
 valid ; for though the hostile force employed was applied to 
 the captured vessel lying out of the territory, yat no such 
 use of a neutral territory for the purposes of war is to be 
 permitted. This prohibition is not to be extended to remote 
 uses, such as procuring provisions and refreshments, which 
 the law of nations universally tolerates ; but no proximate 
 acts of war are in any manner to be allowed to originate on 
 neutral ground (I). 
 
 428 a. In 1 863, during the civil war, the United States' merchant-ship 
 2%T C7t Chesapeake, while on a voyage from New York to Portland, was seized 
 pealce upon by a number of her passengers, who killed and wounded some of 
 
 the crew, and put the rest on shore. They ran the vessel to several small 
 ports in Nova Scotia, representing her as the Confederate war-steamer 
 Retribution, and finally abandoned her off Sambro, a port of Nova 
 Scotia, The Chesapeake was there found and captured by a United States 
 ship-of-war, and taken to Halifax. There were then on board two British 
 subjects who had been employed by the passengers as engineers ; and 
 Wade, one of the ringleaders, was discovered on board a small schooner 
 lying near where The Chesapeake had been abandoned. The three men 
 were made prisoners, and conveyed to Halifax. In the discussion 
 resulting from this case, the United States disclaimed any intention 
 of exercising jurisdiction in the waters of Nova Scotia, and explained 
 that their naval authorities had acted " under the influence of a patriotic 
 and commendable zeal to bring to punishment outlaws who had offended 
 against the peace and dignity of both countries" (m). It was admitted 
 that these acts were in strictness of law "a violation of the law of 
 nations, and of the friendly relations existing between the two countries." 
 This was deemed a satisfactory explanation by Her Majesty's Govern- 
 ment. England was entitled to look upon this capture as, primd facie, 
 a belligerent act. The civil war was flagrant at the time, and The 
 Chesapeake had been originally seized by persons representing them- 
 selves as acting on behalf of the Confederates. As a matter of fact, 
 they failed to produce any valid belligerent commission ; but this did 
 not give the United States any right to capture the ship in British 
 waters. Beyond seizing the vessel, the passengers had committed no 
 piratical acts. They were thus entitled to prove themselves belligerents 
 if they could, and their failure to do this laid them open to the charge of 
 piracy. The United States demanded the extradition of the persons 
 captured with the vessel, but the British Government insisted on their 
 being first released and set upon British soil, and they managed to 
 escape before they could be re-arrested. The ship itself was restored 
 to the owners. Some of the parties concerned afterwards appeared in 
 
 (/) The Anna, 5 C. Rob. 373 ; The Twee Gebroeders, July, 1800, 3 ibid. 162. 
 (m) [Mr. Seward to Lord Lyons, 9th Jan. 1864.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 499 
 
 Canada, and were apprehended, hut the Court decided that they could 
 not be extradited (??,). 
 
 In 1864, a most flagrant violation of neutral jurisdiction was perpe- 428b. 
 trated by a United States ship-of-war. Tlie Florida, the well-known Capture 
 Confederate cruiser, entered the port of Bahia, in Brazil, to obtain pro- S, ., 
 visions and coals, and to effect some necessary repairs ; and while there 
 The JVachusett, a Federal man-of-war, also entered the port. The 
 Brazilian authorities took all necessary measures to prevent a conflict, 
 and assigned a berth in the harbour to each ship. During the night, 
 and while a large part of The Florida's crew were on shore, The Wa- 
 chusett steamed across the harbour, fastened a cable to The Florida, 
 towed her out to sea, and escaped from the pursuit of the local forces. 
 The Brazilian Government demanded an explanation and reparation. 
 Mr. Seward, in a somewhat haughty reply, admitted " that the President 
 would disavow and regret the proceedings at Bahia," but he persisted 
 in maintaining that The Florida was a pirate, and " that the harbouring 
 and supplying piratical ships and their crews in Brazilian Ports were 
 wrongs and injuries for which Brazil justly owes reparation to the 
 United States." The captured crew of The Florida were, however, set 
 at liberty, and the vessel herself sank in Hampton Roads by " an unfor- 
 seen accident which cast no responsibility upon the United States " (o). 
 The absurdity of calling The Florida a pirate at that period of the war 
 is manifest ; but had she been the most atrocious of pirates, her capture 
 under such circumstances would have been wholly unjustifiable. 
 
 Although the immunity of the neutral territory from the 429. 
 exercise of any act of hostility is generally admitted, yet an ^^ej S i nto 
 exception to it has been attempted to be raised in the case of the neutral 
 a hostile vessel met on the high seas and pursued ; which it anTthere 
 is said may, in the pursuit, be chased within the limits of a captured, 
 neutral territory. The only text writer of authority who has 
 maintained this anomalous principle is Bynkershoek (p). 
 He admits that he had never seen it mentioned in the 
 writings of the public jurists, or among any of the European 
 nations, the Dutch only excepted ; thus leaving the inference 
 open, that even if reasonable in itself, such a practice never 
 rested upon authority, nor was sanctioned by general usage. 
 The extreme caution, too, with which he guards this license 
 to belligerents, can hardly be reconciled with the practical 
 
 (n) [See Parl. Papers, 1876, N. America (No. 10). Wheaton, by Dana, 
 
 note 207.] 
 
 (o) [Parl. Papers, 1873, N. America (No. 2), pp. 176178.] 
 
 (p) Quaest. Jur. Pub. lib. i. cap. 8. This opinion of Bynkershoek, in which 
 
 Casaregis seems to concur, is reprobated by several other public jurists. 
 
 Azuni, Diritto Maritime, Pt. I. c. 4, art. 1. Valin, Traite des Prises, ch. 4, 
 
 3, No. 4, art. 1. D'Habreu, Sobre las Prisas, Pt. I. ch. 4, 15.
 
 500 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 exercise of it ; for how is an enemy to be pursued in a hostile 
 manner within the jurisdiction of a friendly power, without 
 imminent danger of injuring the subjects and property of the 
 latter ? Diun fervet opus in the heat and animation excited 
 against the flying foe, there is too much .reason to presume 
 that little regard will be paid to the consequences that may 
 ensue to the neutral. There is, then, no exception to the 
 rule, that every voluntary entrance into neutral territory, with 
 hostile purposes, is absolutely unlawful. " When the fact is 
 established," says Sir W. Scott, " it overrules every other 
 consideration. The capture is done away ; the property must 
 be restored, notwithstanding that it may actually belong to the 
 enemy" (<?). 
 
 Though it is the duty of the captor's country to make resti- 
 the ground tution of the property thus captured within the territorial 
 jurisdiction of the neutral State, yet it is a technical rule 
 of the Prize Courts to restore to the individual claimant, in 
 such a case, only on the application of the neutral government 
 whose territory has been thus violated. This rule is founded 
 upon the principle, that the neutral State alone has been 
 injured by the capture, and that the hostile claimant has no 
 right to appear for the purpose of suggesting the invalidity of 
 the capture (r). 
 
 of violation 
 
 territory 
 Sanctioned 
 by the 
 
 state 
 
 430 a. 
 
 Capture in 
 neutral 
 
 rs ' 
 
 431. 
 
 neutral 
 State of 
 
 This can hardly be called a technical rule, and Mr. Wheaton himself 
 admits it to be founded upon principle. The Supreme Court has 
 recently determined that neither an enemy, nor a neutral acting the 
 part of an enemy, can demand restitution on the sole ground of capture 
 in neutral waters. This fact alone will not prevent condemnation if 
 done without intent to violate neutral jurisdiction (s). Lord Stowell 
 also said long ago, " It is a known principle of this Court that the 
 privilege of territory will not itself enure to the protection of property, 
 unless the State from which that protection is due steps forward to 
 assert the right " () 
 
 Where a capture of enemy's property is made within 
 neutral territory, or by armaments unlawfully fitted out within 
 the same, it is the right as well as the duty of the neutral 
 
 (q) Tlie Vrow Anna Catharina, 5 C. Rob. 15. 
 
 (r) Case of The Etrusco, 3 C. Rob. Note ; The Anne, 3 Wheaton, 447. 
 (s) {The Adela, 6 Wallace, 266.] 
 
 (t) [The Purissima Conception, 6 C. Rob. 45. See also, The Sir William 
 Peel, 5 Wallace, 585.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 501 
 
 State, where the property thus taken comes into its possession, property 
 to restore it to the original owners. This restitution is w ithin its 
 generally made through the agency of the courts of admiralty JJJJ 8 ^" 
 and maritime jurisdiction. Traces of the exercise of such a otherwise 
 jurisdiction are found at a very early period in the writings of ^ ^ a ' 
 Sir Leoline Jenkins, who was Judge of the English High neutrality. 
 Court of Admiralty in the reigns of Charles II. and James II. w jthin the 
 In a letter to the king in council, dated October 11, 1675, 
 relating to a French privateer seized at Harwich with her 
 prize, (a Hamburg vessel bound to London,) Sir Leoline states 
 several questions arising in the case, among which was, 
 "Whether this Hamburgher, being taken within one of your 
 Majesty's chambers, and being bound for one of your ports, 
 ought not to be set free by your Majesty's authority, notwith- 
 standing he were, if taken upon the high seas out of those 
 chambers, a lawful prize. I do humbly conceive he ought to 
 be set free, upon a full and clear proof that he was within one 
 of the king's chambers at the time of the seizure, which he, 
 in his first memorial, sets forth to have been eight leagues at 
 sea, over against Harwich. King James (of blessed memory) 
 his direction, by proclamation, March 2nd, 1604, being that 
 all officers and subjects, by sea and land, shall rescue and 
 succour all merchants and others, as shall fall within the 
 danger of such as shall await the coasts, in so near places 
 to the hinderance of trade outward and homeward ; and all 
 foreign ships, when they are within the lung's chambers, being 
 understood to be within the places intended in those direc- 
 tions, must be in safety and indemnity, or else when they are 
 surprised must be restored to it, otherwise they have not the 
 protection worthy of your Majesty, and of the ancient reputa- 
 tion of those places. But this being a point not lately settled 
 by any determination, (that I know of, in case where the 
 king's chambers precisely, and under that name, came in 
 question,) is of that importance as to deserve your Majesty's 
 declaration and assertion of that right of the crown by an act 
 of State in Council, your Majesty's coasts being now so much 
 infested with foreign men-of-war, that there will be frequent 
 use b'f such a decision " (u). 
 
 (11) Life and Works of Sir L. Jenkins, vol. ii. p. 727.
 
 502 EIGHTS OF WAR AS TO NEUTRALS. 
 
 Whatever doubts there may be as to the extent of the terri- 
 torial jurisdiction thus asserted, as entitled to the neutral 
 immunity, there can be none as to the sense entertained by 
 this eminent civilian respecting the right and the duty of the 
 neutral sovereign to make restitution where his territory is 
 violated. 
 
 432. When the maritime war commenced in Europe, in 1793, 
 the neutral ^ e American government, which had determined to remain 
 jurisdiction neutral, found it necessary to define the extent of the line of 
 coastfs and territorial protection claimed by the United States on their 
 ba^Ld" 5 coasts, for the purpose of giving Affect to their neutral rights 
 rivers. and duties. It was stated on this occasion, that governments 
 and writers on public law had been much divided in opinion 
 as to the distance from the sea-coast within which a neutral 
 nation might reasonably claim a right to prohibit the exercise 
 of hostilities. The character of the coast of the United 
 States, remarkable in considerable parts of it for admitting no 
 vessel of size to pass near the shore, it was thought would 
 entitle them in reason to as broad a margin of protected 
 navigation as any nation whatever. The government, how- 
 ever, did not propose,, at that time, and without amicable 
 communications with the foreign powers interested in that 
 navigation, to fix on the distance to which they might ulti- 
 mately insist on the right of protection. President Washington 
 gave instructions to the executive officers to consider it as 
 restrained, for the present, to the distance of one sea league, 
 or three geographical miles, from the sea-shores. This dis- 
 tance, it was supposed, could admit of no opposition, being 
 recognized by treaties between the United States, and some 
 of the powers with whom they were connected in commercial 
 intercourse, and not being more extensive than was claimed 
 by any of them on their own coasts. As to the bays and 
 rivers, they had always been considered as portions of the 
 territory, both under the laws of the former colonial govern- 
 ment and of the present union, and their immunity from 
 belligerent operations was sanctioned by the general law and 
 usage of nations. The 25th article of the treaty of 1794, 
 between Great Britain and the United States, stipulated that 
 " neither of the said parties shall permit the ships or goods 
 belonging to the citizens or subjects of the other, to be taken
 
 RIGHTS OF WAR AS TO NEUTRALS. o()3 
 
 within cannon-shot of the coast, nor in any of the bays, ports, 
 or rivers, of their territories, hy ships of war, or others, having 
 commissions from any prince, republic, or State whatever. 
 But in case it should so happen, the party whose territorial 
 rights shall thus have been violated, shall use his utmost 
 endeavours to obtain from the offending party full and ample 
 satisfaction for the vessel or vessels so taken, whether the 
 same be vessels of war or merchant vessels." Previously to 
 this treaty with Great Britain, the United States w r ere bound 
 by treaties with three of the belligerent nations, (France, 
 Prussia, and Holland,) to protect and defend, " by all the 
 means in their power," the vessels and effects of those nations 
 in their ports or waters, or on the seas near their shores, and 
 to recover and restore the same to the right owner when 
 taken from them. But they were not bound to make com- 
 pensation if all the means in their power were used, and 
 failed in their effect. Though they had, when the war com- 
 menced, no similar treaty with Great Britain, it was the 
 President's opinion that they should apply to that nation the 
 same rule which, under this article, was to govern the others 
 above-mentioned ; and even extend it to captures made on 
 the high seas, and brought into the American ports, if made 
 by vessels which had been armed within them. In the con- 
 stitutional arrangement of the different authorities of the 
 American Federal Union, doubts were at first entertained 
 whether it belonged to the executive government, or the 
 judiciary department, to perform the duty of inquiring into 
 captures made within the neutral territory, or by armed 
 vessels originally equipped or the force of which had been 
 augmented within the same, and of making restitution to the 
 injured party. But it has been long since settled that this 
 duty appropriately belongs to the federal tribunals acting as 
 courts of admiralty and maritime jurisdiction (x). 
 
 It has been judicially determined that this peculiar juris^ .. 43 3- 
 diction to inquire into the validity of captures made in of t ^ e 
 violation of the neutral immunity, will be exercised only for neutral 
 
 jurisdiction 
 
 (x) Mr. Jefferson's Letter to M. Genet, Nov. 8, 1793. Waite's State Papers, 
 vol. "vi. p. 195. Opinion of the Attorney-General on the capture of the 
 British ship Grange, May 14, 1793. Ibid. vol. i. p. 75. Mr. Jefferson's 
 Letter to Mr. Hammond, Sept. 5, 1793. Waita's State Papers, vol. i. p. 165. 
 Wheaton's Reports, vol. iv. p. 65, Note (a).
 
 504 RIGHTS OF WAR AS TO NEUTRALS. 
 
 to restore the purpose of restoring the specific property, when voluntarily 
 illegal brought within the territory, and does not extend to the 
 capture. infliction of vindictive damages, as in ordinary cases of mari- 
 time injuries. And it seems to be doubtful whether this 
 jurisdiction will be exercised where the property has been 
 once carried infra prcesidia of the captor's country, and there 
 regularly condemned in a competent Court of Prize. How- 
 ever this may be in cases where the property has come into 
 the hands of a bond fide purchaser, without notice of the 
 unlawfulness of the capture, it has been determined that the 
 neutral court of admiralty will restore it to the original owner, 
 where it is found in the hands of the captor himself, claiming 
 under the sentence of condemnation. But the illegal equip- 
 ment will not affect the validity of a capture, made after the 
 cruise to which the outfit had been applied, is actually 
 terminated (y). 
 
 434. An opinion is expressed by some text writers, that belli- 
 
 as^hnntn g eren ^ cruisers, not only are entitled to seek an asylum and 
 
 neutral hospitality in neutral ports, but have a right to bring in and 
 
 pendent on se U their prizes within those ports. But there seems to be 
 
 the consent nothing in the established principles of public law which can 
 
 neutral prevent the neutral State from withholding the exercise of 
 
 State. ^jg privilege impartially from all the belligerent powers ; or 
 
 even from granting it to one of them, and refusing it to 
 
 others, where stipulated by treaties existing previous to the 
 
 war. The usage of nations, as testified in their marine 
 
 ordinances, sufficiently shows that this is a rightful exercise 
 
 of the sovereign authority which every State possesses, to 
 
 regulate the police of its own sea-ports, and to preserve the 
 
 public peace within its own territory. But the absence of a 
 
 positive prohibition implies a permission to enter the neutral 
 
 ports for these purposes (2). 
 
 434a. The reception or exclusion of belligerent cruisers and their prizes in 
 Reception neutral ports is a matter entirely at the discretion of the neutral govern- 
 of belli- ment. When there are no prohibitions, or conditions of entry, belligerent 
 
 gerent 
 
 (y) TheAmistadde Rues, 5 Wheaton, 385 ; La Nrrcyda, 8 ibid. 108 ; Tlie 
 Fanny, 9 ibid. 658 ; The Arrogante Barcelones, 7 ibid. 519 ; The Santissima 
 Trinidad, ibid. 283. 
 
 (z) Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 15. Vattel, liv. iii. ch. 7, 
 132. Valin, Comm. surl'Ordonn. de la Marine, torn. ii. p. 272. 
 
 [Positive prohibitions are now the rule.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 505 
 
 ships of war are entitled to expect all the ordinary hospitalities of a cruisers 
 friendly port. If the neutral government chooses to make regulations for m neutral 
 the admission of ships into its ports, foreign ships must obey them. A 
 neutral is, however, not required by the law of nations to make any such 
 rules, or to place any restrictions upon the liberty which it accords of pur- 
 chasing provisions, coal, and other supplies (not being arms or munitions 
 of war). It is not a rule of international law that the supplies purchased 
 should be limited to any particular quantity. So long as the neutral 
 supplies both parties equally, neither have any right to complain (a). 
 
 There is what constitutes a real exception to the rule that neutrals 434 b. 
 may not assist belligerent ships of war in carrying on their -warlike Repairs in 
 operations. Although such ships of war may not purchase arms or ^l^* 
 ammunition, or recruit men, in the neutral port, yet they may be 
 repaired and provisioned in it. This is in reality assisting the belli- 
 gerent ; for the cruiser in fact refits herself for war by repairing her 
 engines, quite as much as by repairing her gun-carriages. But she is 
 allowed to do the one and not the other (6). The reason for permitting 
 her to be refitted seems to be, that unless this were allowed she might 
 be unable to leave the neutral port. It would be inhuman to compel 
 her to go to sea without provisions, or in an tinseaworthy state ; yet 
 the neutral, in permitting her to enter his harbour, does not bargain 
 that she shall remain there always, or at all events till the end of the 
 war. 
 
 On the outbreak of a maritime war, neutral States generally make 434 c. 
 some rules on this subject. During the American civil war, England English 
 prohibited all ships of war and privateers of either party from using any Tu ^ 
 port or waters subject to. British jurisdiction, as a station or place of A Unn ? 
 resort for any warlike purpose, or far obtaining any facilities of warlike c j v ii var . 
 equipment ; and no vessel of war or privateer of one belligerent was 
 to be permitted to leave any British port, from which any vessel 
 of the other belligerent (whether a ship of war or a merchant vessel) 
 should have previously departed, until twenty-four hours after the 
 departure of the latter. Any ship of war or privateer of either belli- 
 gerent entering British waters was to be required to depart within 
 twenty-four hours, except in case of stress of weather, or of requiring 
 repairs, or necessaries for the crew. As soon as she was repaired, or had 
 obtained her necessary stores, she was to be required to depart forth- 
 with. Nothing but provisions requisite for the subsistence of the crew, 
 and so much coal as would carry the ship to the nearest port of her own 
 country, or to some nearer destination, were to be supplied to ships of 
 war or privateers ; the coal only to be supplied once in three months to 
 the same ship, unless this was relaxed by special permission (c). 
 
 A captor, who brought his prizes into British waters, was to be ~ 
 requested to depart and remove such prizes immediately. A vessel p r i 7 
 'bond fide converted into a ship of war was, however, not to be deemed a brought 
 
 into British 
 ports. 
 
 (a) ["British counter-case at Geneva. Parl Papers, N. America, 1872 
 (No. 4), p. 13. Ortolan, Diplomatic de la Mer, vol. ii. p. 283.] 
 
 (b} [Montague Bernard, Neutrality of England, p. 400.] 
 
 (c) [Earl Russell to the Admiralty, &c. London Gazette, Dec. 15th, 1863.]
 
 50G 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 484 e. 
 Rules 
 of other 
 countries. 
 
 prize. In case of stress of weather, or other extreme and unavoidable 
 necessity, the necessary time for removing the prize was to be allowed. 
 If the prize was not removed by the prescribed time, or if the capture 
 was made in violation of British jurisdiction, the prize was to be 
 detained until Her Majesty's pleasure should be made known. Cargoes 
 were to be subject to the same rules as prizes (d). A subsequent order 
 provided that no ship of war of either belligerent should be allowed 
 to remain in a British port for the purpose of being dismantled or 
 sold (e). 
 
 France prohibited all ships of war or privateers of either party from 
 remaining in her ports with prizes for more than twenty-four hours, 
 except in case of imminent perils of the sea. No prize goods were 
 permitted to be sold in French territory (/). Prussia remained content 
 with ordering her subjects not to engage in the equipment of privateers, 
 and to obey the general rules of international law (g). The Belgian rule 
 commanded all privateers to depart immediately, unless prevented by 
 absolute necessity. The Dutch regulation was the same. Neither 
 country made any provision as regards ships of war (li). In the subse- 
 quent wars between Brazil and Paraguay, and Spain and Chile, Holland 
 prohibited ships of war or privateers with prizes, from entering or 
 refitting in her harbours, unless overtaken by evident necessity. Ships 
 of war without prizes might, however, remain an unlimited time in 
 Dutch harbours, and provide themselves with an unlimited supply of 
 coal, the Government reserving to themselves the right of limiting their 
 stay to twenty-four hours, should this be deemed advisable. When 
 ships of both parties were in any harbour at the same time, one 
 was not to be allowed to depart until twenty-four hours after the 
 other (i). There is thus no uniform rule on the subject to be derived 
 from the practice of nations. Each State makes such regulations as it 
 deems most advisable. 
 
 Prizes are frequently armed and fitted out as vessels of war. After 
 Prizes fitted condemnation there is no doubt that the captors may so dispose of the 
 out as ships p r j ze . but if this is done before condemnation, although it infringes the 
 owner's rights, it does not seem a settled point what view of the matter 
 neutrals should take, as to admitting the ship into their ports. The 
 neutral may inquire into the antecedents of the ship, and if she proves 
 to be an uncondemned prize may detain her, if orders have been given 
 that prizes are not to enter the neutral's ports (K), but it is uncertain 
 whether the omission of this inquiry is a violation of neutrality, and 
 will give any ground of complaint to the other belligerent. In 1863, the 
 United States merchant-ship Conrad was captured by The Alabama. 
 The Tusca- jjer name was changed to The Tuscaloosa, and an officer and ten men, 
 with two rifled twelve- pounder guns, were put on board, but her cargo of 
 
 (d) [Circular to Governors of Colonies, 2nd June, 1864.] 
 
 (e) [London Gazette, 9th Sept. 1864. Similar rules were laid down during 
 the Franco-German War, 1870. See Phillimore, vol. iii. 168.] 
 
 (/) [Rep. Neutrality Laws Comm. 1868, p. 69.] 
 
 (g) [Ibid. p. 70.] (h) [Ibid. p. 70.] (t) [Ibid. p. 63.] 
 
 (is) [Opinion of Law Officers of the Crown. British Appendix to case at 
 Geneva, vol. ii. p. 323.] 
 
 434f. 
 
 loosa.
 
 RIGHTS OF WAR AS TO NEUTRALS. 507 
 
 wool was not unshipped. She was then taken to the Cape of Good Hope, 
 and the captain of T 'he Alabama requested that she should be admitted 
 into Simon's Bay as a tender of his vessel in other words, as a ship of 
 war. The Attorney-General of the colony gave it as his opinion that 
 she had been sufficiently set forth as a vessel of war to justify the local 
 authorities in admitting her as such, and that her real character could 
 only be determined in the courts of the captor's country. She was, 
 therefore, allowed to enter the port and obtain provisions. On the 
 26th December, 1863, The Tuscaloosa again put into Simon's Bay, and 
 was this time seized by the local authorities. This, however, was con- 
 sidered unjustifiable by the Home Government. Whatever the character 
 of the ship might have been during her first visit, she was treated as a 
 ship of war, and was, therefore, entitled to expect the same treatment 
 again, unless she received due warning that a different course would be 
 pursued. Accordingly, orders were sent out to release and deliver her 
 lip to some Confederate officer, but as a matter of fact she never was 
 delivered up to that government (I). 
 
 Vattel states that the impartiality, which a neutral nation N ^ t *^' 
 ought to observe between the belligerent parties, consists of impartial!- 
 
 1. To give no assistance where there is no previous stipu- 
 lation to give it ; nor voluntarily to furnish troops, arms, 
 ammunition, or any thing of direct use in war. " I do not 
 say to give assistance equally, but to give no assistance : for it 
 would be absurd that a State should assist at the same time 
 two enemies. And besides, it would be impossible to do it 
 with equality: the same things, the like number of troops, 
 the like quantity of arms, of munitions, &c., furnished under 
 different circumstances, are no longer equivalent succours. 
 
 2. " In whatever does not relate to the war, the neutral 
 must not refuse to one of the parties, merely because he is at 
 war with the other, what she grants to that other " (ni). 
 
 These principles were appealed to by the American govern- 436. 
 ment, when its neutrality was attempted to be violated on the ^ q 3 fng d 
 commencement of the European war, in 1793, by arming and vessels, and 
 equipping vessels, and enlisting men within the ports of the ^erf within 
 United States, by the respective belligerent powers, to cruise the . neutral 
 against each other. It was stated that if the neutral power by either 
 might not, consistently with its neutrality, furnish men to j^a^/ui 11 *' 
 either party for their aid in war, as little could either enrol 
 them in the neutral territory. The authority both of Wolfius 
 
 (I) [Parl. Papers, 1873, N. America (No. 2), pp. 201204.] 
 (HI) Droit des Gens, liv. iii. ch. 7, 104.
 
 508 RIGHTS OF WAR AS TO NEUTRALS. 
 
 and Vattel was appealed to in order to show, that the levying 
 of troops is an exclusive prerogative of sovereignty, which no 
 foreign power can lawfully exercise within the territory of 
 another State, without its express permission. The testimony 
 of these and other writers on the law and usage of nations 
 was sufficient to show, that the United States, in prohibiting 
 all the belligerent powers from equipping, arming, and man- 
 ning vessels of war in their ports, had exercised a right and 
 a duty with justice and moderation. By their treaties with 
 several of the belligerent powers, treaties forming part of the 
 law of the land, they had established a state of peace with 
 them. But without appealing to treaties, they were at peace 
 with them all by the law of nature ; for, by the natural law, 
 man is at peace with man, till some aggression is committed, 
 which by the same law authorizes one to destroy another, as 
 his enemy. For the citizens of the United States, then, to 
 commit murders and depredations on the members of other 
 nations, or to combine to do it, appeared to the American 
 government as much against the laws of the land as to mur- 
 der or rob, or combine to murder or rob, their own citizens ; 
 and as much to require punishment, if done within their 
 limits, where they had a territorial jurisdiction, or, on the 
 high seas, where they had a personal jurisdiction, that is to 
 say, one which reached their own citizens only ; this being an 
 appropriate part of each nation, on an element where each 
 has a common jurisdiction (ri). 
 
 437. The same principles were afterwards incorporated in a law 
 
 enforcedly ^ Congress passed in 1794, and revised and re-enacted in 
 
 American 1818, by which it is declared to be a misdemeanor for any 
 
 statutes^ person, within the jurisdiction of the United States, to 
 
 augment the force of any armed vessel, belonging to one 
 
 foreign power at war with another power, with whom they 
 
 are at peace ; or to prepare any military expedition against 
 
 the territories of any foreign nation with whom they are 
 
 at peace ; or to hire or enlist troops or seamen for foreign 
 
 military or naval service ; or to be concerned in fitting out 
 
 any vessel, to cruise or commit hostilities in foreign service, 
 
 against a nation at peace with them : and the vessel, in this 
 
 (ri) Mr. Jefferson's Letter to M. Genet, June 17, 1793. American State 
 Papers, vol. i. p. 155.
 
 RIGHTS OF WAR AS TO NEUTRALS. 50.9 
 
 latter case, is made subject to forfeiture. The President is 
 also authorized to employ force to compel any foreign vessel 
 to depart, which by the law of nations or treaties ought not 
 to remain within the United States, and to employ generally 
 the public force in enforcing the duties of neutrality pre- 
 scribed by the law (o). 
 
 The example of America was soon followed by Great 438. 
 Britain, in the Act of Parliament 59 Geo. III. ch. 69, entitled, 
 
 " An act to prevent the Enlisting or engagement of His Enlistment 
 Majesty's Subjects to serve in foreign Service, and the Fitting 
 out or Equipping in His Majesty's Dominions Vessels for 
 warlike purposes, without His Majesty's License." The pre- 
 vious statutes, 9 and 29 Geo. II., enacted for the purpose of 
 preventing the formation of Jacobite armies in France and 
 Spain, annexed capital punishment as for a felony, to the 
 offence of entering the service of a foreign State. The 59 
 Geo. III. ch. 69; commonly called the Foreign Enlistment 
 Act, provided a less severe punishment, and also supplied a 
 defect in the former law, by introducing after the words 
 "king, prince, state, or potentate," the words "colony or 
 district assuming the powers of a government," in order to 
 reach the case of those who entered the service of un- 
 acknowledged as well as of acknowledged States. The act 
 also provided for preventing and punishing the offence of 
 fitting out armed vessels, or supplying them with warlike 
 stores, upon which the former law had been entirely silent. 
 
 In the debates which took place in Parliament upon the 439. 
 enactment of the last-mentioned act in 1819, and on the J? eba A te + s , n 
 
 the Act oi 
 
 motion for its repeal in 1823, it was not denied by Sir J. 1819. 
 Mackintosh and other members who opposed the bill, that 
 the sovereign power of every State might interfere to prevent 
 its subjects from engaging in the wars of other States, by 
 which its own peace might be endangered, or its political and 
 commercial interests affected. It was, however, insisted that 
 the principles of neutrality only required the British legisla- 
 ture to maintain the laws in being, but could not command 
 it to change any law, and least of all to alter the existing 
 laws for the evident advantage of one of the belligerent 
 
 (<>) Kent's Comm. on American Law, vol. i. p. 123, f>tli ed.
 
 510 RIGHTS OF WAR AS TO NEUTRALS. 
 
 parties. Those who assisted insurgent States, however meri- 
 torious the cause in which they were engaged, were in a much 
 worse situation than those who assisted recognized govern- 
 ments, as they could not lawfully be reclaimed as prisoners of 
 war, and might, as engaged in what was called rebellion, be 
 treated as rebels. The proposed new law would go to alter 
 the relative risks, and operate as a law of favour to one of 
 the belligerent' parties. To this argument it was replied by 
 Mr. Canning, that when peace was concluded between Great 
 Britain and Spain in 1814, an article was introduced into the 
 treaty by which the former power stipulated not to ' furnish 
 any succours to what were then denominated the revolted 
 colonies of Spain. In process of time, as those colonies 
 became more powerful, a question arose of a very difficult 
 nature, to be decided on a due consideration of their de jure 
 relation to Spain on the one hand, and their de facto indepen- 
 dence on the other. The law of nations afforded no precise 
 rule as to the course which, under circumstances so peculiar 
 as the transition of colonies from their allegiance to the parent 
 State, ought to be pursued by foreign powers. It was difficult 
 to know how far the statute law or the common law was appli- 
 cable to colonies so situated. It became necessary, therefore, 
 in the Act of 1819, to treat the colonies as actually indepen- 
 dent of Spain ; and to prohibit mutually, and with respect to 
 both, the aid which had been hitherto prohibited with respect 
 to one only. It was in order to give full and impartial effect 
 to the provisions of the treaty with Spain, which prohibited 
 the exportation of arms and ammunition to the colonies, but 
 did not prohibit their exportation to Spain, that the Act of 
 Parliament declared that the prohibition should be mutual. 
 When, however, from the tide of events flowing from the pro- 
 ceedings of the Congress of Verona, war became probable 
 between France and Spain, it became necessary to review these 
 relations. It was obvious that if war actually broke out, the 
 British government must either extend to France the prohi- 
 bition which already existed with respect to Spain, or remove 
 from Spain the prohibition to which she was then subject, 
 provided they meant to place the two countries on an equal 
 footing. So far as the exportation of arms and ammunition 
 was concerned, it was in the power of the crown to remove
 
 RIGHTS OF WAR AS TO NEUTRALS. 511 
 
 any inequality between the belligerent parties, simply by an 
 order in council. Such an order was consequently issued, 
 and the prohibition of exporting arms and ammunition to 
 Spain was removed. By this measure the British govern- 
 ment offered a guaranty of their bond fide neutrality. The 
 mere appearance of neutrality might have been preserved by 
 the extension of the prohibition to France, instead of the 
 removal of the prohibition from Spain ; but it would have 
 been a prohibition of words only, and not at all in fact ; for 
 the immediate vicinity of the Belgic ports to France would 
 have rendered the prohibition of direct exportation to France 
 totally nugatory. The repeal of the Act of 1819 would have, 
 not the same, but a correspondent effect to that which would 
 have been produced by an order in council prohibiting the 
 exportation of arms and ammunition to France. It would be 
 a repeal in words only as respects France, but in fact respect- 
 ing Spain ; and would occasion an inequality of operation in 
 favour of Spain, inconsistent with an impartial neutrality. 
 The example of the American government was referred to, as 
 vindicating the justice and policy of preventing the subjects 
 of a neutral country from enlisting in the service of any 
 belligerent power, and of prohibiting the equipment in its 
 ports of armaments in aid of such power. Such was the 
 conduct of that government under the presidency of Wash- 
 ington, and the secretaryship of Jefferson ; and such was 
 more recently the conduct of the American legislature in 
 revising their neutrality statutes in 1818, when the congress 
 extended the provisions of the Act of 1794 to the case of 
 such unacknowledged States as the South American colonies 
 of Spain, which had not been provided for in the original 
 law (p). 
 
 The duties of neutral States as regards their supplying belligerents 439 a. 
 with ships and munitions of war have been brought into such promi- Neutrality 
 nence, and have been so thoroughly discussed in recent times, that it aws> 
 becomes necessary to enter more fully into the subject than Mr. Wheaton 
 has done. 
 
 America has the credit of being the first country that by positive America, 
 legislation sought to restrain its subjects within the strict limits of 
 
 (p) Annual Register, vol. Ixi. p. 71. Canning's Speeches, vol. iv. p. 150 ; 
 vol. v. p. 34.
 
 512 RIGHTS OF WAR AS TO NEUTRALS. 
 
 neutrality. It has been already shown (q) that, in 1793, France de- 
 manded from the United States certain exclusive privileges under the 
 treaties of 1778, with respect to her privateers and ships of war, which 
 the latter deemed inconsistent with the law of nations, and not war- 
 ranted by the terms of the treaties. America was determined to remain 
 neutral, and on the 22nd April, 1793, a Proclamation of Neutrality was 
 issued, warning American citizens carefully to avoid all acts and pro- 
 ceedings which might tend to contravene the neutral disposition of their 
 country. Any citizen who committed a breach of the law of nations 
 would not be protected by his government (r). In spite of this a French 
 agent, M. Guinet. landed at Charleston in April, commenced organizing a 
 system of privateering, and endeavoured in various ways to stir up the 
 inhabitants of the States to assist France (s). A French Prize Court was 
 established at Charleston, and an English vessel, The Grange, was seized 
 in the Delaware river. The British Minister in America, Mr. Ham- 
 mond, remonstrated against these violations of neutrality, and on the 
 5th of June received an answer from Mr. Jeiferson, admitting the justice 
 of his remonstrance, and stating that measures would be taken to pre- 
 vent such occurrences happening again (). A collection of rules, de- 
 claring the original equipping and arming of vessels in the United 
 States, by either belligerent for warlike purposes, to be unlawful, was 
 drawn up, and issued to the collectors of customs. Violations of 
 neutrality, however, continued. In October a French Vice-Consul at 
 Boston, M. Duplaine, obtained the rescue by force of a vessel detained 
 0<!i/t*v M*/uM ' )V the Marshal. The United States withdrew his exequatur, but the 
 grand jury of Philadelphia refused to find a true bill against him (u). It 
 was therefore deemed necessary to legislate on the subject, and accord- 
 ingly the Act of the 5th of June, 1794, was passed (x). This Act was 
 substantially the same as the one afterwards passed in 1818, and the 
 latter, notwithstanding all that has since happened, still remains the law 
 of America (y). The latter Act is set out in full in the Appendix. It 
 will, however, be necessary to notice some of the leading American 
 decisions on both the Acts, and on the general subject. 
 
 " 439 b A P rosecut i 011 f r being concerned in fitting out and arming a priva- 
 
 American teer > was set on f ot soon a ^ ter tne P ass i n g of the Act of 1794. Les 
 
 cases. Jumeaux was originally a British ship employed on the coast of Guinea. 
 
 U. S. T. She entered Philadelphia in 1794 with a cargo of sugar and coffee, and 
 
 Guinet (Les a t that time was owned entirely by French subjects. Originally she had 
 
 Jumeaux). j. gn p 0r t no i es on each side, but only four altogether were open when she 
 
 entered Philadelphia. While there her owners caused her to be repaired, 
 
 re-opened her twenty ports, and fitted her up as a ship of war. Orders 
 
 were given by the United States' authorities that she should be dis- 
 
 mantled of her extra armaments and reduced to the condition she was 
 
 (q) [See ante, 425.] 
 
 (r) [American State Papers, vol. i. p. 140.] 
 
 (s) [Rep. Neutrality Commission, ]868, p. 18.] 
 
 (t) [Jetterson's Works, vol. iii. p. 571.] 
 
 (u) [Rep. Neutrality Comm. 1868, p. 23.] 
 
 . . , . . 
 
 (x) [United States Statutes at Large, Third Cong. Sess. I. ch. 50.] 
 (y) [United States Revised Statutes, Tit. Neutrality. See Appendix 
 
 C.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 513 
 
 in when she first came. She thus quitted Philadelphia in her original 
 condition, but lower down the river she took on board some guns and a 
 number of men. A pilot boat also attempted to convey some more war 
 material to her, but was stopped by the local authorities. A militia 
 force was then sent in pursuit of Les Jumeaux, but she avoided detention, 
 partly by artifice and partly by threatening an armed resistance. One 
 Guinet, who had been chiefly concerned in fitting her out, was then in- 
 dicted for a breach of section 3 of the Act. The Judge ruled that the 
 third section was meant to include all cases of vessels armed in American 
 ports by one of the belligerent powers, to cruise against another belli- 
 gerent power at peace with the United States. Converting a ship from 
 her original destination with intent to commit hostilities ; or, in other 
 words, converting a merchant ship into a vessel of war, must be deemed 
 an original outfit ; for the Act would, otherwise, become nugatory and in- 
 operative. It is the conversion from the peaceable use to the warlike 
 purpose, that constitutes the offence. Guinet was found guilty (z). 
 
 The claim of France to set up Courts of Prize in the United States was 439 c. 
 discussed in The Betsy (a), a vessel captured by a French privateer and French 
 sent into Baltimore for adjudication. The Supreme Court held that no ^ ze 
 foreign power could rightfully erect any court of judicature within the America 
 United States unless by force of a treaty, and that no foreign consul The Bdsy. 
 could adjudicate upon a prize. In 1795, one Ballard, a Virginian, ob- Talbot v. 
 tained the assignment of a power to command a certain ship, given by Jctiiscn. 
 the French Admiral in the United States, and authenticated by the 
 French consul at Charleston. This ship, L'ami de la LibertS, was 
 American owned, and was armed and equipped in the United States. 
 Ballard renounced his Virginian citizenship, but was not naturalized 
 elsewhere. He took command of L'ami de la Liberte, and sailing under 
 the French flag, captured a Dutch brig The Magdalena, and brought her 
 to Charleston for adjudication. The Court held that he was still an 
 American citizen, and that the authority under which he sailed was 
 invalid. That the capture of a vessel of a country at peace with the 
 United States, made by a vessel fitted out in one of their ports, and 
 commanded by one of their citizens, was illegal, and that if the captured 
 vessel was brought within American jurisdiction, the District Courts, 
 upon a libel for tortious seizure, might inquire into the facts, and decree 
 restitution. Accordingly the ship was restored with damages (i). On the The 
 other hand, where a prize was made by a vessel which had left the 
 United States with equipments partially adapted for war, but which 
 were such as were frequently carried by merchantmen, and where her 
 full equipment had been completed in French territory, the Court de- 
 clined to restore the prize. It was held to be no violation of neutrality 
 to sell such a ship to a foreigner (c). The Court also refused to restore 
 a prize captured by a French privateer, which had been simply repaired 
 in an American port, and had not augmented her force there (//). But 
 
 (z) [U. S. v. Guinet, 2 Dallas, 328.] 
 
 (a) [1 Curtis, 74. S. C. 3 Dallas, 6.] 
 
 (6) \_Talbol, v. Jansen, The Magdalena, 1 Curtis, 128.; S. C. 3 Dallas, 133.] 
 
 (c) [Moodie v. The Alfred, 1 Curtis, 234. 8. C. 3 Dallas, 30?.] 
 
 (d) [Moodie v. The Phoebe Ann, 1 Curtis, 287. S. C. 3 Dallas, 319.]
 
 514 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 439 d. 
 
 Captures 
 made 
 without 
 violation of 
 neutrality. 
 
 439e. 
 
 What 
 amoimts 
 to a viola- 
 tion of 
 neutrality. 
 
 U. S. v. 
 
 Quincey. 
 
 where a French privateer secretly increased her crew at New Orleans by 
 taking on board several Americans, and then captured The Akrta, a 
 Spanish brig, and sent her to New Orleans as a port of necessity, the 
 Court restored the prize to her owner (e). 
 
 Whenever it was proved that a capture was made jure belli on the high 
 seas, by a duly commissioned vessel of war which had in no way violated 
 American neutrality, the Courts refused to interpose. " It is no part of 
 the duty of a neutral nation," said Chief Justice Story, " to interpose 
 upon the mere footing of the law of nations, to settle all the rights and 
 wrongs which may grow out of a capture between belligerents * * * 
 The captors are amenable to their own government exclusively for any 
 excess or irregularity in their proceedings "(/) This also was held to 
 extend to the acts of privateers done under their war powers (g). Nor 
 would the title by which a foreign sovereign owned a ship of war be 
 inquired into (/(.). But it was firmly settled that if captures were made 
 in violation of American neutrality, the property might be restored 
 (even if there had been no Foreign Enlistment Act) if brought within 
 the territory of the Union (i). Even after a regular condemnation in a 
 Prize Court of the captor's country, the Court restored the prize, because 
 she was still owned and controlled by the original wrong doer (&). 
 
 In order that a violation of neutrality should be committed, two 
 elements were deemed necessary. In the first place the ship must have 
 been wholly or in part equipped or manned, or she must have aug- 
 mented her force within the jurisdiction of the United States. In the 
 second plae she must have been so equipped or manned with the intent 
 that she should cruise against the commerce of a State at peace with the 
 United States. Unless both the fact and the intent existed together, 
 there was no offence against the law. The simple fact of an armed 
 vessel having been equipped in, and sent from the United States to a 
 belligerent did not of itself, necessarily constitute a breach of the Act, 
 or of the law of nations (I). Thus, if a ship of war was built and fitted 
 out in America, and was then bond fide sold, purely as a commercial specu- 
 lation to a belligerent, there would be no intent that she should cruise 
 against friendly commerce, and thus no breach of neutrality would be 
 committed. Ships of war and arms are articles of commerce, and neu- 
 trals are entitled to continue their ordinary commerce with belligerents, 
 subject to the risk of their goods being captured if they are contraband. 
 No State prohibits its subjects from trading in contraband. It only 
 leaves such goods to their fate, if either belligerent captures them on 
 the way to the other. In 1828, The Bolivar, a vessel of 70 tons, sailed 
 from Baltimore for St. Thomas, under the command of one Quincey, and 
 
 (e) [The Alerta <Sc Cargo v. Bias, 3 Curtis, 379.] 
 
 (/) [La Amistad de Rues, 5 Wheaton, 385.] 
 
 (g) [The Invincible, I Wheaton, 238.] 
 
 (h) [The Exchange, 7 Cranch, 116. See ante, 96, et seq.} 
 
 (i) [The Grand Para, 7 Wheaton, 471 ; 5 Curtis, 302 ; La Conception, 
 6 Wheaton, 235 ; The. Bello Cm-nines, 6 Wheaton, 152 ; The Estrella, 
 4 Wheaton, 298.] 
 
 (k) [The Arrogante Barcelones, 7 Wheaton, 496 ; The Nereyda, 8 Wheaton, 
 108]. 
 
 (I) [The Santissima Trinidad^ 7 Wheaton, 283.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 515 
 
 with Armstrong, her owner, on board. At St. Thomas, Armstrong fitted 
 her out as a privateer to cruise under the Buenos Ayres flag against 
 Brazil. Quincey continued to command her and made some prizes. He 
 then returned to America, and was prosecuted for being concerned in 
 fitting out The Bolivar. The Court held it to be not necessary in order 
 to convict Quincey, that the jury should find, that The Bolivar was 
 armed or in a condition to commit hostilities during the voyage from 
 Baltimore to St. Thomas. But if the jury believed that the owner and 
 equipper went to St. Thomas in search of funds, and without a present 
 intention of employing her as a privateer, or even if they wished so 
 to employ her, but the fulfilment of their wish depended on their being 
 able to procure funds at St. Thomas for her equipment, the defendant 
 Quincey was not guilty. " The offence," said the Court, " consists princi- 
 pally in the intention with which the preparations were made. These 
 preparations, according to the very terms of the Act, must be made 
 within the limits of the United States, and it is equally necessary that 
 the intention with respect to the employment of the vessel should be 
 formed before she leaves the United States. And this must be a fixed 
 intention, not conditional or contingent, depending on some future 
 arrangements * * * * The law does not prohibit armed vessels 
 belonging to citizens of the United States from sailing out of our ports ; 
 it only requires the owner to give seciirity that such vessels should not 
 be employed by them to commit hostilities against foreign powers at 
 peace with the United States " (m). 
 
 The American Act declares that "if any person shall, within the 439f. 
 limits of the United States, fit out and arm, or attempt to fit out and Whether 
 arm, or procure to be fitted out and armed," any vessel to cruise against " ttin "* 
 the commerce of a friendly State, he shall be guilty of a misdemeanor. ^ aeces^ 
 In 1866, The Meteor, a vessel alleged to be for the Chilian service in the sary to 
 war between Chili and Spain, was libelled in the District Court. She constitute 
 had been originally built for the Federal government, but the civil war the offence - 
 having ended, she was sold instead to Chili. She was built to carry 
 eleven or twelve guns, but these had not been mounted, and she was 
 when libelled an unarmed ship of war. The counsel for the claimant 
 contended that as she had not been fitted out and armed in the United 
 States, she must be released. But the Court declined to adopt this in- 
 terpretation of the statute, and judgment was given against the ship. 
 This decision was not reviewed by the Supreme Court, and it has since 
 been much questioned (n\ 
 
 The ninth section of the Act gives the President power to employ the 439 g. 
 land or naval forces of the Union to compel any foreign ship to depart. The Pre- 
 This has been held to be a power intended to be exercised only when, S1 
 by the ordinary process or exercise of civil authority, the purposes of the *" 
 law cannot be effected. It was not to be resorted to in cases where the 
 seizure could be made by the ordinary civil means (o). 
 
 (m) [U. S. v. Quincey, 6 Peters, 445 ; 10 Curtis, 189. Rep. Ncut. Comin. 
 p. 29.] 
 
 () [Rep. of Neutrality Comm. p. 37. And see Parl. Papers, 1873 (No. 2), 
 p. 39.] 
 
 (o) [Eoyt v. Gelston, 3 Wheaton, 246 ; S. C. 4 Curtis, 228.] 
 
 L L 2
 
 516 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 439 h. 
 
 Enlisting. 
 
 4391. 
 Observ- 
 ance of 
 American 
 neutrality. 
 Towards 
 Spain. 
 
 With respect to enlisting, it has been held to be no crime under the 
 Act to leave America with intent to enlist in foreign service, or to trans- 
 port persons out of the country with their own consent, with an inten- 
 tion of such enlistment. To constitute an offence within the Act, such 
 persons must be hired or retained in America to go abroad with an 
 intention so to enlist (p). 
 
 Such was the law of the United States up to the Treaty of Washing- 
 ton, 1871. The next point is, to trace the manner in which it has been 
 observed by American citizens. In 1806, a certain Miranda fitted out 
 an expedition in New York, and sailed against Caracas. He was met 
 by two Spanish men-of-war, and was defeated, and took refuge at 
 Grenada ; ten of his followers were condemned to death as pirates. 
 Mr. Dana says, " There seems no doubt that this (expedition j might and 
 ought to have been prevented by us " (3). In 1817, Don Luis de Onis, 
 Spanish minister to the United States, began a series of complaints re- 
 specting the fitting out of American privateers to cruise against Spanish 
 commerce. He referred to numerous instances of privateers issuing 
 from Baltimore and New Orleans, or as he describes it, " whole squad- 
 rons of pirates having been fitted out from thence, in violation of the 
 solemn treaty between the two nations, and bringing back to them the 
 fruits of their piracies, without being checked in these courses " (r). 
 On the 16th of January, he complains of a Spanish schooner being cap- 
 tured off Balize at little more than musket-shot from the land, by The 
 Jupiter, a privateer fitted out in America. On the 10th of February, he 
 refers to five more such privateers having taken Spanish prizes, and on 
 several other occasions he addressed similar remonstrances to the 
 American government (s). In their replies to these communications, 
 the United States express their readiness to make inquiries into the 
 matter, and refer the Spanish minister to the law coiirts. The corre- 
 spondence closes with the following statement by Don Luis, written on 
 the 16th of November, 1818 : "Whatever maybe the forecast, wisdom, 
 and justice conspicuous in the laws of the United States, it is univer- 
 sally notorious that a system of pillage and aggression has been 
 organised in several parts of the Union against the vessels and property 
 of the Spanish nation ; and it is equally so that all the legal suits 
 hitherto instituted by His Catholic Majesty's consuls, in the courts of 
 their respective districts, for its prevention, or the recovery of the 
 property, when brought into this country, have been and still are com- 
 pletely \\navailing " (t). This letter was accompanied by a list of thirty 
 privateers belonging to New Orleans, Charleston, Philadelphia, Balti- 
 more, and New York, with a formidable list of prizes made by them. 
 
 (p) [U. S. v. Kazinski, 2 Sprague, 7 ; 8 Law Rep. 254. See on this subject, 
 W barton's Criminal Law, pp. 905910. Opinions of Attorneys-General 
 (U. S.), vol. vii. p. 367.] 
 
 (q) [Wheaton, by Dana, p. 558. Rep. of Neutrality Comm. p. 25.] 
 
 (r) [Reasons of Sir A. Cockburn as to Geneva Award. Parl. Papers, 1873 
 (No. 2), p. 54.] 
 
 (s} [li.id. p. 55. See also, Appendix to Irtish Case at Geneva, vol. iii. 
 pp. 99 106. ] 
 
 (t) [British Appendix, vol. iii. p. 131.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 517 
 
 The proceedings in the law courts failed in most cases from the impos- 
 sibility of procuring evidence. Cruising against Spanish commerce was 
 so profitable that few people would come forward and testify to the 
 violations of the law. Nevertheless, it was enforced in the courts 
 whenever evidence could be got, and numerous prizes taken by these 
 privateers were restored to their owners (it). In the mean time Spanish 
 commerce had suffered immensely. The dispute was finally adjusted 
 by certain American claims on account of prizes made by French priva- 
 teers, and condemned by French consuls in Spain, and other matters, 
 being set off against the demands of Spain for reparation, in a treaty 
 dated 22nd February, 18 19 (a). 
 
 In 1849, Lopez, a Spanish adventurer, planned an attack on Cuba, 439 j. 
 with the object of annexing it to the United States. The President The ex- 
 issued a proclamation calling upon every officer of the government to P^'j 1 ^ 
 use every effort in his power to arrest any person concerned in this ex- 
 pedition. Nevertheless, Lopez left New Orleans on the 7th of May, 
 1850, in a steamer, accompanied by two other vessels, with about 50 J 
 men on board. He landed at Cardenas in Cuba, but was driven off by 
 the Spanish troops, and escaped back to the United States. He was 
 then arrested and brought to trial, but as the judge refused to allow 
 delay to procure evidence, he was discharged amid the cheers of a large 
 crowd ; he was again prosecuted at New Orleans, in July, 1850, and a 
 true bill was found against him, but the government failed to make out 
 their case. On the 3rd of August, 1851, he again started from New 
 Orleans, with an expedition of 400 men ; this time he was overpowered 
 by the Spaniards, and executed at Havana (y). 
 
 In 1869, Cuba again became the destination of hostile expeditions, 439k. 
 organised in the Union. Mr. Fish, the American foreign secretary, ^ther 
 admitted "with regret that an unlawful expedition did succeed in peditfons." 
 escaping from the United States, and landing on the shores of Cuba." 
 In the following year, a notorious vessel, The Hornet, was permitted to 
 leave New York for Cuba ; she was seized several times before getting 
 there by both British and American authorities, but finally managed to 
 effect her purpose of landing an expedition in the island (z). 
 
 England has on several occasions received annoyance from the for- 4391. 
 mation of hostile Irish organizations in America. The first society for ^x"^ 1 
 this purpose appeared in 1848, and was styled the " Irish Republican Regards 
 Union," but nothing definite was effected by it. This was succeeded in England. 
 1855 by another, named "The Massachusetts Irish Emigrant Aid 
 Society," whose chief function appears to have been the establishment 
 of secret societies in various parts of the States. But both the head 
 society and its secret branches remained in obscurity and insignificance 
 until 1863, when they came forth at Chicago as " The Fenian Bi other- 
 hood." At the second congress of the Brotherhood, in 1865, the Presi- 
 
 (u) [Wheaton, by Dana, p. 558. The Santa Maria, 7 Wlieaton, 490 : Tim, 
 Monte Allegre, ibid. 520 ; 17. S. v. Retjlurn, 6 Peters, 352.] 
 
 (x) [U. S. Statutes at Large, vol. viii. p. 258.] 
 
 (?/) [Parl. Papers, 1873 (No. 2), pp. 62, 63. Rep. of Neutrality Conim. 
 1868, p. 34.] 
 
 (z) [British Counter-case at Geneva, p. 46.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 dent of the society declared that they were "virtually at war" with 
 England (a) ; and, to give a greater air of reality to this announcement, 
 bonds were issued, " redeemable six months after the acknowledgment 
 of the independence of the Irish nation," the bonds being payable " on 
 presentation at the treasury of the Irish Republic." It is believed that 
 some of these bonds were taken up. About this time the Canadian 
 government called out a few companies of militia to resist the threatened 
 invasion of Canada by the Fenians, and if the language of the Brother- 
 hood deserved any attention, precautions were highly necessary. Colonel 
 Roberts, one of the ringleaders, promised " to have the green flag sup- 
 ported by the greatest army of Irishmen upon which the sun ever 
 shone " (b}. General Sweeney talked of the large amount of arms and 
 war material they had purchased, and threw out mysterious hints re- 
 specting a certain territory they were about to conquer " from which we 
 can not only emancipate Ireland, but also annihilate England" (c). These 
 and other threats were announced at public meetings, and though the 
 project was absurd on the face of it, it was nevertheless a hostile organi- 
 zation against a State at peace with the Union. Matters became more 
 serious towards the middle of the year. About 800 or 900 armed men 
 actually crossed into Canada, and drove back a small number of volun- 
 teers. They retreated before another Canadian detachment, and on 
 recrossing the frontier were arrested and disarmed by the United States 
 forces. About sixty-five were made prisoners in Canada, and placed in 
 the common gaol. The most remarkable event in connection with this 
 raid was that, on the 23rd July, the House of Representatives resolved 
 to "request the President of the United States to urge upon the 
 Canadian authorities, and also the British government, the release of 
 the Fenian prisoners recently captured in Canada," and further, that 
 the prosecutions against those taken in America should be abandoned. 
 In pursuance of this, the prosecutions were dropped in America, and 
 some of the ringleaders released after a day's detention on bonds of 
 $5,000. In October the government decided to return some of the 
 arms taken from the Fenians, and the remainder were returned the 
 following year (d). In November, 1868, the Fenian leader, O'Neill, 
 marched in review through Philadelphia with three regiments in Fenian 
 uniform, numbering, as reported, 3,000 men. In 1870 two expeditions 
 crossed into Canada, but being repulsed, fled across the frontier, and 
 were again disarmed and their leaders imprisoned by the Union troops. 
 Some of the leaders were fined and imprisoned, but were released 
 two or three months after (e). 
 
 These violations of neutrality have been referred to (and others 
 might be adduced) simply to show that America has not always pre- 
 vented the formation of schemes in her territory hostile to States with 
 whom she was at peace ; and it is this that renders the tone adopted 
 towards England by her representatives at the Geneva arbitration less 
 
 (a) [The Irish American, llth Feb. 1865.] 
 
 (b) [New York World, 27th Jan. 1866.] 
 
 (c) [New York World, 20th Feb. 1866.] 
 
 (d) [British Counter-case, p. 43.] 
 
 (e) [Parl. Papers, N. America, 1873 (No. 2), p. 66.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 519 
 
 justifiable. In the truly touching language of Mr. Fish, " Laws will 
 be broken at times ; and happy is that form of government that can 
 control the tendency of evil minds, and restrain, by its peaceful agencies, 
 the violence of evil passions" (/). But it ill becomes a nation, whose laws 
 have been frequently and flagrantly broken, to cast unworthy reproaches 
 upon another State whose laws have also been violated, but in a much 
 less degree, and whose good faith in endeavouring to preserve its 
 neutrality was above suspicion. 
 
 The history of the law of England on the subject must next be con- $ 439m. 
 sidered. In 1721, on the occasion of a complaint being made by the neutrality 
 Swedish minister that certain ships of war had been built in England laws, 
 and sold to the Czar, the Judges were ordered to attend the House of 
 Lords and deliver their opinions on the question, whether the King of 
 England had power to prohibit the building of ships of war, or of great 
 force, for foreigners, and they answered that the king had no power to 
 prohibit the same (g). The origin of the Foreign Enlistment Acts is 
 given in the text (h). Up to the American civil war, the Act of 1819 
 had been occasionally invoked to prevent the enlistment and despatch 
 of soldiers from the country as well as the equipment of ships, but the 
 cases when it was put into force at all are very few (r). 
 
 In 1827, four vessels, under Count Saldanha, sailed from Plymouth, 439n. 
 ostensibly for Brazil, but in reality to operate against Don Miguel in ce ^ a ^.^ r 
 Terceira. H.M.S. Walpole and some gunboats were sent in pursuit, 
 and intercepted them off Port Praya. Count Saldanha remonstrated 
 against being interfered with, but the Captain of The JFalpole courteously, 
 though firmly, insisted upon conducting the expedition away, leaving 
 it to the Count to go where he pleased so long as he did not stop at 
 Terceira. Another expedition that had sailed from London was after- 
 wards stopped by The Walpole (K). In 1835, the Foreign Enlistment 
 Act was suspended, and British subjects were allowed to enlist in a 
 Spanish Legion, under Sir De Lacy Evans, for the purpose of assist- 
 ing the Queen of Spain. But this was done in pursuance of the 
 Quadruple Alliance treaty, by which England agreed to assist the Queen 
 of Spain (I). In 1846, three vessels preparing in British ports to sail 
 against Equador, were seized and condemned. In 1867, a vessel alleged 
 to be fitting out for the Portuguese rebels was seized, but released. 
 
 A different class of cases arose with the American civil war, and 439o. 
 these are the only ones of any material importance, at the present time. J f l0 g^|.^ 
 In these the ground of complaint was the fitting out of armed vessels neutrality 
 for the Confederates in British ports. The depredations on American during 
 
 American 
 
 (/) [Mr. Fish to Mr. Robarts, 13th Oct. 1869. Papers relating to Cuban civil war ' 
 Affairs, p. 138.] 
 
 (r/) [Fortescue's Reports, p. 388. Parl. Papers, N. America, No. 4(1872), 
 p. 146.] 
 
 (h) [See ante, 438]. 
 
 (i) [They are collected in a memorandum, by Lord Tenterden, to the 
 Neutrality Laws Commission Report, 1863, pp. 38, 39, the substance of which 
 is given above.] 
 
 (k) [See Phillimore, iii. 166.] 
 
 (I) [See?ife, 76.]
 
 520 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 Causes of 
 complaint. 
 
 439p. 
 Rules of 
 the Treaty 
 of Wash- 
 ington. 
 
 commerce caused by Confederate cruisers, some of which had been 
 fitted out in violation of British neutrality, caused great irritation in 
 the Union. A very prolonged discussion was entered into, with the 
 view of making England pay for the damage done by those vessels, and 
 the matter was finally referred to arbitration by the Treaty of Washing- 
 ton, 1871 (ra). The causes of complaint put forward by the United 
 States government are thus summarised by Lord Chief Justice 
 Cockburn () : 
 
 " 1. That by reason of want of due diligence on the part of the 
 British government vessels were allowed to be fitted out and equipped, 
 in ports of the United Kingdom, in order to their being employed 
 in making war against the United States, and having been so equipped, 
 were allowed to quit such ports for that purpose. 
 
 " 2. That vessels, fitted out and equipped for the before-mentioned pur- 
 pose, in contravention of the Foreign Enlistment Act, and being there- 
 fore liable to seizure under the Act, having gone forth from British 
 ports, but having afterwards returned to them, were not seized as they 
 ought to have been, but having been allowed hospitality in such ports, 
 were suffered to go forth again to resume their warfare against the com- 
 merce of the United States. 
 
 " 3. That undue favour was shown in British ports to ships of war 
 of the Confederate States, in respect of the time these ships were per- 
 mitted to remain in such ports, or of the amount of coal with which 
 they were permitted to be supplied. 
 
 " 4. That vessels of the Confederate States were allowed to make 
 British ports the base of naval operations against the ships and com- 
 merce of the United States." 
 
 In order to assist the arbitrators in coming to a decision, three general 
 rules were introduced into the treaty, and with these rules before them, 
 the arbitrators were directed to determine as to each vessel " whether 
 Great Britain has, by any act or omission, failed to fulfil any of the 
 duties set forth in such rules, or recognised by the principles of inter- 
 national law not inconsistent with such rules." The rules were as 
 follows : 
 
 " A neutral government is bound 
 
 " 1st. 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. 
 
 " 2nd. Not to permit or suffer either belligerent to make use of its 
 ports or waters as the base of naval operations against the other, or for 
 the purpose of the renewal or augmentation of military supplies or arms, 
 or the recruitment of men. 
 
 " 3rd. To exercise due diligence in its own ports and waters, and, as 
 
 (m) [See Appendix E., p. 688.] 
 
 {) [Paii. Papers, 1873, N. America (No. 2), p. 7.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 521 
 
 to all persons within its jurisdiction, to prevent any violation of the 
 foregoing obligations and duties " (o). 
 
 These rules are the weak puint in the whole matter. It is stated in ,, 9q. 
 the treaty " that Her Majesty's government cannot assent to the fore- as re g lrt i s 
 going rules as a statement of the principles of international law which interua- 
 Avere in force at the time when the claims mentioned in Article I. arose, ti na l l aw - 
 but that Her Majesty's government, in order to evince its desire of 
 strengthening the friendly relations between the two countries, and of 
 making satisfactory provision for the future, agrees that, in deciding the 
 questions between the two countries arising out of those claims, the 
 arbitrators should assume that Her Majesty's government had under- 
 token to act upon the principles set forth in these rules. And the High 
 Contracting Parties agree to observe these rules as between themselves 
 in future, and to bring them to the knowledge of other maritime 
 Powers, and to invite them to accede to them." 
 
 What does this amount to ? Simply that England agreed that her 
 liabilities should be judged of by rules which she admits were not in 
 force at the time the acts she is charged with were done. It is useless 
 to rake up a past quarrel, but it is much to be regretted that the noble 
 spectacle of two great nations referring their disputes to a peaceful tri- 
 bunal, should be marred by the tribunal being bound to act in a manner 
 contrary to all the known principles of justice. To consent to be judged 
 by ex post facto rules is a sacrifice which few care to make, and which 
 when made is not likely to call forth imitation. Another fault of the 
 treaty lay in its containing no definition of " due diligence," and thus 
 the arbitrators were thrown upon general principles to ascribe a meaning 
 to the term. 
 
 The chief cases heard by the arbitrators were as follows : 
 
 The Alabama, known at first as No. 290, was built at Liverpool, and g 439 r 
 was launched on the 15th May, 1862. She was beyond doubt intended The 
 as a vessel of war. On the 23rd June, Mr. Adams, American minister Alabama. 
 in England, wrote to Lord Russell that she was about to depart, and 
 enter the service of the Confederates. On the 30th of June, the Law 
 Officers of the Crown advised, " that if sufficient evidence can be ob- 
 tained to justify proceedings under the Foreign Enlistment Act, such 
 proceedings should be taken as early as possible." Up to the luth of 
 July, the Commissioners of Customs were of opinion that there was not 
 sufficient evidence produced to justify the seizure of the vessel. On the 
 other hand, Mr. (now Sir Robert) Collier advised on the 16th, that the 
 vessel should be seized, and on the 23rd he gave another opinion to the 
 same effect. Further evidence was then produced, and the opinion of 
 the law officers was again asked, but owing to the illness of the Queen's 
 Advocate, to whom the evidence was first sent, their opinion advising 
 the detention of the vessel, was not made known till the 31st July, and 
 on the 29th The Alabama sailed unarmed from Liverpool. On the fol- 
 lowing day, a tug left Liverpool with thirty or forty men on board, and 
 these she transferred to The Alabama off Moelfra Bay. Two British 
 vessels, The Bahama and The Agrippina, afterwards cleared from Liver- 
 pool and London with the armaments for The, Alabama, and they joined 
 (o) [Treaty of Washington, 1871, art. vi. See Appendix E.]
 
 522 RIGHTS OF WAR AS TO NEUTRALS. 
 
 her at the Azores, where she was fully equipped as a vessel of war. It 
 must be added that the British authorities had no knowledge at the 
 time of the connection between these vessels and The Alabama (p). 
 
 Upon these facts the arbitrators unanimously decided that Great Britain 
 "failed to use due diligence," and that " after the escape of the vessel, 
 the measures taken for its pursuit and arrest were so imperfect as to lead 
 to no result, and therefore cannot be considered siifficient to release Grest 
 Britain from the responsibility already incurred." And a further ground 
 for the decision was, that the ship " was on several occasions freely ad- 
 mitted into the ports of colonies of Great Britain, instead of being pro- 
 ceeded against as it ought to have been " (q). 
 
 439s. The facts relating to The Florida are not very dissimilar. She was 
 The built at Liverpool as a ship of war under the name of The Oreto, and 
 
 Florida. gne } e ft Liverpool unarmed. The authorities thought she was built for 
 the Italian government, and she cleared for Palermo and Jamaica in 
 ballast. Kepresentations as to her real destination were made to the 
 government by the American consul at Liverpool, and by Mr. Adams, 
 but as these were unaccompanied by what was deemed sufficient evi- 
 dence for her seizure, she was allowed to go free. Even her crew were 
 not aware of her real destination, and on her arrival at Nassau, most of 
 them insisted on being discharged. After considerable discussion, she 
 was seized at the Bahamas, and proceedings were taken in the Vice- 
 Admiralty Court for her condemnation. She was however discharged, 
 the judge being of opinion that, although she had been fitted out in 
 British territory, yet, as she had shipped no munitions of war in the 
 colony, and as there was no evidence that she had been transferred to a 
 belligerent, he could not condemn her. In this he was mistaken. Fitted 
 out, equipped, or armed, within British dominions, in contravention of 
 the statute, a vessel becomes at once forfeited by the effect of the statute, 
 and becomes liable to be condemned by proceedings in rem, taken before 
 any competent court within whose jurisdiction she may be (r). The 
 Florida (or Oreto) ought therefore to have been condemned at the 
 Bahamas. On being released, she proceeded to Green Cay, a desert 
 island sixty miles south of Nassau. In the meantime, her armaments 
 had been made at Liverpool, but they were conveyed by train to Hartle- 
 pool, whence they were shipped, and at the time it was unknown in 
 England that these armaments were intended for The Florida. It was 
 thought they were simply contraband of war ; however, they were 
 shipped on board The Prince Alfred at Hartlepool, and transferred to 
 The Florida at Green Cay. At Nassau she had enlisted some men for 
 her crew, but not having a full complement, she went to Cardenas, in 
 Cuba, and endeavoured to enlist others there. This was prevented by 
 the authorities, and she then sailed for the port of Mobile, which she 
 contrived to enter by eluding the blockading cruisers. She remained at 
 Mobile upwards of four months, and then issued as a Confederate ship 
 of war ; she was afterwards admitted into several British ports, and 
 
 (p) [See Argument of the United States. Parl. Papers, N. America, 1872 
 (No. 12), pp. 5970, from which all the facts but the last have been taken.] 
 (?) [Parl. Papers, N. America, 1873 (No 2), p.- 3.] 
 (r) [Parl. Papers, N. America, 1873 (No. 2), p. 140.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 523 
 
 treated as a belligerent cruiser. With regard to this vessel, the tribunal 
 by a majority of four to one, decided that England had failed in h< r 
 duties in not preventing the ship leaving Liverpool, in allowing her to 
 enlist men at Nassau, and to be armed at Green Cay, and in afterwards 
 receiving her in British ports (s). 
 
 These two vessels, The Alabama and The Florida, were the only two 439t. 
 vessels of w r ar built in Great Britain for, and actually employed in, the Summary 
 service of the Confederates during the whole civil war. Four others fi^gj 1 ^ 
 were intended to be built and equipped, but were arrested while in the i n England, 
 course of construction. Four merchant vessels, though not adapted for 
 warlike purposes, were converted into vessels of war by having guns 
 put on board, but out of the jurisdiction of the British government two 
 of them in Confederate ports and this by reason of the impossibility of 
 getting ships of war built owing to the active vigilance of the authori- 
 ties (t). It is impossible from want of space to go into the details 
 relating to the other ships ; it was only as regards these two, The Ala- 
 bama and The Florida, and their tenders, and partially as regards The 
 Shenandoah, that the tribunal condemned England to pay the United 
 States a sum of $15,500,000 in gold, as indemnity for the ravages com- 
 mitted on American commerce. Numerous other claims were put in 
 by the United States, such as damages for the cost of pursuing the 
 Southern cruisers, for the prospective earnings of the ships destroyed, 
 and for the double loss incurred by the owners of the ships and also by 
 their insurers, but these were rejected by the tribunal. 
 
 What are known as the indirect claims were dismissed by the arbitra- 439 a. 
 tors at the outset of the proceedings. They were for ; (1) The enhanced Indirect 
 rates of insurance in the United States, occasioned by the cruisers in tl ail ^ s ? t i 
 question. (2) The transfer of the maritime commerce of the United gt a t e s. 
 States to England. This was a very sore point, but on no possible 
 ground could England have been called upon to pay damages under such 
 a head. (3) The prolongation of the civil war (u). 
 
 In 1868 a Eoyal Commission was appointed to inquire into the work- 439 v. 
 ing of the Foreign Enlistment Act of 1819. This commission suggested R oyal Corn- 
 several alterations in the law. They added in their report, " In making ^gg 10 ^ * 
 the foregoing recommendations we have not felt ourselves bound to con- neutrality 
 sider whether we were exceeding what could actually be required by laws, 
 international law, but we are of opinion that if those recommendations 
 should be adopted, the municipal law of this realm available for the 
 enforcement of neutrality, will derive increased efficiency, and will, so 
 far as we can see, have been brought into full conformity with your 
 Majesty's international obligations " (x). 'In accordance with this report 
 a new Foreign Enlistment Act was passed in 1870 (i/). 
 
 Very material changes were thus introduced, and the hands of the 439 w. 
 executive greatly strengthened. It is now an offence to build or caiise Foreign 
 to be built, or to equip or despatch, or to cause or allow to be despatched, ~" n : 1! 
 
 (s) [Parl. Papers, N. America, 1873 (No. 2), p. 3.] ' (t) [Ibid. p. 106.] 
 (u) [Argument of the United States. Parl. Papers, N. America (No. 12;, 
 1872, p. 165.] 
 
 (x) [Report of Neutrality Laws Commission, 1S68, p. 7.] 
 (y) [83 & 34 Viet. c. 90. See Appendix C., p. 662. j
 
 524 RIGHTS OF WAR AS TO NEUTRALS. 
 
 any ship, with intent or knowledge, or having reasonable cause to be- 
 lieve that the same will be employed in the service of any foreign 
 State at war with any friendly State (2). Thus, all question as to intent 
 is now done away with. If the Secretary of State, or the chief execu- 
 tive authority in any place, is satisfied that there is reasonable and 
 probable cause for believing a ship in Her Majesty's dominions is being 
 built or equipped contrary to the Act, and is about to be taken beyond 
 such dominions, they may seize and search the ship, and detain it until 
 condemned or released by a court of law. The owner may apply to the 
 Court of Admiralty for its release, but it is then incumbent on him to 
 prove that the Act has not been contravened a reversal of ordinary 
 procedure which assumes a man innocent until he has been proved 
 guilty (a). These are certainly great changes, but whether they are as 
 great improvements is not so certain. The Act goes far beyond what 
 international law requires. It creates a new crime that of building 
 and makes British subjects liable to penalties for acts which are lawful 
 by the law of nations, and by all other municipal laws. It places the 
 shipbuilding trade of this country at a disadvantage, as compared with 
 that of the rest of the world (6). 
 
 ^ 439 x. The Act has been put in force several times since it was passed. During 
 
 under the ^ e Franco-German war > a French vessel of war captured a Prussian ship 
 
 Act, The i n the English Channel, and manned her with a prize crew. The prize 
 
 Gauntlet, was driven into the Downs by stress of weather, and while there, the 
 
 French consul at Dover engaged a steam-tug to tow the prize to Dunkirk 
 
 Roads. The tug did so, and on her return was proceeded against for a 
 
 violation of the Act. The Privy Council (reversing the decision of the 
 
 Admiralty Court) held, that towing the prize into French waters was 
 
 despatching a ship within the meaning of section 8, and accordingly con- 
 
 The Inter- demned the tug to the Crown (c). In another case during the same war, 
 
 national. an English company contracted with the French government to lay down 
 
 some telegraph lines on the French coast. They were to complete the 
 
 communication between Dunkirk and Verdun. The company shipped 
 
 the wires on to a specially constructed vessel, but when she was about to 
 
 start the Secretary of State seized her. The ship was, however, released 
 
 by the Admiralty Court, it being proved that the undertaking was of a 
 
 purely commercial character, and that though France might partially 
 
 use the lines for military purposes, this would not divest the transaction 
 
 voder* ' ^ its P rimarv commercial character (d). It is an offence against the Act 
 
 to supply a vessel to insurgents. Thus, a British vessel employed as a 
 
 transport or store-ship in the service of the Cuban insurgents, who though 
 
 not recognized as belligerents, had formed themselves into a body of 
 
 people acting together, and undertaking and conducting hostilities, was 
 
 condemned by the Privy Council, under the Act of 1819 (e). 
 
 439y. There can be no doubt that the Act of 1870 is in excess of what 
 
 Enforcing 
 
 municipal (") [Section 8.] 
 
 (a) Section 23.] 
 
 (b) Eeport of Neutrality Laws Comm. pp. 9 and 10.] 
 
 (c) The Gauntlet, L. R. 4 P. C. 184.] 
 
 (d) The International, L. R. 3 A. & E. 321.] 
 
 (e) The Salvador, L R. 3 P. C. 218. And see Burton v. Pinkerton, 
 L. R. Ex. 340.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 525 
 
 international law requires as the duty of a neutral. Thus the question law when 
 arises whether a belligerent can claim, as of right, the putting in force ln excess 
 of such a municipal law in his behalf, and make the omission to do so t j ona j j avv " 
 a ground of grievance. Lord Chief Justice Cock burn answers this as 
 follows : ' When a government makes its municipal law more stringent 
 than the obligations of international law would require, it does so, not 
 for the benefit of foreign States, but for its own protection, lest the acts 
 of its subjects in overstepping the confines, oftentimes doubtful, of 
 strict right, in transactions of which a few circumstances, more or less, 
 may alter the character, should compromise its relations with other 
 
 nations Now it is quite clear that the obligations of the neutral 
 
 State spring out of, and are determined by, the principles and rules of 
 international law, independently of the municipal law of the neutral. 
 They would exist exactly the same, though the neutral State had no 
 municipal law to enable it to enforce the duties of neutrality on its 
 subjects. It would obviously afford no answer on the part of a neutral 
 government to a complaint of a belligerent of an infraction of neutrality 
 that its municipal law was insufficient to enable it to insure the obser- 
 vance of neutrality by its subjects ; the reason being that international 
 law, not the municipal law of the particular country, gives the only 
 measure of international rights and obligations. While, therefore, on 
 the one hand, the municipal law, if not co-extensive with the inter- 
 national law, will afford no excuse to the neutral, so neither on the other, 
 if in excess of what international obligations exact, will it afford any 
 right to the belligerent whicli international law would fail to give 
 him " (/). Both belligerents must of course be treated equally in this 
 respect. Partiality towards one will give the other a ground of 
 complaint. 
 
 The question arises, has there been any change effected in the general 439 z. 
 principles of international law respecting the duties of neutrals ? Sale of 
 England and America by agreeing to act in future on the three rules of S *"P S f 
 the Treaty of Washington, have added to their duties as neutrals. But neutrals 
 owing to a difference of opinion between these two countries as to the to belli- 
 interpretation of these rules, foreign States have not been invited to gerents. 
 accede to them (9). Therefore, as regards other States, the general 
 principles of international law remain the same. A neutral govern- 
 ment is bound not to assist a belligerent in any way. On the other 
 hand, the subjects of the neutral are entitled to continue their ordinary 
 trade, and when that trade consists in exporting arms, or ships of war, 
 there arises a conflict between the rights of a belligerent and the rights 
 of neutral subjects. A government may not in any case sell munitions 
 of war to a belligerent, but its subjects may, provided they sell in- 
 differently to both parties in the war, and provided the transaction is a 
 purely commercial one, and not done with the intent of assisting in the 
 war, ammo adjuvadi, but simply for purposes of gain. The right which 
 
 (f) [Reasons for dissenting from Geneva Award. Parl. Papers, N. America 
 187:J (No. 2), p. 29.] 
 
 (g) [Papers presented to Parliaint-nt, I7tli July, 1874 (No. 1012). Hansard, 
 Tol. ccxviii. p. 1839.]
 
 526 RIGHTS OF WAR AS TO NEUTRALS. 
 
 war gives to a belligerent is that of seizing such goods as contraband, 
 when on their way from the neutral State to his adversary. This is 
 undoubtedly an encroachment on the neutral's right of trade in 
 favour of belligerents, but it is firmly settled, and could hardly be 
 avoided in the nature of things. Now ships intended for war, whether 
 armed or not, are clearly contraband, and the difficulty of distinguishing 
 between the bond fid,e sale of a ship of war, and the organizing of a 
 hostile expedition in her territory, has induced England to prohibit 
 altogether the sale of such ships by her subjects to belligerents. But 
 this is not prohibited by international law when done bond fide. " There 
 is nothing in our laws," said Mr. Justice Story, in 1822, " 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 person engaged in it to the penalty of confiscation" (h). 
 Thus England has bound herself to observe a rule not required by 
 international law, and as she is still the greatest shipbuilding country 
 in the world, this is a sacrifice of her rights in favour of States at war, 
 which ought to remove all doubts as to her sincerity in wishing to 
 fulfil her neutral obligations. 
 
 J^ *. a ' It is impossible to lay down any hard and fast line separating corn- 
 between mercial transactions in munitions of war, and the organising of hostile- 
 commercial expeditions. International law is necessarily incapable of being defined 
 and hostile an( i i a j<j d own with the precision attainable by municipal law. The 
 ns< question is one of intent, and it is the duty of a neutral government to 
 exercise dxie diligence in ascertaining what the real character of the 
 transaction may be. The elements of a hostile expedition are thus 
 described by Professor Bernard. " If at the time of its departure there 
 be the means of doing any act of war, if those means, or any of them, ' 
 have been procured and put together in the neutral port, and if there 
 be the intention to use them (which may always be taken for granted 
 when they are in the hands of the belligerents), the neutral port may 
 be justly said to serve as a base or point of departure for a hostile 
 expedition " (i). 
 
 439bb. A government is not responsible for every possible hostile act that 
 Due dili- m ay take place in its territory. So long as it takes all reasonable pre- 
 cautions to prevent hostile acts, and exercises due diligence in enforcing 
 these precautions, a belligerent has no just ground of complaint, even if 
 its neutrality is violated. The difficulty is to ascertain what constitutes 
 " due diligence." " The maximum of precaution," says M. Teteifs, 
 " in this case, is to maintain and enforce the observance of neutrality in 
 vessels and cargoes, with the same diligence and exactness as are exer- 
 cised in inquiries and other proceedings relative to taxes, or imposts and 
 customs. He who does as much to prevent a wrong meditated against 
 another, as he does for his own protection, satisfies every just and 
 reasonable expectation on the part of that other" (&). It is advisable 
 
 (h) [The Santissitna Trinidad, 7 Wheaton, 340.] 
 (i) [Montague Bernard, Neutrality of Great Britain, p. 399.] 
 (ic) [See Reddie's Researches in Maritime and International Law, vol. ii. 
 p. 203.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 527 
 
 during war for a neutral to make special regulations for his subjects, but 
 this cannot be demanded by a belligerent as a matter of right. All he 
 can demand is, that the neutral, by whatever means he thinks proper, 
 should, bond fide, do his best to prevent violations of his neutrality. 
 
 The unlawfulness of belligerent captures, made within the 44 9; 
 territorial jurisdiction of a neutral State, is incontestably O f the 
 established on principle, usage, and authority. Does this neu * ral 
 
 territory, 
 
 immunity of the neutral territory from the exercise of acts of how far it 
 hostility within its limits, extend to the vessels of the nation neutraf t0 
 on the high seas, and without the jurisdiction of any other vessels on 
 
 a, , o the hi g h 
 
 State ? seas . 
 
 We have already seen, that both the public and private 
 vessels of every independent nation on the high seas, and 
 without the territorial limits of any other State, are subject 
 to the municipal jurisdiction of the State to which they be- 
 long (I). This jurisdiction is exclusive, only so far as respects 
 offences against the municipal laws of the State to which 
 the vessel belongs. It excludes the exercise of the jurisdic- 
 tion of every other State under its municipal laws, but it 
 does not exclude the exercise of the jurisdiction of other 
 nations, as to crimes under international law ; such as 
 piracy, and other offences, which all nations have an equal 
 right to judge and to punish. Does it, then, exclude 
 the exercise of the belligerent right of capturing enemy's 
 property ? 
 
 This right of capture is confessedly such a right as may 
 be exercised within the territory of the belligerent State, 
 within the enemy's territory, or in a place belonging to no 
 one ; in short, in any place except the territory of a neutral 
 State. Is the vessel of a neutral nation on the high seas such 
 a place ? 
 
 A distinction has been here taken between the public and 441. 
 the private vessels of a nation. In respect to its public vessels, Distinction 
 it is universally admitted, that neither the right of visitation pu 
 and search, of capture, nor any other belligerent right, can be 
 exercised on board such a vessel on the high seas. A public 
 vessel, belonging to an independent sovereign, is exempt from 
 every species of visitation and search, even within the terri- 
 
 (l) Vide ante, Pt. II. ch. 2, 106, 107.
 
 528 RIGHTS OF WAR AS TO NEUTRALS. 
 
 torial jurisdiction of another State ; a fortiori, must it be 
 exempt from the exercise of belligerent rights on the ocean, 
 which belongs exclusively to no one nation (m). 
 
 In respect to private vessels, it has been said the case is 
 difierent. They form no part of the neutral territory, and, 
 when within the territory of another State, are not exempt 
 from the local jurisdiction. That portion of the ocean which 
 is temporarily occupied by them forms no part of the neutral 
 territory ; nor does the vessel itself, which is a moveable thing, 
 the property of private individuals, form any part of the terri- 
 tory of that power to whose subjects it belongs. The juris- 
 diction which that power may lawfully exercise over the vessel 
 on the high seas, is a jurisdiction over the persons and pro- 
 perty of its citizens ; it is not a territorial jurisdiction. Being 
 upon the ocean, it is a place where no particular nation has 
 jurisdiction ; and where, consequently, all nations may equally 
 exercise their international rights (n). 
 
 442. "Whatever may be the true original abstract principle of 
 
 nations natural law on this subject, it is undeniable that the constant 
 subjecting usage and practice of belligerent nations, from the earliest 
 goodsfin times, have subjected enemy's goods in neutral vessels to 
 neutral capture and condemnation, as prize of war. This constant 
 
 vessels to 
 
 capture. and universal usage has only been interrupted by treaty stipu- 
 
 lations, forming a temporary conventional law between the 
 
 parties to such stipulations (o). 
 
 443. The regulations and practice of certain maritime nations, 
 vessels 1 a ^ different periods, have not only considered the goods of an 
 laden with enemy, laden in the ships of a friend, liable to capture, but 
 goods' 7 sub- nave doomed to confiscation the neutral vessel on board of 
 ject to con- w hich these goods were laden. This practice has been sought 
 thTordT- y to be justified, upon a supposed analogy with that provision 
 nances of o f fo e Roman law, which involved the vehicle of prohibited 
 
 States. 
 
 (m) Vide ante, Pt II. ch. 2, 105-107. " 
 
 (?i) Rutherforth's Inst. vol. ii. b. ii. ch. 9, 19. Azuni, Diritto Maritime, 
 Pt. II. ch. 3, art. 2. Letter of American Envoys at Paris to M. de Talleyrand, 
 
 January, 1798. Waite's American State Papers, vol. iv. p. 34. 
 
 (o) Consolato del Mare, cap. 273. Wheaton's Hist. Law o atons, pp. 
 65, 115-119, 200-206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. 
 
 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, 6, 26 ; cap. 1, 5, Note 6. 
 Bynkershoek, Quajst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, 
 liv. iii. ch. 7. 115. Heineccius, de Nav. ob vect. cap. 2, 9. Loccenius, 
 de Jure. Marit, lib. ii. cap. 4, 12. Azuni, Diritto Marit. Pt. II. ch. 3, 
 art. 1, 2.
 
 RIGHTS OF WAR AS TO NEUTRALS, 529 
 
 commodities in the confiscation pronounced against the pro- 
 hibited goods themselves (j>). 
 
 Thus, by the marine ordinance of Louis XIV., of 1681, all 
 vessels laden with enemy's goods are declared lawful prize of 
 war. The contrary rule had been adopted by the preceding 
 prize ordinances of France, and was again revived by the 
 reglement of 1744, by which it was declared, that "in case 
 there should be found on board of neutral vessels, of whatever 
 nation, goods or effects belonging to his Majesty's enemies, 
 the goods or effects shall be good prize, and the vessel shall 
 be restored." Valin, in his commentary upon the ordinance, 
 admits that the more rigid rule, which continued to prevail in 
 the French prize tribunals from 1681 to 1744, was peculiar 
 to the jurisprudence of France and Spain ; but that the usage 
 of other nations was only to confiscate the goods of the 
 enemy (q). 
 
 Although by the' general usage of nations, independently 444. 
 of treaty stipulations, the goods of an enemy, found on board f r i en d on 
 
 the ships of a friend, are liable to capture and condemnation, board * he 
 i -i ships of an 
 
 yet the converse rule, which subjects to confiscation the goods enemy, 
 
 of a friend, on board the vessels of an enemy, is manifestly 
 contrary to reason and justice. It may, indeed, afford, as by the 
 Grotius has stated, a presumption that the goods are enemy's ^f 'some & 
 property ; but it is such a presumption as will readily yield nations. 
 to contrary proof, and not of that class of presumptions which 
 the civilians call presumptiones juris et de jure, and which are 
 conclusive upon the party. 
 
 But however unreasonable and unjust this maxim may be, 
 it has been incorporated into the prize codes of certain nations, 
 and enforced by them at different periods. Thus, by the 
 French ordinances of 1538, 1543, and 1584, the goods of a 
 friend, laden on board the ships of an enemy, are declared 
 good and lawful prize. The contrary was provided by the 
 subsequent declaration of 1650 ; but by the marine ordinance 
 of Louis XIV., of 1681, the former rule was again established. 
 Valin and Pothier are able to find no better argument in sup- 
 port of this rule, than that those who lade their goods on 
 
 (p) Barbeyrac, Note to Grotius, lib. iii. cap. 6, 6, Note 1. 
 (7) Valin, Comm. liv. iii. tit. 9. Des. Prises, art. 7. Wheaton's Hist. Law 
 of Nations, pp. 111114.
 
 >U RIGHTS OF WAR AS TO NEUTRALS. 
 
 board an enemy's vessels thereby favour the commerce of the 
 enemy, and by this act are considered in law as submitting 
 themselves to abide the fate of the vessel ; and Valin asks, 
 " How can it be that the goods of friends and allies, found in 
 an enemy's ship, should not be liable to confiscation, whilst 
 even those of subjects are liable to it ? " To which Pothier 
 himself furnishes the proper answer : that, in respect to 
 goods, the property of the king's subjects, in lading them 
 on board an enemy's vessels they contravene the law which 
 interdicts to them all commercial intercourse with the enemy, 
 and deserve to lose their goods for this violation of the 
 law (h). 
 
 The fallacy of the argument by which this rule is attempted 
 to be supported, consists in assuming, what requires to be 
 proved, that, by the act of lading his goods on board an 
 enemy's vessel, the neutral submits himself to abide the fate 
 of the vessel ; for it cannot be pretended that the goods are 
 subjected to capture and confiscation ex re, since their cha- 
 racter of neutral property exempts them from this liability. 
 Nor can it be shown that they are thus liable ex delicto, un- 
 less it be first proved that the act of lading them on board is 
 an offence against the law of nations. It is therefore with 
 reason that Bynkershoek concludes that this rule, where 
 merely established by the prize ordinances of a belligerent 
 power, cannot be defended on sound principles. Where, in- 
 deed, it is made by special compact the equivalent for the 
 converse maxim, that free ships make free goods, this relaxa- 
 tion of belligerent pretensions may be fairly coupled with a 
 correspondent concession by the neutral, that enemy shijys 
 should make enemy goods. These two maxims have been, in 
 fact, commonly thus coupled in the various treaties on this 
 subject, with a view to simplify the judicial inquiries into the 
 proprietary interest of the ship and cargo, by resolving them 
 into the mere question of the national character of the ship. 
 445. The two maxima are not, however, inseparable. The primi- 
 Lxinw of ^ ve * aw > independently of international compact, rests on the 
 free ships simple principle, that war gives a right to capture the goods 
 f an enemy, but gives no right to capture the goods of a 
 
 (h) Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Pothier, Traite de 
 Propriete, No. 96.
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 friend. The right to capture an enemy's property has no 
 limit but of the place where the goods are found, which, if 
 neutral, will protect them from capture. We have already 
 seen that a neutral vessel on the high seas is not such a place. 
 The exemption of neutral property from capture has no other 
 exceptions than those arising from the carrying of contraband, 
 breach of blockade, and other analogous cases, where the con- 
 duct of the neutral gives to the belligerent a right to treat his 
 property as enemy's property. The neutral flag constitutes 
 no protection to an enemy's property, and the belligerent flag 
 communicates no hostile character to neutral property. States 
 have changed this simple and natural principle of the law of 
 nations, by mutual compact, in whole or in part, according as 
 they believed it to be for their interest ; but the one maxim, 
 that free skips make free goods, does not necessarily imply the 
 converse proposition, that enemy skips make enemy goods. 
 The stipulation, that neutral bottoms shall make neutral 
 goods, is a concession made by the belligerent to the neutral, 
 and gives to the neutral flag a capacity not given to it by the 
 primitive law of nations. On the other hand, the stipulation 
 subjecting neutral property, found in the vessel of an enemy, 
 to confiscation as prize of war, is a concession made by the 
 neutral to the belligerent, and takes from the neutral a privi- 
 lege he possessed under the pre-existing law of nations ; but 
 neither reason nor usage renders the two concessions so indis- 
 soluble, that the one cannot exist without the other. 
 
 It was upon these grounds that the Supreme Court of the 
 United States determined that the Treaty of 1795, between 
 them and Spain, which stipulated that free ships should make 
 free goods, did not necessarily imply the converse proposition, 
 that enemy ships should make enemy goods, the treaty being 
 silent as to the latter ; and that, consequently, the goods of a 
 Spanish subject, found on board the vessel of an enemy of the 
 United States, were not liable to confiscation as prize of war. 
 And although it was alleged, that the prize law of Spain would 
 subject the property of American citizens to condemnation, 
 when found on board the vessels of her enemy, the court 
 refused to condemn Spanish property found on board a vessel 
 of their enemy, upon the principle of reciprocity ; because the 
 American government had not manifested its will to retaliate 
 
 M M 2 
 
 531
 
 632 RIGHTS OF WAR AS TO NEUTRALS. 
 
 upon Spain ; and until this will was manifested by some legis- 
 lative act, the court was bound by the general law of nations 
 constituting a part of the law of the land (i). 
 
 446. The conventional law, in respect to the rule now in question, 
 Conven- jj as fluctuated at different periods, according to the fluctuating 
 as to free policy and interests of the different maritime States of Europe. 
 gh o P d ^ ^ k as b een rnuch more flexible than the consuetudinary law ; 
 but there is a great preponderance of modern treaties in favour 
 of the maxin, free ships free goods, sometimes, but not always, 
 connected with the correlative maxim, enemy ships enemy 
 goods ; so that it may be said that, for two centuries past, 
 there has been a constant tendency to establish, by compact, 
 the principle, that the neutrality of the ship should exempt 
 the cargo, even if enemy's property, from capture and confis- 
 cation as prize of war. The capitulation granted by the 
 Ottoman Porte to Henry IV. of France, in 1604, has com- 
 monly been supposed to form the earliest example of a relaxa- 
 tion of the primitive rule of the maritime law of nations, as 
 recognized by the Consolato del Mare, by which the goods of 
 an enemy, found on board the ships of a friend, were liable to 
 capture and confiscation as prize of war. But a more careful 
 examination of this instrument will show, that it was not a 
 reciprocal compact between France and Turkey, intended to 
 establish the more liberal maxim of free ships free goods ; but 
 was a gratuitous concession, on the part of the Sultan, of a 
 special privilege, by which the goods of French subjects laden 
 on board the vessels of his enemies, and the goods of his 
 enemies laden on board French vessels, were both exempted 
 from capture by Turkish cruisers. The capitulation expressly 
 declares, art. 10 : " Parceque des sujets de la France navi- 
 guent sur vaisseaux appartenans a nos ennemis, et les chargent 
 de leurs marchandises, et dtant rencontre's, ils sont faits le plus 
 souvent esclaves, et leurs marchandises prises ; pour cette 
 cause, nous commandons et voulons qu'a 1'avenir, ils ne puis- 
 sent etre pris sous ce pre'texte, ni leurs faculte's confisquees, 
 a moins qu'ils ne soient trouve's sur vaisseaux en course," etc. 
 Art. 12 : " Que les marchandises qui seront chargees sur 
 vaisseaux Fran9ais appartenantes aux ennemis de notre Porte, 
 
 (i) The Nereide, 9 Cranch,,388.
 
 RIGHTS OF WAR AS TO NEUTRALS. 533 
 
 ne puissent etre prises sous couleur qu'ils sont de nos dits 
 ennemis, puisque ainsi est notre vouloir " (&). 
 
 It became, at an early period, an object of interest with *& 
 
 TT , . , -. , Treaties of 
 
 Holland, a great commercial and navigating country, whose Holland on 
 permanent policy was essentially pacific, to obtain a relaxation *jj sub ' 
 of the severe rules which had been previously observed in 
 maritime warfare. The States-General of the United Pro- 
 vinces having complained of the provisions in the French 
 ordinance of Henry II., 1538, a treaty of commerce was con- 
 cluded between France and the Republic, in 1646, by which 
 the operation of the ordinance, so far as respected the capture 
 and confiscation of neutral vessels for carrying enemy's pro- 
 perty, was suspended ; but it was found impossible to obtain 
 any relaxation as to the liability to capture of enemy's pro- 
 perty in neutral vessels. The Dutch negotiator in Paris, in 
 his correspondence with the grand pensionary De Witt, states 
 that he had obtained the "repeal of the pretended French 
 law, que robe d'ennemi confisque celle d'ami; so that if, for 
 the future, there should be found in a free Dutch vessel effects 
 belonging to the enemies of France, these effects alone will be 
 confiscable, and the ship with the other goods will be restored ; 
 for it is impossible to obtain the twenty-fourth article of my 
 Instructions, where it is said that the freedom of the ship 
 ought to free the cargo, even if belonging to an enemy." This 
 latter dencession the United Provinces obtained from Spain by 
 the treaty of 1650 ; from France by the treaty of alliance of 
 1662 ; and by the commercial treaty signed at the same time 
 with the peace at Nimiguen in 1678, confirmed by the treaty 
 of Byswick in 1697. The same stipulation was continued in 
 the treaty of the Pyrenees between France and Spain, in 1659. 
 
 (k) Flassan, Histoire de la Diplomatic Franchise, torn. ii. p. 226. M. Flas- 
 san observes: "C'est a tort qu'on a donne a ces Capitulations le nom de 
 traite, lequel suppose deux parties contractantes, stipulans sur leurs interets ; 
 ici on ne trouve que des concessions de priveleges, et des exemptions de pure 
 liberalite faites par la Porte a la France. " In the first English edition of this 
 work, and also in another more recently published, under the title of " History 
 of the Law of Nations," the author has been misled, by following the autho- 
 rity of Aznni and other compilers, into the erroneous conclusion, that the 
 above capitulation was intended to change the primitive law, as observed 
 among the maritime States of the Mediterranean from the earliest times, and 
 to substitute a more liberal rule for that of the Consolato del Marc, of which 
 the Turks must necessarily be supposed to have been ignorant, and which the 
 French king did not stipulate to relax in their favour, where the goods of his 
 enemies should be found on board Turkish vessels.
 
 534 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 448. 
 
 Portuguese 
 treaty. 
 
 449. 
 
 Union of 
 the two 
 mcaxims i] 
 treaties. 
 
 450. 
 
 Armed 
 neutrality 
 of 1780. 
 
 The rule of free ships free goods was coupled, in these treaties, 
 with its correlative maxim, enemy ships enemy goods. The 
 same concession was obtained by Holland from England, in 
 1668 and 1674, as the price of an alliance between the two 
 countries against the ambitious designs of Louis XIV. These 
 treaties gave rise, in the war which commenced in 1756 be- 
 tween France and Great Britain, to a very remarkable contro- 
 versy between the British and Dutch governments, in which it 
 was contended, on the one side, that Great Britain had 
 violated the rights of neutral commerce, and on the other, that 
 the States-General had not fulfilled the guaranty which con- 
 stituted the equivalent for the concession made to the neutral 
 flag, in derogation of the pre-existing law of nations (I). 
 
 A treaty of commerce and navigation was concluded between 
 the Republic of England and the King of Portugal in 1654, 
 by which the principle of free ships free goods, coupled with 
 the correlative maxim of enemy ships enemy goods, was adopted 
 between the contracting parties. This stipulation continued 
 to form the conventional law between the two nations, also 
 closely connected by political alliance, until the revision of 
 this treaty in 1810, when the stipulation in question was 
 omitted, and has never since been renewed. 
 
 The principle that the character of the vessel should deter- 
 mine that of the cargo, was adopted by the treaties of Utrecht 
 of 1713, subsequently confirmed by those of 1721 an* 1739, 
 between Great Britain and Spain, by the treaty of Aix-la- 
 Chapelle, in 1748, and of Paris in 1763, between Great 
 Britain, France, and Spain (m). 
 
 Such was the state of the consuetudinary and conventional 
 law prevailing among the principal maritime powers of Europe, 
 when the declaration of independence by the British North 
 American colonies, now constituting the United States, gave 
 rise to a maritime war between France and Great Britain. 
 
 (I) Dumont, Corps Diplomatique, torn, vi.pt. i. p. 342. Flassan, Histoire 
 de la Diplomatic Frai^aise, tom. iii. p. 451. A pamphlet was published 
 on the occasion of this controversy between the British and Dutch govern- 
 ments, by the elder Lord Liverpool, (then Mr. Jenkinson,) entitled, "A Dis- 
 course on the Conduct of Great Britain in respect to Neutral Nations during 
 the present War," which contains a very full and instructive discussion of the 
 question of neutral navigation, both as resting on the primitive law of nations 
 and on treaties. London, 8vo. 1757. 2nd ed. 1794; 3rd ed. 1801. 
 
 (m) Wheaton's Hist. Law of Nations, pp. 120 125.
 
 RIGHTS OF WAR AS TO NEUTRALS. 535 
 
 With a view to conciliate those powers which remained 
 neutral in this war, the cabinet of Versailles issued, on the 
 2Gth of July, 1778, an ordinance or instruction to the French 
 cruisers, prohibiting the capture of neutral vessels, even 
 when bound to or from enemy ports, unless laden in whole 
 or in part with contraband articles destined for the enemy's 
 use ; reserving the right to revoke this concession, unless the 
 enemy should adopt a reciprocal measure within six months. 
 The British government, far from adopting any such measure, 
 issued in March, 1780, an order in council suspending the 
 special stipulations respecting neutral commerce and naviga- 
 tion contained in the treaty of alliance of 1674, between 
 Great Britain and the United Provinces upon the alleged 
 ground that the States-General had refused to fulfil the reci- 
 procal conditions of the treaty. Immediately after this order 
 in council, the Empress Catharine II. of Russia communi- 
 cated to the different belligerent and neutral powers the 
 famous declaration of neutrality, the principles of which were 
 acceded to by France, Spain, and the United States of America, 
 as belligerent ; and by Denmark, Sweden, Prussia, Holland, 
 the Emperor of Germany, Portugal, and Naples, as neutral 
 powers. By this declaration, which afterwards became the 
 basis of the armed neutrality of the Baltic powers, the rule 
 that free ships make free goods was adopted, without the 
 previously associated maxim that enemy ships should make 
 enemy goods. The Court of London answered this declara- 
 tion by appealing to the " principles generally acknowledged 
 as the law of nations, being the only law between powers 
 where no treaties subsist;" and to the "tenor of its different 
 engagements with other powers, where those engagements had 
 altered the primitive law by mutual stipulations, according to 
 the will and convenience of the contracting parties." Cir- 
 cumstances rendered it convenient for the British govern- 
 ment to dissemble its resentment towards Russia, and the 
 other northern powers, and the war was terminated without 
 any formal adjustment of this dispute between Great Britain, 
 and the other members of the armed neutrality (n). 
 
 (n) Flassan, Diplomatic Fransaise, torn. vii. pp. 183, 273. Annual Re- 
 gister, vol. xxiii. p. 205, State Papers, pp. 345356; vol. xxiv. p aoO 
 Wheaton's Hist. Law of Nations, pp. 294 SOS.
 
 536 EIGHTS OF WAR AS TO NEUTRALS. 
 
 4 . 51 - By the treaties of peace concluded at Versailles in 1783, 
 uniting the between Great Britain, France, and Spain, the treaties of 
 renewed" * Utrecht were once more revived and confirmed. This con- 
 firmation was again reiterated in the commercial treaty of 
 1786, between France and Great Britain, by which the two 
 kindred maxims were once more associated. In the negotia- 
 tions at Lisle in 1797, it was proposed by the British pleni- 
 potentiary, Lord Malmesbury, to renew all the former treaties 
 between the two countries confirmatory of those of Utrecht. 
 This proposition was objected to by the French ministers, for 
 several reasons foreign to the present subject ; to which Lord 
 Malmesbury replied that these treaties were become the law 
 of nations, and that infinite confusion would result from their 
 not being renewed. It is probable, however, that his lordship 
 meant to refer to the territorial arrangements rather than to 
 the commercial stipulations contained in these treaties. Be 
 this as it may, the fact is, that they were not renewed, either 
 by the treaty of Amiens in 1802, or by that of Paris in 1814. 
 452. During the protracted wars of the French Revolution all the 
 durir)g C< the belligerent powers began by discarding in practice, not only 
 
 French the principles of the armed neutrality, but even the generally 
 Revolution. . , . . .. ,, , i .1 . i * 
 
 received maxims of international law, by which the rights of 
 neutral commerce in time of war had been previously regu- 
 lated. "Russia," says Von Martens, " made common cause 
 with Great Britain and with Prussia, to induce Denmark and 
 Sweden to renounce all intercourse with France, and especially 
 to prohibit their carrying goods to that country. The incom- 
 patibility of this pretension with the principles established by 
 Russia in 1780, was veiled by the pretext, that in a war like 
 that against revolutionary France, the rights of neutrality did 
 not come in question." France, on her part, revived the 
 severity of her ancient prize code, by decreeing, not only the 
 capture and condemnation of the goods of her enemies found 
 on board neutral vessels, but even of the vessels themselves 
 laden with goods of British growth, produce, and manufacture. 
 453. But in the further progress of the war, the principles which 
 neutralit ^ad formed the basis of the armed neutrality of the northern 
 of 1800. powers in 1780, were revived by a new maritime confederacy 
 between Russia, Denmark, and Sweden, formed in 1800, to 
 which Prussia acceded. This league was soon dissolved by
 
 RIGHTS OF WAR AS TO NEUTRALS. 537 
 
 the naval power of Great Britain and the death of the 
 Emperor Paul ; and the principle now in question was ex- 
 pressly relinquished by Kussia in the convention signed at St. 
 Petersburg in 1801, between that power and the British 
 Government, and subsequently acceded to by Denmark and 
 Sweden. In 1807, in consequence of the stipulations con- 
 tained in the treaty of Tilsit between Russia and France, a 
 declaration was issued by the Russian Court, in which the 
 principles of the armed neutrality were proclaimed anew, 
 and the convention of 1801 was annulled by the Emperor 
 Alexander. In 1812, a treaty of alliance against France was 
 signed by Great Britain and Russia ; but no convention re- 
 specting the freedom of neutral commerce and navigation has 
 been since concluded between these two powers (o). 
 
 The maritime law of nations, by which the intercourse of 454. 
 the European States is regulated, has been adopted by the ^V"^ 1 '" 
 new communities which have sprung up in the western hemi- law of 
 sphere, and was considered by the United States as obligatory ^pted by 
 
 upon them during the war of their revolution. During that America, 
 war the American Courts of Prize acted upon the generally fi e( i by 
 received principles of European public law, that enemy's pro- trea *y- 
 perty in neutral vessels was liable to, whilst neutral property 
 in an enemy's vessel was exempt from capture and confisca- 
 tion ; until Congress issued an ordinance recognizing the 
 maxims of the armed neutrality of 1780, upon condition that 
 they should be reciprocally acknowledged by the other belli- 
 gerent powers. In the instructions given by Congress, in 
 1784, to their ministers appointed to treat with the different 
 European Courts, the same principles were proposed as the 
 basis of negotiation by which the independence of the United 
 States was to be recognized. During the wars of the French 
 Revolution, the United States, being neutral, admitted that 
 the immunity of their flag did not extend to cover enemy's 
 property, as a principle founded in the customary law and 
 established usage of nations, though they sought every oppor- 
 tunity of substituting for it the opposite maxim of free ships 
 free goods, by conventional arrangements with, such nations 
 as were disposed to adopt that amendment of the law. In the 
 course of the correspondence which took place between the 
 (o) Wheaton's Hist. Law of Nations, pp. 397401.
 
 538 RIGHTS OF WAR AS TO NEUTRALS. 
 
 minister of the French Republic and the Government of the 
 United States, the latter affirmed that it could not be doubted 
 that, by the general law of nations, the goods of a friend found 
 in the vessel of an enemy are free, and the goods of an enemy 
 found in the vessel of a friend are lawful prize. It was true, 
 that several nations, desirous of avoiding the inconvenience of 
 having their vessels stopped at sea, overhauled, carried into 
 port, and detained, under pretence of having enemy's goods 
 on board, had, in many instances, introduced, by special 
 treaties, the principle that enemy ships should make enemy 
 goods, and friendly ships friendly goods ; a principle much 
 less embarrassing to commerce, and equal to all parties in 
 point of gain and loss : but this was altogether the effect of 
 particular treaty, controlling in special cases the general prin- 
 ciple of the law of nations, and therefore taking effect between 
 such nations only as have so agreed to control it. England 
 had generally determined to adhere to the rigorous principle, 
 having in no instance, so far as was recollected, agreed to the 
 modification of letting the property of the goods follow that of 
 the vessel, except in the single one of her treaties with France. 
 The United States had adopted this modification in their 
 treaties with France, with the United Netherlands, and with 
 Prussia ; and, therefore, as to those powers, American vessels 
 covered the goods of their enemies, and the United States lost 
 their goods when in the vessels of the enemies of those powers. 
 With Great Britain, Spain, Portugal, and Austria, the United 
 States had then no treaties; and therefore had nothing to 
 oppose them in acting according to the general law of nations, 
 that enemy goods are lawful prize though found in the ships 
 of a friend. Nor was it perceived that France could, on the 
 whole, suffer ; for though she lost her goods in American 
 vessels, when found therein by England, Spain, Portugal, or 
 Austria ; yet she gained American goods when found in the 
 vessels of England, Spain, Portugal, Austria, the United 
 Netherlands, or Prussia : and as the Americans had more 
 goods afloat in the vessels of those six nations, than France 
 had afloat in their vessels, France was the gainer, and they 
 the losers, by the principle of the treaty between the two 
 countries. Indeed, the United States were the losers in every 
 direction of that principle ; for when it worked in their favour,
 
 RIGHTS OF WAR AS TO NEUTRALS. 539 
 
 it was to save the goods of their friends ; when it worked 
 against them, it was to lose their own, and they would con- 
 tinue to lose whilst it was only partially established. When 
 they should have established it with all nations, they would 
 be in a condition neither to gain nor lose, but would be less 
 exposed to vexatious searches at sea. To this condition the 
 United States were endeavouring to advance ; but as it de- 
 pended on the will of other nations, they could only obtain 
 it when others should be ready to concur QJ). 
 
 By the treaty of 1794 between the United States and 455. 
 Great Britain, article 17, it was stipulated that vessels, cap- 9 onnict 
 
 _ . * r in pro- 
 
 tured on suspicion of having on board enemy's property or visions of 
 contraband of war, should be carried to the nearest port for ^^'jw. 
 adjudication, and that part of the cargo only which consisted land and 
 of enemy's property, or contraband for the enemy's use, France, 
 should be made prize, and the vessel be at liberty to proceed 
 with the remainder of her cargo. In the treaty of 1778, 
 between France and the United States, the rule of free ships 
 free goods had been stipulated ; and, as we have already 
 seen, France complained that her goods were taken out of 
 American vessels without resistance by the United States, 
 who, it was alleged, had abandoned by their treaty with Great 
 Britain their antecedent engagements to France, recognizing 
 the principles of the armed neutrality. 
 
 To these complaints, it was answered by the American 
 government, that when the treaty of 1778 was concluded, 
 the armed neutrality had not been formed, and consequently 
 the state of things on which that treaty operated was regu- 
 lated by the pre-existing law of nations, independently of the 
 principles of the armed neutrality. By that law, free ships 
 did not make free goods, nor enemy ships enemy goods. 
 The stipulation, therefore, in the treaty of 1778 formed an 
 exception to a general rule, which retained its obligation in 
 all cases where not changed by compact. Had the treaty of 
 1794 between the United States and Great Britain not been 
 formed, or had it entirely omitted any stipulation on this 
 subject, the belligerent right would still have existed. The 
 
 (p) Mr. Jefferson's Letter to M. Genet, July 24, 1793. Waite's State 
 Papers, vol. i. p. 1J34. See also President Jefi'er.soii's Letter to Mr. R. l\. 
 Livingston, American Minister at Paris, Sept. 9, 1801. Jefl'ersoii's Memoirs, 
 vol. iii. p. 489.
 
 640 
 
 EIGHTS OF WAS AS TO NEUTRALS. 
 
 456. 
 
 Discussion 
 between 
 the Ameri- 
 can and 
 Prussian 
 govern- 
 ments. 
 
 457. 
 American 
 instruc- 
 tions to 
 omit the 
 rule of free 
 ships free 
 goods. 
 
 treaty did not concede a new right, but only mitigated the 
 practical exercise of a right already acknowledged to exist. The 
 desire of establishing universally the principle, that neutral 
 ships should make neutral goods, was felt by no nation more 
 strongly than by the United States. It was an object which 
 they kept in view, and would pursue by such means as their 
 judgment might dictate. But the wish to establish a principle 
 was essentially different from an assumption that it is already 
 established. However solicitous America might be to pursue 
 all proper means tending to obtain the concession of this prin- 
 ciple by any or all of the maritime powers of Europe, she had 
 never conceived the idea of obtaining that consent by force. 
 The United States would only arm to defend their own rights : 
 neither their policy nor their interests permitted them to arm 
 in order to compel a surrender of the rights of others (q). 
 
 The principle of free ships free goods had been stipulated 
 by the treaty of 1785, art. 12, between the United States 
 and Prussia, without the correlative maxim of enemy ships 
 enemy goods. By the 12th article of this treaty it was pro- 
 vided, that " if one of the contracting parties should be 
 engaged in war with any other power, the free intercourse 
 and commerce of the subjects or citizens of the party remain- 
 ing neuter with the belligerent powers shall not be inter- 
 rupted. On the contrary, in that case, as in full peace, the 
 vessels of the neutral party may navigate freely to and from 
 the ports and on the coasts of the belligerent parties, free 
 vessels making free goods, insomuch that all things shall be 
 adjudged free which shall be on board any vessel belonging to 
 the neutral party, although such things belong to an enemy 
 of the other ; and the same freedom shall be extended to 
 persons who shall be on board a free vessel, although they 
 should be enemies to the other party, unless they be soldiers 
 in actual service of such enemy." 
 
 The above treaty having expired, by its own limitation, in 
 1796, a negotiation was commenced by the American and 
 Prussian governments for its renewal. In the instructions 
 given by the former to its plenipotentiary, Mr. J. Q. Adams, 
 
 (a) Letter of the American Envoys at Paris, Messrs. Marshall, Pinkney, 
 and Gerry, to M. de Talleyrand, Jan. 17, 1798. Waite's .State Papers, vol. iv. 
 pp. 3847.
 
 RIGHTS OF WAR AS TO NEUTRALS. 541 
 
 it was stated that the principle of free ships free goods, recog- 
 nised in the 12th article, was a principle which the United 
 States had adopted in all their treaties, (except that with Great 
 Britain,) and which they sincerely desired might become uni- 
 versal ; but they had found by experience, that treaties formed 
 for this object were of little or no avail ; because the prin- 
 ciple was not universally admitted among maritime nations. 
 It had not been observed in respect to the United States, 
 when it would operate to their benefit ; and might be insisted 
 on only when it would prove injurious to their interests. 
 The American plenipotentiary was therefore directed to pro- 
 pose to the Prussian cabinet the abandonment of this article 
 in the new treaty which he was empowered to negotiate (r). 
 
 It was further stated, in an additional explanatory instruc- 
 tion given by the American government to its plenipotentiary, 
 that, in the former instruction, the earnest wishes of the 
 United States were meant to be expressed, that the principle 
 of free ships free goods should become universal. This prin- 
 ciple was peculiarly interesting to them, because their naval 
 concerns were mercantile and not warlike ; and it would readily 
 be perceived, that the abandonment of that principle was 
 suggested by the measures of the belligerent powers, during 
 the war then existing, in which the United States had found 
 that neither the obligations of the pretended modern law of 
 nations, nor the solemn stipulations of treaties, secured its 
 observation ; on the contrary, it had been made the sport of 
 events. Under such circumstances, it appeared to the Presi- 
 dent desirable to avoid renewing an obligation which would 
 probably be enforced when their interest might require its 
 dissolution, and be contemned when they might derive some 
 advantage from its observance. It was possible, that in the 
 then pending negotiations of peace, the principle of free 
 ships free goods might be adopted by all the great maritime 
 powers ; in which case the United States would be among the 
 first of the other powers to accede to it, and to observe it as a 
 universal rule. The result of the negotiations would pro- 
 bably be known to the American plenipotentiary, before the 
 renewal of the Prussian Treaty ; and he was directed to con- 
 
 (r) Mr. Secretary Pickering to Mr. John Quincy Adams, Minister of the 
 U. S. at Berlin, July 15, 1797.
 
 542 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 458. 
 Objection 
 of Mr. J. 
 Q. Adams 
 
 to the 
 omission. 
 
 form his stipulations on this point to the result of those 
 negotiations. But if the negotiations for peace should be 
 broken up, and the war continued, and more especially if the 
 United States should be forced to become a party to it, then 
 it would be extremely impolitic to confine the exertions of 
 their armed vessels within narrower limits than the law of 
 nations prescribes. If, for instance, France should proceed, 
 from her predatory attacks on American commerce, to open 
 war, the mischievous consequences of any other limitations 
 would be apparent. All her commerce would be sheltered 
 under neutral flags; whilst the American commerce would 
 remain exposed to the havoc of her numerous cruisers (s). 
 
 In acknowledging the receipt of these instructions, the 
 American plenipotentiary questioned the expediency of the 
 proposed alteration, in the stipulation contained in the 12th 
 article of the Treaty of 1785. He stated that the principle 
 of making free ships protect enemy's property, had always 
 been cherished by the maritime powers not having large 
 navies, though stipulations to that effect had been, in all 
 wars, more or less violated. In the then present war, indeed, 
 they had been less respected than usual ; because Great 
 Britain had held a more uncontrolled command of the sea, 
 and had been less disposed than ever to concede the 
 principle ; and because France had disclaimed most of 
 the received and established ideas upon the law of nations, 
 and considered herself as liberated from all the obligations 
 towards other States which interfered with her present 
 objects, or the interests of the moment. Even during that 
 war, however, several decrees of the French Convention, 
 passed at times when the force of solemn national engage- 
 ments was felt, had recognised the promise contained in the 
 Treaty of 1778, between the United States and France ; and, 
 at times, this promise had been, in a great degree, observed. 
 France was still attached to the principles of the armed 
 neutrality, and yet more attached to the idea of compelling 
 Great Britain to assent to them. Indeed, every naval State 
 was interested in the maintenance of liberal maxims in 
 maritime affairs, against the domineering policy of the latter 
 power. Every instance, therefore, in which those principles 
 (s) Mr. Secretary Pickering to Mr. John Quincy Adams, July 17, 1797.
 
 RIGHTS OF WAR AS TO NEUTRALS. 543 
 
 which favour the rights of neutrality should be abandoned 
 by neutral powers, was to be regretted, as furnishing argu- 
 ment, or at least example, to support the British doctrines. 
 There was certainly a great inconvenience when two maritime 
 States were at war, for a neutral nation to be bound by one 
 principle to one of the parties, and by its opposite to the 
 other ; and, in such cases, it was never to be expected that 
 an engagement favourable to the rights of neutrality would 
 be scrupulously observed by either of the warring States. It 
 appeared to the American plenipotentiary that the stipulation 
 ought to be made contingent, and that the contracting parties 
 should agree, that in all cases when one of the parties should 
 be at war, and the other neutral, the neutral bottom should 
 cover enemy's property, provided the enemy of the leaning 
 power admitted the same principle, and practised upon it in 
 their Courts of Admiralty ; but if not, that the rigorous 
 rule of the ordinary law of nations should be observed (i). 
 
 In a subsequent communication of the American plenipo- 45 9. 
 tentiary to his government, he states that he should be reSmsiders 
 guided by its instructions relative to this matter, although * he sub " 
 he was still of opinion that the proposed alteration in the 
 previous treaty would be inexpedient. Sweden and Prussia 
 were both strongly attached to the principle of making the 
 ship protect the cargo. They had more than once contended, 
 that such is the rule even by the ordinary law of nations. A 
 Danish writer of some reputation, in a treatise upon the com- 
 merce of neutrals in time of war, had laid it. down as a rule, 
 and argued formally, that, by the law of nature, free ships 
 make free goods (u). Lampredi, a recent Florentine author, 
 upon the same topic, had discussed the question at length ; 
 and contended that by the natural law, in this case, there is 
 a collision of two rights equally valid ; that the belligerent 
 has a right to detain, but that the neutral has an equal right 
 to refuse to be detained. This reduced the matter to a mere 
 question of force, in which the belligerent, being armed, 
 naturally enjoys the best advantage (x). He confessed that 
 
 (t) Mr. J. Q. Adams to Mr. Secretary Pickering, October 31, 1797; May 17, 
 1798. 
 
 (it) Hiibner, De la Saisie des Batimens neutres. Wheaton's Hist. Law of 
 Nations, pp. 219229. 
 
 (x) Lampredi, Del Commercio dei Popoli neutrali in Tempo de Gucrra. 
 Wheatoii's Hist. Law of Nations, pp. 314, 319.
 
 544 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 the reasoning of Lampredi had, in his mind, great weight, 
 and that this writer appeared to have stated the question in 
 its true light. Under these circumstances, he intended to 
 propose a conditional article, putting the principle upon a 
 footing of reciprocity, and agreeing that the principle, with 
 regard to bottom and cargo, should depend upon the principle 
 guiding the Admiralty Courts of the enemy. This would at 
 once discover the American inclination and attachment to 
 the liberal rule, and yet not make them the victims of their 
 adherence to it, while violated by their adversaries. Acting 
 under the instructions of his government, he should not accede 
 to the renewal of the article, under its form in the previous 
 treaty (y). 
 
 460. The American negotiator, following the letter of his in- 
 Proposai structions, proposed, in the first instance, to the Prussian 
 
 made to 
 
 Prussia. plenipotentiaries, to substitute, instead of this article, the 
 ordinary rule of the law of nations, which subjects to seizure 
 enemy's property on board of neutral vessels. This proposi- 
 tion was supported, upon the ground that although the 
 principle, which communicates to the cargo the character of 
 the vessel, would be conformable to the interests of the 
 United States, of Prussia, and of all the powers preserving 
 neutrality in maritime wars, if it could be universally acknow- 
 ledged and respected by the belligerent powers ; yet it was 
 well known that the powers most frequently engaged in naval 
 wars did not recognize, or, if they recognized, did not respect, 
 the principle. The United States had experienced, during 
 the then present war, the fact, that even the most formal 
 treaty did not secure to them the advantage of this principle ; 
 but, on the contrary, only contributed to accumulate the 
 losses of their citizens, by encouraging them to load their 
 vessels with merchandise declared free, which they had, not- 
 withstanding, seen taken and confiscated, as if no engage- 
 ment had promised them complete security. At the then 
 present moment, neither of the powers at war admitted the 
 freedom of enemy's property on board of neutral vessels. If, 
 in the course of events, either of the contracting parties 
 should be involved in war with one or the other of those 
 powers, she would be obliged to behold her enemy possess 
 (y) Mr. J. Q. Adams to Mr. Secretary Pickering, May 25, 1798.
 
 RIGHTS OF WAR AS TO NEUTRALS. 545 
 
 the advantage of a free conveyance for his goods, without 
 possessing the advantage herself, or else to violate her own 
 engagements, by treating the neutral party as the enemy 
 should treat her (z), 
 
 The Prussian plenipotentiaries, in their answer to these 461 - 
 arguments, stated that it could not be denied that the ancient Prussia, 
 principle of the freedom of navigation had been little re- 
 spected in the two last wars, and especially in that which 
 still subsisted ; but it was not the less true that it had 
 served, until the present time, as the basis of the commerce 
 of all neutral nations ; that it had been, and was still main- 
 tained, in consequence. If it should be suddenly abandoned 
 and subverted in the midst of the then present war, the fol. 
 lowing consequences would result : 
 
 1. An inevitable confusion in all the commercial specula- 
 tions of neutral nations, and the rejection of all the claims 
 prosecuted by them 'in the Admiralty Courts of France and 
 Great Britain, for illegal captures. 
 
 2. A collision with the northern powers, which sustained 
 the ancient principle, at that very moment, by armed con 
 voys. 
 
 3. Nothing would be gained in establishing, at the present 
 moment, the principle that neutral property on board enemy 
 vessels should be free from capture. The belligerent powers 
 would be no more disposed to admit this principle than the 
 other, and it would furnish an additional reason to authorize 
 their tribunals to condemn prizes made in contravention of 
 the ancient rule. 
 
 4. Even supposing that the great maritime powers of 
 Europe should be willing to recognize the principle proposed 
 to be substituted by the United States, it would only increase 
 the existing embarrassments incident to judicial proceedings 
 respecting maritime captures ; as, instead of determining the 
 national character of the cargo by that of the vessel, it would 
 become necessary to furnish separate proofs applicable to 
 each. 
 
 All these difficulties combined induced the Prussian 4 g 2 
 
 minister to insist on inserting the 12th article of the Treaty Proposal 
 
 J made by 
 
 (z) Mr. J. Q. Adams to MM. Finkenstein, Alvensleben, and Haugwitz, PrU88ia< 
 July 11, 1798. 
 
 K V
 
 546 RIGHTS OF WAR AS TO NEUTRALS. 
 
 of 1785 in the new treaty, qualified with the following ad- 
 ditional stipulation : 
 
 " That experience having unfortunately proved, in the 
 course of the present war, that the ancient principle of free 
 neutral navigation has not been sufficiently respected by the 
 belligerent powers, the two contracting parties propose, after 
 the restoration of a general peace, to agree, either separately 
 between themselves, or jointly with the other powers alike 
 interested, to concert with the great maritime powers of 
 Europe such an arrangement as may serve to establish, by 
 fixed and permanent rules, the freedom and safety of neutral 
 navigation in future wars (a)." 
 
 463. The American negotiator, in his reply to this communica- 
 tion > stated, that the alteration in the former treaty, proposed 
 by his government, was founded on the supposition, that, by 
 the ordinary law of nations, enemy's property on board of 
 neutral vessels, is subject to capture, whilst neutral property, 
 on board of enemy's vessels, is free. That this rule could not 
 be changed but by the consent of all maritime powers, or by 
 special treaties, the stipulations of which could only extend 
 to the contracting parties. That the opposite principle, the 
 establishment of which was one of the main objects of the 
 armed neutrality during the war. of American Independence, 
 had not been universally recognized even at that period ; and 
 had not been observed, during the then present war, by any 
 one of the powers who acceded to that system. That Prussia 
 herself, whilst she remained a party to the war against France, 
 did not admit the principle ; and that, at the then present 
 moment, the ancient principle of the law of nations subsisted 
 in its whole force between all the powers, except in those 
 cases where the contrary rule was stipulated by a positive treaty. 
 
 In proposing, therefore, to recognize the freedom of neutral 
 property on board of enemy's vessels, and to recognize, as 
 subject to capture, enemy's property, on board of neutral 
 vessels, nothing more was intended than to confirm by the 
 treaty those principles which already existed independently 
 of all treaty ; it was not intended to make, but to avoid a 
 change, in the actual order of things. 
 
 (a) MM. Finkenstein, Alvensleben, and Haugwitz, to Mr. J. Q. Adams, 
 25th September, 1798.
 
 RIGHTS OF WAR AS TO NEUTRALS. 547 
 
 Far from wishing to dictate, in this respect, to the bellige- 
 rent powers, it had not been supposed that an agreement 
 between Prussia and the United States could, in any manner, 
 serve as a rule to other powers not parties to the treaty, in 
 respect to maritime captures ; and as the effect of such a con- 
 vention, even between the contracting parties, would not be 
 retroactive, but would respect the future only, it had been 
 still less supposed that the just claims of the subjects of 
 neutral powers, whether in England or in France, on account 
 of illegal captures, could be in any manner affected by it. 
 
 Nor had it been apprehended that such a convention would 
 produce any collision with the northern powers, since they 
 could not be bound by a treaty to which they were not parties ; 
 and this supposed contradiction would still less concern 
 Russia, because, far from having maintained the principle 
 that the neutral flag covers enemy's property, she had engaged 
 by her convention with Great Britain, of the 25th of March, 
 
 1793, to employ all her efforts against it during the then 
 present war. 
 
 Sweden and Denmark, by their convention of the 27th March, 
 
 1794, engaged reciprocally towards each other, and towards 
 all Europe, not to claim, except in those cases expressly pro- 
 vided for by treaty, any advantage not founded upon the 
 universal law of nations, " recognized and respected unto the 
 present time by all the powers and by all the sovereigns of 
 Europe." It was not conceived possible to include, under 
 this description, the principle that the cargo must abide the 
 doom of the flag under which it is transported ; and it might 
 be added, that experience had constantly demonstrated the 
 insufficiency of armed convoys to protect this principle, since 
 they were seen regularly following, without resistance, the 
 merchant vessel under their convoy into the ports of the belli- 
 gerent powers, to be there adjudged according to the princi- 
 ples established by their tribunals ; principles which were en- 
 tirely contrary to that by which the ship neutralizes the cargo. 
 
 According to the usage adopted by the tribunals of all 
 maritime States, the proofs as to the national character of the 
 cargo ought to be distinct from those which concern that of 
 the vessel. Even in those treaties which adopt the principle 
 that the flag covers the property, it is usual to stipulate for 
 
 x x 2
 
 548 RIGHTS OF WAR AS TO NEUTRALS. 
 
 papers applicable to the cargo, in order to show that it is not 
 contraband. The charter-party and the bills of lading had 
 been referred to by the Prussian ministers, as being required 
 by the Prussian tribunals, and which it was proposed to 
 designate as essential documents in the new treaty. It would 
 seem, then, that the adoption of the principle in question 
 would not require a single additional paper, and, consequently, 
 would not increase the difficulty of prosecuting claims against 
 captors ; at the utmost, it could only be regarded as a very 
 small inconvenience, in comparison with the losses occasioned 
 by the recognition of a principle already abandoned by almost 
 all the maritime powers, and which had been efficaciously sus- 
 tained by none of them ; of a principle which would operate 
 injuriously to either of the contracting parties that might 
 be engaged in war, whilst its enemy would not respect it, and 
 that party which remained neutral would hold out to its sub- 
 jects the illusory promise of a free trade, only to see it inter- 
 cepted and destroyed. 
 
 But as the views of the Prussian government appeared, in 
 some respects to differ from those of the American, in regard 
 to the true principle of the law of nations, and it appeared to 
 the Prussian ministers that several inconveniences might 
 result from the substitution of the opposite principle to that 
 contained in the former treaty, the American negotiator pro- 
 posed, as an alternative, the omit entirely the stipulations of 
 the 12th article in the new treaty ; the effect of which would 
 be, to leave the question in its then present situation, without 
 engaging either of the contracting parties in any special 
 stipulation respecting it. And as the establishment of a 
 permanent and stable system, with the hope of seeing it main- 
 tained and respected in future wars, was an important object 
 to commerce in general, and especially to that of the contract- 
 ing parties, he was willing to consent to an eventual stipula- 
 tion similar to that proposed by the Prussian ministers ; but 
 which, without implying, on either part, the admission of a 
 contested principle, should postpone the decision of it until 
 after the general peace, either by an ulterior agreement be- 
 tween the contracting parties, or in concert with other powers 
 interested in the question. The United States would always 
 be disposed to adopt the most liberal principles that might be
 
 RIGHTS OF WAR AS TO NEUTRALS. 549 
 
 desired, in favour of the freedom of neutral commerce in time 
 of war, whenever there should be a reasonable expectation of 
 seeing them adopted and recognized in a manner that might 
 secure their practical execution (I). 
 
 The Prussian ministers replied to this counter proposition, 464. 
 by admitting that the rule by which neutral property, found ^ply of 
 on board enemy's vessels, was free from capture, had been Prussia, 
 formerly followed by the greater part of European powers, and 
 w r as established in several treaties of the fourteenth and 
 fifteenth centuries ; but they asserted that it had been aban- 
 doned by maritime and commercial nations, ever since the 
 inconveniences resulting from it had become manifest. In 
 the two treaties concluded as early as 1646, by the United 
 Provinces, with France and with England, the rules of free 
 ships free goods, and of enemy ships enemy goods, were stipu- 
 lated ; and these principles, once laid down, had been repeated 
 in almost all the treaties since concluded between the different 
 commercial nations of Europe. The convention of 1793, 
 between Eussia and England, to which the American nego- 
 tiator had referred, was exclusively directed against France, 
 and merely formed an exception to the rule ; and if, during the 
 commencement of the revolutionary war, the allied powers 
 deemed it necessary to deviate from the recognized principle, 
 this momentary deviation could only be attributed to peculiar 
 circumstances, and it was not the less certain that Prussia had 
 never followed any other than one and the same permanent 
 system, relative to neutral commerce and navigation. This 
 system was founded upon the maxim announced in the 12th 
 article of her former treaty with the United States, which best 
 accorded with the general convenience of commercial nations, 
 by simplifying the proofs of national character, and exempting 
 neutral navigation from vexatious search and interruption. 
 
 The Prussian ministers also declared their conviction that, 
 during the then present war, when the commerce and naviga- 
 tion of neutral nations had been subjected to so many arbitrary 
 measures, the principle proposed by the American negotiator 
 would not be more respected than the former rule ; several 
 recent examples having demonstrated that even neutral vessels, 
 
 (6) Mr. J. Q. Adams to MM. Finkenstein, Alveiiskben, and Haugwitz. 
 October 29, 1798.
 
 550 EIGHTS OF WAR AS TO NEUTRALS. 
 
 exclusively laden with neutral property, had heen subjected to 
 capture and confiscation, under the most frivolous pretexts. 
 But it would be useless to prolong the discussion, as both the 
 parties to the negotiation were agreed that, instead of hazarding 
 a new stipulation, eventual and uncertain in its effects, it 
 would be better to leave it in suspense until the epoch of a 
 general peace, and then to seek for the means of securing the 
 freedom of neutral commerce upon a solid basis during future 
 wars. 
 
 465. The Prussian ministers, therefore, propose to suppress 
 proposal of provisionally the 12th article of the former treaty, and to sub- 
 Prussia, gtitute in its place the following stipulation : 
 
 " Experience having demonstrated, that the principle 
 adopted in the 12th article of the treaty of 1785, according to 
 which free ships make free goods, has not been sufficiently 
 respected during the last two wars, and especially in that 
 which still subsists ; and the contradictory dispositions of the 
 principal belligerent powers not allowing the question in con- 
 troversy to be determined in a satisfactory manner at the 
 present moment, the two high contracting parties propose, 
 after the return of a general peace, to agree, either separately 
 between themselves, or conjointly with other powers alike inter- 
 ested, to concert with the great maritime powers of Europe 
 such arrangements and such permanent principles, as may 
 serve to consolidate the liberty of neutral navigation and com- 
 merce in future wars " (c). 
 
 468. In his reply to this note, the American negotiator declared 
 of lg Mr Stl n ^ na ^ ne wou ld not hesitate to subscribe to the stipulation pro- 
 Adams, posed by the Prussian ministers, if the following words could 
 be omitted : "And the contradictory dispositions of the prin- 
 cipal belligerent powers not allowing the question in contro- 
 versy to be determined in a satisfactory manner at the present 
 moment." It was possible that the belligerent powers might 
 find in these expressions a kind of sanction to their dispo- 
 sitions, which would not accord with the intentions of 
 the contracting parties; and, besides, the American nego- 
 tiator would desire to omit entirely an allusion to a point, of 
 which it was the wish of the two governments to defer the 
 
 (c) MM. Finkenstein, Alvensleben, and Haugwitz, to Mr. J. Q. Adams. 
 29th October, 1798.
 
 RIGHTS OF WAR AS TO NEUTRALS. *3 
 
 consideration, rather than to announce it formally as a con- 
 tested question. 
 
 In order to justify the opinion of his government on the 
 subject of the principle in question, he deemed it his duty to 
 observe, that this opinion was not founded on the treaties of 
 the fourteenth and fifteenth centuries. He considered the 
 principle of the law of nations as absolutely distinct from the 
 engagements stipulated by particular treaties. These treaties 
 could not establish a fixed principle on this point ; because 
 such stipulations bound only the parties by whom they were 
 made, and the persons on whom they operated ; and because, 
 too, in the seventeenth and eighteenth centuries, as well as in 
 the fourteenth and fifteenth, different treaties had adopted 
 different rules for each particular case, according to the con- 
 venience and agreement of the contracting parties. 
 
 Rejecting, therefore, all positive engagements stipulated in 457 
 treaties, it might well be doubted whether a single example meut. 
 could be found, antecedent to the American war, of a mari- 
 time belligerent power which had adopted the principle, 
 that enemy's property is protected by a neutral flag. For, 
 without speaking of England, whose system in this respect is 
 known, France, by the Ordinance of 1774, renewing the pro- 
 visions of that of 1681, declared enemy's property, on board 
 neutral vessels, subject to seizure and confiscation. It ex- 
 cepted from this rule the ships of Denmark and the United 
 Provinces, conformably to the treaties then existing between 
 these powers and France. This ordinance continued to have 
 its effect in the French tribunals until the epoch of the Ordi- 
 nance of the 26th July, 1778. By the first article of this last 
 ordinance the freedom of enemy's property, on board of neutral 
 ships, is yielded to neutrals as a favour, but not as a principle 
 of the law of nations, since the power is reserved to withdraw 
 it at the expiration of six months, if a reciprocal stipulation 
 should not be conceded by the enemy. Spain, by the Ordi- 
 nance of the 1st of July, 1779, and the 13th March, 1780, 
 ordered, in like manner, the seizure and confiscation of enemy's 
 property, found on neutral vessels. 
 
 It would only be added that a celebrated public jurist, a 
 Prussian subject, who, in the first part of the 18th century, 
 wrote a highly esteemed work upon the law of nations, Vattel,
 
 552 RIGHTS OF WAR AS TO NEUTRALS. 
 
 says expressly, (Book 3, sect. 115,) that "when effects be- 
 longing to an enemy are found on board a neutral vessel, they 
 may be seized by the laws of war." He cited no example 
 where the opposite principle had been practised or insisted on. 
 . 468. When, however, the system of armed neutrality was an- 
 fk^ }) 1 Bounced, the United States, although a belligerent power, 
 the United hastened to adopt its principles ; and during the period sue- 
 States. ceeding this epoch, in which they were engaged in war, they 
 scrupulously conformed to them. But on the first occasion when, 
 as a neutral power, they might have enjoyed the advantages 
 attached to this system, they saw themselves deprived of these 
 advantages, not only by the powers who had never acceded to 
 those principles, but also even by the founders of the system. 
 The intentions of the combined powers, it was true, were ex- 
 clusively directed against France ; but the operation of their 
 measures did not less extend to all neutrals, and especially to 
 the United States. However peculiar might have been the 
 circumstances of the war, the rights of neutrality could not be 
 thereby affected. The United States had regretted the aban- 
 donment of principles favourable to the rights of neutrality, 
 but they had perceived their inability to prevent it ; and were 
 persuaded that equity could not require of them to be the 
 victims, at the same time, both of the rule and of the excep- 
 tion ; to be bound, as a belligerent party, by laws of the 
 advantage of which, as a neutral power, they were wholly 
 deprived. 
 
 It was the wish, however, of the United States government 
 to prove, that it had no desire to depart from the principles 
 adopted by the treaty of 1785, except upon occasions when an 
 adherence to those principles would be an act of injustice to 
 the nation whose interests were confided to it. The American 
 negotiator therefore agreed to adopt the proposed new stipula- 
 tion, excepting the words above cited, and adding the following 
 clause : 
 
 " And if, during this interval, one of the high contracting 
 parties shall be engaged in a war, to which the other is 
 neutral, the belligerent power will respect all the property of 
 enemies laden on board the vessel of the neutral party, pro- 
 vided that the other belligerent power shall acknowledge the 
 same principle with regard to every neutral vessel, and that
 
 RIGHTS OF WAR As TO NEUTRALS. 553 
 
 the decisions of his maritime tribunals shall conform 
 to it." 
 
 If this proposition should not be acceptable to the Prussian 
 cabinet, then the American negotiator proposed to adopt nearly 
 the formula of the treaty of 1766 between Prussia and Great 
 Britain, and to stipulate that "as to the search of merchant 
 vessels, in time of war, the vessels of war and the private 
 armed vessels of the belligerent power will conduct themselves 
 as favourably as the objects of the then existing war will 
 permit ; observing, as much as possible, the principles and 
 rules of the law of nations as generally recognised " (d). 
 
 The treaty was finally concluded on the llth July, 1799, 4 69- 
 with the article on this subject proposed by the Prussian pleni- O f t h e 
 potentiaries, and modified on the suggestion of the American treaty- 
 negotiator in the following terms : 
 
 "Art. 12. Experience having proved that the principle 
 adopted in the twelfth article of the treaty of 1785, according 
 to which free skills make free goods, has not been sufficiently 
 respected during the last two wars, and especially in that 
 which still continues, the two contracting parties propose, after 
 the return of a general peace, to agree, either separately between 
 themselves, or jointly with other powers alike interested, to 
 concert with the great maritime powers of Europe such 
 arrangements and such permanent principles, as may serve 
 to consolidate the liberty and the safety of the neutral naviga- 
 tion and commerce in future wars. And if, in the interval, 
 either of the contracting parties should be engaged in war, to 
 which the other should remain neutral, the ships of war and 
 privateers of the belligerent power shall conduct themselves 
 towards the merchant vessels of the neutral power as favour- 
 ably as the course of the war then existing may permit ; ob- 
 serving the principles and rules of the law of nations generally 
 acknowledged " (e). 
 
 On the expiration of the treaty of 1799, the twelfth article 470. 
 of the original treaty of 1785 was again revived, by the pre- ig28 Re- 
 sent subsisting treaty between the United States and Prussia twe . en the 
 of 1828, with the addition of the following clause : States and 
 
 Prussia. 
 
 (d) Mr. J. Q. Adams to MM. Finkenstein, Alveusleben, and Haugwitz, 
 24th December, 1799. 
 
 (c) American State Papers, fol. edit. vol. ii. pp. 251269.
 
 554, 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 Rule in 
 
 American 
 
 Prize 
 
 Courts. 
 
 472. 
 
 Treaties 
 between 
 the United 
 States and 
 the South 
 American 
 republics. 
 
 " The parties being still desirous, in conformity with their 
 intention declared in the twelfth article of the said treaty of 
 1799, to establish between themselves, or in concert with other 
 maritime powers, further provisions to insure just protection 
 and freedom to neutral navigation and commerce, and which 
 may at the same time advance the cause of civilization and 
 humanity, engage again to treat on this subject at some future 
 and convenient period." 
 
 During the war which commenced between the United 
 States and Great Britain in 1812, the Prize Courts of the 
 former uniformly enforced the generally acknowledged rule of 
 international law, that enemy's goods in neutral vessels are 
 liable to capture and confiscation, except as to such powers 
 with whom the American government had stipulated by sub- 
 sisting treaties the contrary rule, that free ships should make 
 free goods. 
 
 In their earliest negotiations with the newly established 
 republics of South America, the United States proposed the 
 establishment of the principle of free ships free goods, as be- 
 tween all the powers of the North and South American conti- 
 nents. It was declared that the rule of public law that the 
 property of an enemy is liable to capture in the vessels of a 
 friend, has no foundation in natural right, and, though it be 
 the established usage of nations, rests entirely on the abuse of 
 force. No neutral nation, it was said, was bound to submit to 
 the usage ; and though the neutral may have yielded at one 
 time to the practice, it did not follow that the right to vindi- 
 cate by force the security of the neutral flag at another, was 
 thereby permanently sacrificed. But the neutral claim to 
 cover enemy's property was conceded to be subject to this 
 qualification ; that a belligerent may justly refuse to neutrals 
 the benefit of this principle, unless admitted also by their 
 enemy for the protection of the . same neutral flag. It is 
 accordingly stipulated, in the treaty between the United States 
 and the Kepublic of Columbia, that the rule of free ships free 
 goods should be understood " as applying to those powers only 
 who recognize this principle ; but if either of the two con- 
 tracting parties shall be at war with a third, and the other 
 neutral, the flag of the neutral shall cover the property of 
 enemies whose governments acknowledge the same principle,
 
 RIGHTS OF WAR AS TO NEUTRALS. 555 
 
 and not of others." The same restriction of the rule had 
 been previously incorporated into the treaty of 1819, between 
 the United States and Spain, and has been subsequently in- 
 serted in their different treaties with the other South American 
 Republics (/). 
 
 It has been decided in the Prize Courts, both of the United 473. 
 States and of Great Britain, that the privilege of the neutral e nlm\e/ 
 flag of protecting enemy's property, whether stipulated by s otls in 
 treaty or established by municipal ordinances, however com- ships by 
 prehensive may be the terms in which it may be expressed, f ^ 1S g rg 
 cannot be interpreted to extend to the fraudulent use of that 
 flag to cover enemy's property in the ship, as well as the 
 cargo ((/). Thus during the war of the Revolution, the United 
 States, recognizing the principles of the armed neutrality 
 of 1780, exempted by an ordinance of Congress all neutral 
 vessels from capture, except such as w r ere employed in carry- 
 ing contraband goods, or soldiers, to the enemy ; it was held 
 by the continental Court of Appeals in prize causes, that this 
 exemption did not extend to a vessel which had forfeited her 
 privilege by grossly unneutral conduct in taking a decided 
 part with the enemy, by combining with his subjects to wrest 
 out of the hands of the United States, and of France, their 
 ally, the advantages they had acquired over Great Britain by 
 the rights of war in the conquest of Dominica. By the capi- 
 tulation of that island, all commercial intercourse with Great 
 Britain had been prohibited. In the case in question, the 
 vessel had been purchased in London, by neutrals, who sup- 
 plied her with false and colourable papers, and assumed on 
 themselves the ownership of the cargo for a voyage from 
 London to Dominica. Had she been employed in a fair com- 
 merce, such as was consistent with the rights of neutrality, 
 her cargo, though the property of an enemy, could not be 
 seized as prize of war ; because Congress had said, by their 
 ordinance, that the rights of neutrality should- extend pro- 
 tection to such effects and goods of an enemy. But if the 
 
 (/) Mr. Secretary Adams's Letter to Mr. Anderson, American minister to 
 the Republic of Columbia, 27th of May, 1823. For the practice of the prize 
 court, as to the allowance or refusal of freight on enemies' goods taken on 
 board neutral ships, and on neutral goods found on board an enemy ship, see 
 Wheaton's Rep. vol ii. Appendix, Note I. pp. 5456. 
 
 (<j) The Citade dc Lisboa, 6 C. Rob. 358.
 
 556 EIGHTS OF WAR AS TO NEUTRALS. 
 
 neutrality were violated, Congress had not said that such a 
 violated neutrality shall give such protection. Nor could 
 they have said so, without confounding all the distinctions of 
 right and wrong ; and Congress did not mean, in their ordi- 
 nance, to ascertain in what cases the rights of neutrality 
 should be forfeited, to the exclusion of all other cases ; for 
 the instances not mentioned were as flagrant as the cases 
 particularised (h). 
 
 By the treaty of 1654, between England and Portugal, it 
 was stipulated (art. 23), " That all goods and merchandise of 
 the said Eepublic or King, or of their people, or subjects 
 found on board the ships of the enemies of either, shall be 
 made prize, together with the ships, and confiscated. But 
 all the goods and merchandise of the enemies of either on 
 board the ships of either, or of their people or subjects, shall 
 remain free and untouched." 
 
 474. Under this stipulation, thus coupling the two opposite 
 ^ n "^ of maxims of free ships free goods, and enemy ships enemy goods, 
 ships ene- it was determined by the British prize courts, that the former 
 not appilc- P rov i s i n f this article, which subjects to condemnation the 
 able when goods of either nation found on board the ships of the enemy 
 are Shipped of the other contracting party, could not be fairly applied to 
 before war. ^j ie case o f property shipped before the contemplation of war. 
 Sir W. Scott (Lord Stowell) observed, in delivering his judg- 
 ment in this case, that it did not follow, that because Spanish 
 property put on board a Portuguese ship, would be protected 
 in the event of the interruption of war, therefore Portuguese 
 property on board a Spanish ship should become instantly 
 confiscable on the breaking out of hostilities with Spain : 
 that, in one case, the conduct of the parties would not have 
 been different, if the event of hostilities had been known. 
 The cargo was entitled to the protection of the ship, gene- 
 rally, by this stipulation of the treaty, even if shipped in 
 open war; and a fortiori, if shipped under circumstances still 
 more favourable to the neutrality of the transaction. In the 
 other case, there might be reason to suppose, that the treaty 
 referred only to goods shipped on board an enemy's vessel, in 
 an avowed hostile character ; and that the neutral merchant 
 would have acted differently, if he had been apprized of the 
 (h) TJie Erstcrn, 2 Dallas, 34.
 
 RIGHTS OF WAR AS TO NEUTRALS. 557 
 
 character of the vessel at the time when the goods were put 
 on board (?). 
 
 The same principle has been frequently incorporated into 475 - 
 treaties between various nations, by which the principle of maxims in 
 free slii2)s free goods is associated with that of enemy ships l * i&T . 
 enemy goods. The treaties of Utrecht expressly recognise it, 
 and it has been also incorporated into the different treaties 
 between the United States and the South American Republics, 
 with this qualification, "that it shall always be understood, 
 that the neutral property found on board such enemy's vessels 
 shall be held and considered as enemy's property, and as 
 such shall be liable to detention and confiscation, except such 
 property as was put on board such vessel before the declara- 
 tion of war, or even afterwards, if it were done without the 
 knowledge of it ; but the contracting parties agree that two 
 months having elapsed after the declaration, their citizens 
 shall not plead ignorance thereof" (A;). 
 
 This controversy has now been brought to a close as regards all mari- 475 a. 
 time countries but the United States. The Declaration of Paris, 1856, to The De - 
 which all except the United States have acceded, provides as follows : j>JJ?f OT f 
 
 Art. 2. The neutral flag covers enemy's goods, with the exception of 
 contraband of war. 
 
 Art. 3. Neutral goods, with the exception of contraband of war, are not 
 liable to capture under enemy's flag (I). 
 
 This Declaration is a great step in favour of neutrals, and curtails the 
 rights of belligerents. But it does not entirely free neutral commerce 
 from the effects of war. The belligerent right of search may still be 
 exercised, both for the purpose of ascertaining the true character of a 
 ship sailing under a neutral flag, and to discover whether she carries 
 any contraband. It has been already said that the United States are not 
 a party to this Declaration, and are therefore not bound by it. Never- 
 theless during the civil war, these two rules were observed by both 
 parties. 
 
 The general freedom of neutral commerce with the respec- 476. 
 
 tive belligerent powers is subject to certain exceptions, ^and^f 
 
 Among these is the trade with the enemy in certain articles war. 
 called contraband of war. The almost unanimous authority 
 
 (?) The Mariana, 5 C. Rob. 28. 
 
 (k) Treaty of 1828, between the United States and Columbia, art. 13. By 
 the treaty of 1831, between the United States and Mexico; by that of 1834, 
 with Chili, art. 13, the term of four months is established for the same pur- 
 pose, and by that of 1842, with Equador, art. 16, the term of six mouths. 
 
 (I) [Hertslet, Map of Europe, vol. ii. p. 1283.]
 
 558 RIGHTS OF WAR AS TO NEUTRALS. 
 
 of elementary writers, of prize ordinances, and of treaties, 
 agrees to enumerate among these all warlike instruments, or 
 materials by their own nature fit to be used in war. Beyond 
 these, there is some difficulty in reconciling the conflicting 
 authorities derived from the opinions of public jurists, the 
 fluctuating usage among nations, and the text of various 
 conventions designed to give to that usage the fixed form of 
 positive law. 
 
 477. Grrotius, in considering this subject, makes a distinction 
 
 tforTdf Ca ~ between those things which are useful only for the purposes 
 
 goods as of war, those which are not so, and those which are sus- 
 
 LyVrotius. ceptible of indiscriminate use in war and in peace. The 
 
 first, he agrees with all other text writers in prohibiting 
 
 neutrals from carrying to the enemy, as well as in permitting 
 
 the second to be so carried ; the third class, such as money, 
 
 provisions, ships, and naval stores, he sometimes prohibits, 
 
 and at others permits, according to the existing circumstances 
 
 of the war (m). 
 
 478. Vattel makes somewhat of a similar distinction, though he 
 
 Position of i nc l u des timber and naval stores among those articles which 
 
 are particularly useful for the purposes of war, and are 
 
 always liable to capture as contraband ; and considers pro- 
 
 (m) "Se.d et quaestio incidere solet quid liceat in eos qui hostes non sunt, 
 aut dici noluut, sed hostibus res aliquas subministrant. Nam et olim et nuper 
 de ea re acriter certatum scimus, cum alii belli rigorem, alii commerciorum 
 libertatem defenderent. 
 
 " Primum distinguendum inter res ipsas. Sunt enim qute in bello tantum 
 usum habent, ut arma: sunt quae in bello nullum habent usum, ut quae vo- 
 luptati inserviunt : sunt quae in bello et extra bellum usum habent, ut pecu- 
 niae, commeatus, naves, et quae navibus adsunt. In primo genere verum est 
 dictum Amalasuintliae ad Justinianum, in hostium esse partibus qui ad bellum 
 necessaria hosti administrat. Secundum genus querelam non habet. 
 . . In tertio illo genere usus ancipitis distlnguendus erit belli status. Nam 
 si tueri me non possum nisi quae mittuntur intercipiam, necessitas, ut alibi 
 exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat. 
 Quod si juris mei exsecutionem rerum subvectio impedierit, idque scire po- 
 tuerit qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et jam 
 deditio aut pax exspectabatur, tenebitur tile mini de dam no culpa dato, ut 
 qui debitorem carceri exemit, aut fugam ejus in meam fraudem instruxit : et 
 ad damni dati modum res quoque ejus capi, et dominium earum debiti con- 
 sequendi causa quaeri poterit. Si damnum nondum dederit sed dare voluerit, 
 
 Cerit rerum retentione eum cogere ut de futuro caveat obsidibus, pignori- 
 , aut alio modo. Quod si praeterea evidentissima sit hostis mei in me in- 
 justitia, et ille eum in bello iniquissimo confirmet, jam non tantum civiliter 
 tenebitur de damno, sed et criminaliter, ut is qui judici imminent! reum 
 manifestum eximit : atque eo nomine licebit in eum statuere quod delicto 
 convenit, secundum ea quse de pcenis diximus, quare intra eum modum etiam 
 spoliari poterit." Grotius, de Jur. Bel. ac Fac. lib. iii. cap. 1, v. 1, 2, 3.
 
 RIGHTS OF WAR AS TO NEUTRALS. 559 
 
 visions as such only under certain circumstances, " when 
 there are hopes of reducing the enemy by famine " (ri). 
 
 Bynkershoek strenuously contends against admitting into A 47 ?' 
 the list of contraband articles those things which are of shoek. 
 promiscuous use in peace and in war. He considers the 
 limitation assigned by Grotius to the right of intercepting 
 them, confining it to the case of necessity, and under the 
 obligation of restitution or indemnification, as insufficient to 
 justify the exercise of the right itself. He concludes that 
 the materials out of which contraband articles may be formed, 
 are not themselves contraband ; because if all the materials 
 may be prohibited, out of which something may be fabricated 
 that is fit for war, the catalogue of contraband goods will 
 be almost interminable, since there is hardly any kind of 
 material out of which something, at least, fit for war may 
 not be fabricated. The interdiction of so many articles would 
 amount to a total interdiction of commerce, and might as 
 well be so expressed. He qualifies this general position by 
 stating, that it may sometimes happen that materials for 
 building ships are prohibited, "if the enemy is in great need 
 of them, and cannot well carry on the war without them." 
 On this ground, he justifies the edict of the States- General 
 of 1657 against the Portuguese, and that of 1652 against the 
 English, as exceptions to the general rule that materials for 
 ship-building are not contraband. He also states that " pro- 
 visions are often excepted" from the general freedom of 
 neutral commerce " when the enemies are besieged by our 
 friends, or are otherwise pressed by famine " (o). 
 
 (n) Vattel, Droit des Gens, liv. iii. ch. 7, 112. 
 
 (0) "Grotius, in eo argumento occupatus, distinguit inter res, quse in bello 
 nsum habent, et qua nullum habent, et quse promiscui usus sunt, tarn in 
 bello, quam extra bellum. Primum genus non hostes hostibus nostris adve- 
 here prohibet, secundum permittit, tertium nunc prohibet, nunc permittit. 
 Si sequamur, qua capite prcrcedenti disputata sunt, de primo et secundo genere 
 non est, quod magnopere laboremus. In tertio genere distinguit Grotius, et 
 permittit res promiscui usus intercipere, eed in casu necessitatis, si aliter me 
 ineaque tueri non possim, et quidem sub onere restitutionis. Verum, ut alia 
 prseteream, quis arbiter erit ejus necessitatis, nam facillimum est earn prae- 
 texere? an ipse ego, qui intercept? Sic, puto, ei sedet, sed in causa me4 me 
 sedere j udicem omnes leges omniaque jura prohibent, nisi quod usus, Tyran- 
 norum omnium princeps, admittat, ubi feedera inter Principes explicanda 
 sunt. Nee etiam potui animadvertere, mores Gentium hanc Grotii distinc- 
 tionem probasse ; magis probarunt, quod deinde ait, neque obsesais licere res 
 promiscui usus advehere, sic enim alteri prodessam in necem alterius, ut latins 
 intelliges ex Capite seq. Quod autem ipse ille Grotius tandem addit, dis- 
 tingueudum esse inter belli justitiam et injustitiam, ad Feederatos, certo casu
 
 560 RIGHTS OF WAR AS TO NEUTRALS. 
 
 Valin and Pothier both concur in declaring that provisions 
 (munitions de louche) are not contraband by the prize law of 
 France, or the common law of nations, unless in the single 
 case where they are destined to a besieged or blockaded 
 place (p). 
 
 480. Valin, in his commentary upon the marine ordinance of 
 Naval Louis XIV., by which only munitions of war were declared 
 far contra- to be contraband, says : "In the war of 1700, pitch and tar 
 were comprehended in the list of contraband, because the 
 enemy treated them as such, except when found on board 
 Swedish ships, these articles being of the growth and pro- 
 duce of their country. In the treaty of commerce concluded 
 with the King of Denmark, by France, the 23rd of August, 
 
 pertinere posse, sed ad eos, qui, neutrarum partium sunt, nunquam pertinere 
 Capitc proceed, mihi visus sum probasse. 
 
 . . . . "Ex his fere intelligo, contrabanda dici, quae uti sunt, belloapta 
 esse possunt, nee quicquam interesse, an et extra bellum usum praebeant Pau- 
 cissima sunt belli instrumenta, quse non et extra bellum prsebeant usum sui. 
 F.nses gestamus ornamenti causa, gladiis auimadvertimus in facinorosos, et 
 ipso pulvere bellico utimur pro oblectamento, et ad testandam publice Iseti- 
 tiain, nee tamen dubitarnus, quin ea veniant nomine rwv contrabandti Waren. 
 l)e his, qui promiscui usus sunt, nullus disputandi esset finis, et nullus quo- 
 que, si de necessitate sequimur Grotii sententiam, et varias, quas adjieit, dis- 
 tinctiones. Excute pacta Gentium, quae diximus, excute et alia quag alibi 
 exstant, et reperies, omnia ilia appellari contrabanda, qiue, uti hostibus sug- 
 geruntur, bellis gerendis inserviunt, sive instrumenta bellica sint, sive materia 
 per se bello apta: nam quod Ordines Generales 6 Maj. 1667, contra Suecos 
 decreverunt, etiam materiam, bello non aptam, sed quae facile bello aptari 
 possit, pro contrabanda esse habendam, singularem rationem habebat, ex jure 
 nempe retorsionis, ut ipsi Ordines in eo decreto significant. 
 
 "Atque ante judicabus, an ipsa materia prohibitarum quoque sit prohibita? 
 Et in earn sententiam. si quid tamen definiat, proclivior esse videtur Zocchius, 
 de Jure Feciali, Part II. sect. vii. Q. 8. Ego non essem, quia ratio et ex- 
 empla me moveant in contrarium. Si omnem materiam prohibeas, ex qua 
 quid bello aptari possit, ingens esset catalogus rerum prohibitarum, quia 
 nulla fere materia est, ex qua non saltern aliqnid, bello aptum, facile fabrice- 
 mus. Hac interdicta, tantum non omni commercio interdicimus, quod valde 
 esset inutile. Et 4, Pacti 1 Dec., 1674, inter Carolum II., Anglee Reg. et 
 Ordines Generales ; et 4, Pacti 26 Nov., 1675, inter Regem Suecorum et 
 Ordines Generales ; et 16, Pacti 12 Oct., 1679, inter eosdem, amicos hostibus 
 quibis arma non licet, permittunt advehere ferrum, ses, metallum, materiam 
 navium, omnia denique quae ad usum belli parata non sunt. Quandoque 
 tamen accidit, ut et navium materia prohibeatur, si hostis ea quam maxime 
 indigeat, et absque ea commode bellum gerere haud possit. Quum Ordines 
 Generales, in 2, edicti contra Lysitanos, 31 Dec., 1657, iis, quse communi 
 Populorum usu contrabanda censentur, Lysitanos juvari vetuissent, specialiter 
 addunt in 3, ejusdem edicti, quia nihil nisi mari a Lysitanis metuebant, ne 
 quis etiam navium materiam iis advehere vellet, palam sic navium materia a 
 contrabandis distincta sed ob specialem rationem addita. Ob eandem causam 
 navium materia conjungiturcum instrumentis belli in 2, edicti contra Anglos, 
 Dec., 1652, et in edicto Ordinum Generalium contra Francos, 9 Mart., 1689. 
 Sed sunt hae exceptiones, quse regulam cpnfirmant." Bynkershoek, Quaest. 
 Jnr. Pub. lib. i. cap. 10. 
 
 (p) Valin, Comment, sur TOrdon. liv. iii. tit. 9. Des Prises, art. 11. 
 Pothier, de Propriete, No. 104.
 
 RIGHTS OF WAR AS TO NEUTRALS. 561 
 
 1742, pitch and tar were also declared contraband, together 
 with resin, sail-cloth, hemp and cordage, masts, and ship- 
 timber. Thus, as to this matter there is no fault to be found 
 with the conduct of the English, except where it contravenes 
 particular treaties ; for in law these things are now contra- 
 band, and have been so since the beginning of the present 
 century, which was not the case formerly, as it appears by 
 ancient treaties, and particularly that of St. Germain, con- 
 cluded with England in 1677 ; the fourth article of which 
 expressly provides that the trade in all these articles shall 
 remain free, as well as in everything necessary to human 
 nourishment, with the exception of places besieged or 
 blockaded " (q). 
 
 In the famous case of the Swedish convoy, determined in 481. 
 the English Court of Admiralty, in 1799, Sir W. Scott (Lord ;fej nt 
 Stowell) states, "that tar, pitch, and hemp, going to the Stoweii as 
 enemy's use, are liable to be seized as contraband in their own s t OT es.' 
 nature, cannot, I conceive, be doubted under the modern law 
 of nations ; though formerly, when the hostilities of Europe 
 were less naval than they have since .become, they were of a 
 disputable nature, and perhaps continued so at the time of 
 making that treaty," (that is, the treaty of 1661, between 
 Great Britain and Sweden, which was still in force when he 
 was pronouncing this judgment,) "or at least at the time of 
 making that treaty which is the basis of it, I mean the treaty 
 in which Whitlock was employed in 1656 ; for I conceive that 
 Valin expresses the truth of this matter when he says : ' De 
 droit ces choses,' (speaking of naval stores,) ' sont de contra- 
 baude aujourd'hui, et depuis le commencement de ce siecle, ce 
 qui n'etoit pas autrefois neanmoins ; ' and Vattel, the best 
 recent writer upon these matters, explicitly admits amongst 
 positive contraband, ' les bois, et tout ce qui sort a la con- 
 struction et a 1'armement devaisseaux de guerre.' Upon this 
 principle was founded the modern explanatory article of the 
 Danish treaty, entered into in 1780, on the part of Great 
 Britain by a noble lord (Mansfield) then Secretary of State, 
 whose attention had been peculiarly turned to subjects of this 
 nature. I am, therefore, of opinion, that, although it might 
 be shown that the nature of these commodities had been sub- 
 
 (q) Valin, Comm. sur. 1'Ordon. liv. iii. tit. 9. DCS Prises, art. 11. 
 
 o o
 
 562 EIGHTS OF WAR AS TO NEUTRALS. 
 
 ject to some controversy in the time of Whitlock, when the 
 fundamental treaty was constructed, and therefore a discreet 
 silence concerning them was observed in the composition of 
 that treaty, and of the latter treaty derived from it, yet that 
 the exposition which the later judgment and practice of Europe 
 had given upon this subject would, in some degree, affect and 
 supply what the treaties had been content to leave on that 
 indefinite and disputable footing, on which the notions then 
 more generally prevailing in Europe had placed it " (r). 
 482. It seems difficult to read the treaties of 1656 and 1661, 
 oiTtlSTde- between Great Britain and Sweden, as fairly admitting the 
 cision. interpretation placed upon them in the above cited judgment. 
 These treaties, together with those subsequently concluded 
 between the same powers in 1664 and 1665, all enumerate 
 coined money, provisions, and munitions of war, as contraband 
 between the contracting parties ; and the discreet silence 
 referred to by Lord Stowell is sufficiently supplied by the 
 treaties of 1664 and 1665, which expressly declared, that 
 " where one of the parties shall find itself at war, commerce and 
 navigation shall be free for the subjects of that power which 
 shall not have taken any part in it with the enemies of the 
 other ; and that they shall, consequently, be at liberty to carry 
 to them directly all the articles which are not specially ex- 
 cepted by the llth article of the treaty concluded at London 
 in 1661, nor by virtue of this same article expressly declared 
 prohibited or contraband, or which are not enemy's property." 
 The following article is still more explicit : "And to the end 
 that it may be known to all those who shall read these pre- 
 sents, what are the goods especially excepted and prohibited, 
 or regarded as contraband, it has appeared fit to enumerate 
 them here according to the aforesaid llth article of the Treaty 
 of London. These goods specially designated are the follow- 
 ing," &c. Here follows the enumeration, as in the llth 
 article, which makes no mention of naval stores (s). 
 483. This view seems to be confirmed by the opinion given, in 
 
 SirT Jeix 1674) by Sir Leoline Jenkms > t King Charles II., in the case 
 kins. of a cargo of naval stores, the produce of Sweden, belonging 
 
 (>) The Maria, 1 C. Rob. 372. 
 
 (s) Schlogel, Examen de la Sentence prononcee par le tribunal d'Amiraut 
 Anglaise, le 11 Juin, 1799, dans 1'affaire du convoi Sue'dois, p. 125.
 
 RIGHTS OF WAR AS TO NEUTRALS. 563 
 
 to an English subject, taken on board a Swedish vessel, and 
 carried into Ostend by a Spanish privateer. " There is not 
 any pretence to make the pitch and tar belonging to your 
 Majesty's subjects to be contraband ; these commodities not 
 being enumerated in the 24th article of the treaty made 
 between your Majesty and the crown of Spain, in the year 1667, 
 are consequently declared not to be contraband in the article 
 next following. The single objection that seems to lie against 
 the petitioner in this case is, that this tar and pitch is found 
 laden, not in an English, but a Swedish bottom, as by the 
 proofs and documents on board it doth appear ; and, conse- 
 quently, that the benefit of those articles in the Spanish 
 Treaty cannot be claimed here, since they are in favour of our 
 trade in those commodities that shall be found laden in our 
 own, not in foreign bottoms. But it is not probable that 
 Sweden hath suffered or allowed, in any treaty of theirs with 
 Spain, that their own native commodities, pitch and tar, 
 should be reputed contraband. These goods, therefore, if 
 they be not made unfree by being found in an unfree bottom, 
 cannot be judged by any other law than by the general law of 
 nations ; and then I am humbly of opinion, that nothing ought 
 to be judged contraband by that law in this case, except it be 
 in the case of beseiged places, or of a general notification 
 made by Spain to all the world, that they will condemn all the 
 pitch and tar they meet with. So that, upon the whole, your 
 Majesty's gracious intercession for, and protection to the 
 petitioner in his claim, will be founded, not upon the equity 
 and the true meaning of your Majesty's treaty with Spain, but 
 upon the general law and practice of all nations " (t). 
 
 By the treaty of navigation and commerce of Utrecht, 484. 
 between Great Britain and France, renewed and confirmed by p" e ^ 
 the Treaty of Aix-la-Chapelle, in 1748, by the Treaty of Paris, treaties 
 in 1763, by that of Versailles, in 1783, and by the commercial stores, 
 treaty between France and Great Britain, of 1786, the list of 
 contraband is strictly confined to munitions of war ; and naval 
 stores, provisions, and all other goods which have not been 
 worked into the form of any instrument or furniture for war- 
 like use, by land or by sea, are expressly excluded from this list. 
 
 The subject of the contraband character of naval stores con- 488. 
 
 (t.) Life and Correspondence of Sir L. Jenkins, vol. ii. p. 751. 
 
 o o 2
 
 564- RIGHTS OF WAR AS TO NEUTRALS. 
 
 Baltic 16 tinned a vexed question between Great Britain and the Baltic 
 powers. powers, throughout the whole of the eighteenth century. 
 Various relaxations of the extreme belligerent pretensions on 
 this subject had been conceded in favour of the commerce, in 
 articles the peculiar growth and productions of these States, 
 either by permitting them to be freely carried to the enemy's 
 ports, or by mitigating the original penalty of confiscation, on 
 their seizure, to the milder right of preventing the goods being 
 carried to the enemy, and applying them to the use of the 
 belligerent, on making a pecuniary compensation to the neutral 
 owner. This controversy was at last terminated by the con- 
 vention between Great Britain and Russia, concluded in 1801, 
 to which Denmark and Sweden subsequently acceded. By the 
 3rd article of this treaty it is declared, " That, in order to 
 avoid all ambiguity in what ought to be considered as contra- 
 band of war, his Imperial Majesty of all the Russias and his 
 Britannic Majesty declare, conformably to the llth article 
 of the treaty of commerce, concluded between the two crowns 
 on the 10th (21st) February, 1797, that they acknowledge as 
 such only the following articles, namely, cannons, mortars, 
 fire-arms, pistols, bombs, grenades, balls, bullets, firelocks, 
 flints, matches, powder, saltpetre, sulphur, helmets, pikes, 
 swords, sword-belts, saddles and bridles ; excepting, however, 
 the quantity of the said articles which may be necessary for 
 the defence of the ship and of those who compose the crew ; 
 and all other articles whatever, not enumerated here, shall not 
 be considered warlike and naval ammunition, nor be subject to 
 confiscation, and of course shall pass freely, without being sub- 
 ject to the smallest difficulty, unless they be considered as 
 enemy's property in the above settled sense. It is also agreed, 
 that what is stipulated in the present article shall not be to 
 the prejudice of the particular stipulations of one or the 
 other crown with other powers, by which objects of a similar 
 kind should be reserved, provided, or permitted." 
 486. The object of this convention is declared, in its preamble, 
 isoh 7 to he tne settlement of the differences between the contracting 
 parties, which had grown out of the armed neutrality, by "an 
 invariable determination of their principles upon the rights of 
 neutrality, in their application to their respective monarchies ; " 
 which object was accomplished by the northern powers yield-
 
 RIGHTS OF WAR AS TO NEUTRALS. 565 
 
 ing the rule of free ships free goods, whilst Great Britain con- 
 ceded the points asserted by them as to contraband, blockades, 
 and the coasting and colonial trade. 
 
 The 8th article of the treaty also declared, that " the prin- 
 ciples and measures adopted by the present act, shall be alike 
 applicable to all the maritime wars in which one of the two 
 powers may be engaged, whilst the other remains neutral. 
 These stipulations shall consequently be regarded as perma- 
 nent, and shall serve for a constant rule to the contracting 
 powers, in matters of commerce and navigation." 
 
 The list of contraband, contained in the convention between 487 - 
 Great Britain and Russia, to which Sweden acceded, differed, Swedish 
 in some respects, from that contained in the llth article of jg Ca q y of 
 the Treaty of 1661, between Great Britain and Sweden. In 
 order to prevent a recurrence of the disputes which had arisen 
 relative to that article, a convention was concluded at London, 
 between these two powers, on the 25th of July, 1803, by which 
 the list of contraband, contained in the convention between 
 Great Britain and Russia, was augmented, with the addition 
 of the articles of coined money, horses, and the necessary 
 equipments of cavalry, ships of war, and all manufactured 
 articles, serving immediately for their equipment, all which 
 articles were subjected to confiscation. It was further stipu- 
 lated, that all naval stores, the produce of either country, 
 should be subject to the right of pre-emption by the belli- 
 gerent party, upon condition of paying an indemnity of ten 
 per centum upon the invoice price or current value, with de- 
 murrage and expenses. If bound to a neutral port, and 
 detained upon suspicion of being bound to an enemy's port, 
 the vessels detained were to receive an indemnity, unless the 
 belligerent government chose to exercise the right of pre- 
 emption ; in which case, the owners were to be entitled to . 
 receive the price which the goods would have sold for at their 
 destined port, with demurrage and expenses (u). 
 
 The doctrine of the British Prize Courts, as to provisions 488> 
 and naval stores becoming contraband, independently of and naval 
 special treaty stipulations, is laid down very fully by Sir W. ^erfco 
 Scott, in the case of The Jonge Margaretlia. He there states traband in- 
 that the catalogue of contraband had varied very much, and 
 
 (u) Martens, Rccueil, tome vii. pp. 150 281.
 
 566 RIGHTS OF WAR AS TO NEUTRALS. 
 
 sometimes in such a manner as to make it difficult to assign 
 the reason of the variations, owing to particular circumstances, 
 the history of which had 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 a person of great knowledge and expe- 
 rience in the English admiralty, that, by its practice, corn, 
 wine, and oil, were liable to be deemed contraband. In much 
 later times, many sorts of provisions, such as butter, salted 
 fish, and rice, have been condemned as contraband. The 
 modern established rule was, that generally they are not con- 
 traband, but may become so under circumstances arising out 
 of the peculiar situation of the war, or the condition of the 
 parties engaged in it. Among the causes which tend to pre- 
 vent provisions from being treated as contraband, one is, that 
 they are of the growth of the country which exports them. 
 Another circumstance, to which some indulgence by the 
 practice of nations is shown, is when the articles are in their 
 native and unmanufactured state. Thus iron is treated with 
 indulgence, though anchors and other instruments fabricated 
 out of it are directly contraband. Hemp is more favourably 
 considered than cordage ; and wheat is not considered so 
 noxious a commodity as any of the final preparations of it for 
 human use. But the most important distinction is, whether 
 the articles are destined for the ordinary uses of life, or for 
 military use. The nature and quality of the port to which 
 the articles were going, is a test of the matter of fact to which 
 the distinction is to be applied. If the port is a general com- 
 mercial port, it shall be understood that the articles were 
 going for civil use, although occasionally a frigate or other 
 ships of war may be constructed in that port. On the con- 
 trary, if the great predominant character of a port be that of 
 a port of naval equipment, it shall be intended that the 
 articles were going for military use, although merchant ships 
 resort to the same place, and although it is possible that the 
 articles might have been applied to civil consumption ; for it 
 being impossible to ascertain the final application 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
 
 RIGHTS OF WAR AS TO NEUTRALS. 567 
 
 military port, is very much inflamed, if, at the time when the 
 articles were going, a considerable armament was notoriously 
 preparing, to which a supply of those articles would be emi- 
 nently useful" (./). 
 
 The distinction, under which articles of promiscuous use 489. 
 are considered as contraband, when destined to a port of naval pr omis- 
 equipment, appears to have been subsequently abandoned by 
 Sir VV. Scott. In the case of The Charlotte, he states that 
 " the character of the port is immaterial; since naval stores, destined to 
 if they are to be considered as contraband, are so without re- a port of 
 ference to the nature of the port, and equally, whether bound equipment, 
 to a mercantile port only, or to a port of naval military equip- 
 ment. The consequence of the supply may be nearly the same 
 in either case. If sent to a mercantile port, they may then 
 be applied to immediate use in the equipment of privateers, 
 or they may be conveyed from the mercantile to the naval 
 port, and there become subservient to every purpose to which 
 they could have been applied if going directly to a port of 
 naval equipment " (y}. 
 
 The doctrine of the English Courts of Admiralty, as to 4 ?- 
 
 J Provisions 
 
 provisions becoming contraband under certain circumstances becoming 
 of war, was adopted by the British government in the in- JUJSSJ? 
 structions given to their cruisers on the 8th June, 1793, tain cir- 
 directing them to stop all vessels laden wholly or in part with of ln ^ ncei 
 corn, flour, or meal, bound to any port in France, and to send 
 them into a British port, to be purchased by government, or 
 to be released, on condition that the master should give se- 
 curity to dispose of his cargo in the ports of some country in 
 amity with his Britannic Majesty. This order was justified, 
 upon the ground that, by the modern law of nations, all pro- 
 visions are to be considered contraband, and, as such, liable 
 to confiscation, wherever the depriving an enemy of these 
 supplies is one of the means intended to be employed for 
 reducing him to terms. The actual situation of France (it 
 was said) was notoriously such, as to lead to the employing 
 this mode of distressing her by the joint operations of the 
 different powers engaged in the war ; and the reasoning which 
 the text-writers apply to all cases of this sort, was more ap- 
 
 (x) The .fonrjc Marc/aretlia, 1 C. Rob. 192. 
 \y) The CkadMe, 5 0. Hob. SOS.
 
 568 EIGHTS OF WAR AS TO NEUTRALS. 
 
 plicable to the present case, in which the distress resulted 
 from the unusual mode of war adopted by the enemy himself, 
 in having armed almost the whole labouring class of the 
 French nation, for the purpose of commencing and support- 
 ing hostilities against almost all European governments ; but 
 this reasoning was most of all applicable to a trade, which was 
 in a great measure carried on by the then actual rulers of 
 France, and was no longer to be regarded as a mercantile 
 speculation of individuals, but as an immediate operation of 
 the very persons who had declared war, and were then carry- 
 ing it on against Great Britain (z). 
 
 Vo*toin' f ^ reasoning was resisted by the neutral powers, Sweden, 
 the neutral Denmark, and especially the United States. The American 
 powers. government insisted, that when two nations go to war, other 
 nations, who choose to remain at peace, retain their natural 
 right to pursue their agriculture, manufactures, and other 
 ordinary vocations ; to carry the produce of their industry for 
 exchange to all countries, belligerent or neutral, as usual ; to 
 go and come freely, without injury or molestation ; in short, 
 that the war among others should be, for neutral nations, as 
 if it did not exist. The only restriction to this general free- 
 dom of commerce, which has been submitted to by nations at 
 peace, was that of not furnishing to either party implements 
 merely of war, nor any thing whatever to a place blockaded 
 by its enemy. These implements of war had been so often 
 enumerated in treaties under the name of contraband, as to 
 leave little question about them at that day. It was sufficient 
 to say that corn, flour, and meal, were not of the class of con- 
 traband, and consequently remained articles of free commerce. 
 The state of war then existing between Great Britain and 
 France furnished no legitimate right to either of these belli- 
 gerent powers to interrupt the agriculture of the United States, 
 or the peaceable exchange of their produce with all nations. 
 If any nation whatever had the right to shut against their 
 produce all the ports of the earth except her own, and those 
 of her friends, she might shut these also, and thus prevent 
 altogether the export of that produce (a). 
 
 (z) Mr. Hammond's Letter to Mr. Jefferson, 12th September, 1793. 
 Waite's State Papers, vol. i. p. 398. 
 
 (a) Mr. Jefferson's Letter to Mr. T. Pinkney, 7th September, 1793. Waite's 
 State Papers, vol. i. p. 393.
 
 RIGHTS OF WAR AS TO NEUTRALS. 569 
 
 111 the treaty subsequently concluded between Great Britain 492 - 
 and the United States, on the 19th November, 1794, it was American 
 
 stipulated, (article 18,) that under the denomination contra- 
 band should be comprised all arms and implements serving 
 for the purposes of war, "and also timber for ship-building, 
 tar or rosin, copper in sheets, sails, hemp, and cordage, and 
 generally whatever may serve directly to the equipment of 
 vessels, un wrought iron and fir planks only excepted." The 
 article then goes on to provide, that "whereas the difficulty 
 of agreeing on the precise cases, in which alone provisions and 
 other articles, not generally contraband, may be regarded as 
 such, renders it expedient to provide against the inconveniences 
 and misunderstandings which might thence arise ; it is further 
 agreed, that whenever any such articles, so becoming contra- 
 band according to the existing law of nations, shall for that 
 reason be seized, the same shall not be confiscated ; but the 
 owners thereof shall 'be speedily and completely indemnified; 
 and the captors, or, in their default, the government under 
 whose authority they act, shall pay to the masters or owners 
 of such vessels the full value of all such articles, with a rea- 
 sonable mercantile profit thereon, together with the freight, 
 and also the demurrage incident to such detention." 
 
 The instructions of June, 1793, had been revoked previous 493. 
 to the signature of this treaty ; but, before its ratification, the 
 
 British government issued, in April, 1795, an Order in f April, 
 Council, instructing its cruisers to stop and detain all vessels, 
 laden wholly or in part with corn, flour, meal, and other 
 articles of provisions, and bound to any port in France, and to 
 send them to such ports as might be most convenient, in 
 order that such corn, &c., might be purchased on behalf of 
 government. 
 
 This last order was subsequently revoked, and the question 494. 
 of its legality became the subject of discussion before the thuVrder 
 mixed commission, constituted under the treaty to decide upon questioned. 
 the claims of American citizens, by reason of irregular or 
 illegal captures and condemnations of their vessels and other 
 property, under the authority of the British government. The 
 Order in Council was justified upon two grounds : 
 
 1. That it was made when there was a prospect of reducing 
 the enemy to terms by famine, and that, in such a state of
 
 570 RIGHTS OF WAR AS TO NEUTRALS. 
 
 things, provisions bound to the ports of the enemy became so 
 far contraband, as to justify Great Britain in seizing them 
 upon the terms of paying the invoice price, with a reasonable 
 mercantile profit thereon, together with freight and demurrage. 
 
 2. That the order was justified by necessity; the British 
 nation being at that time threatened with a scarcity of the 
 articles directed to be seized. 
 
 The first of these positions was rested not only upon the 
 general law of nations, but upon the above-quoted article of 
 the treaty between Great Britain and America. 
 
 495, The evidence adduced of this supposed law of nations was 
 
 Vattdu on P rinc iP allv tne following passage of Vattel : " Commodities 
 
 it. particularly useful in war, and the carrying of which to an 
 
 enemy is prohibited, are called contraband goods. Such are 
 
 arms, ammunition, timber for ship-building, every kind of 
 
 naval stores, horses, and even provisions, in certain junctures, 
 
 when we have hopes of reducing the enemy by famine " (b). 
 
 In answer to this authority, it was stated that it might be 
 sufficient to say that it was, at best, equivocal and indefinite, 
 as it did not designate what the junctures are in which it 
 might be held, that " there are hopes of reducing the enemy 
 by famine ; " that it was entirely consistent with it to affirm, 
 that these hopes must be built upon an obvious and palpable 
 chance of effecting the enemy's reduction by this obnoxious 
 mode of warfare, and that no such chance is by the law of 
 nations admitted to exist, except in certain defined cases ; 
 such as the actual siege, blockade, or investment of particular 
 places. This answer would be rendered still more satisfactory, 
 by comparing the above-quoted passage with the more precise 
 opinions of other respectable writers on international law, by 
 which might be discovered that which Vattel does not profess 
 to explain the combination of circumstances to which his 
 principle is applicable, or is intended to be applied. 
 
 But there was no necessity for relying wholly on this answer, 
 since Vattel would himself furnish a pretty accurate com- 
 mentary on the vague text which he had given. The only 
 instance put by this writer, which came within the range of 
 his general principle, was that which he, as well as Grotius, 
 had taken from Plutarch. "Demetrius," as Grotius expressed 
 (b) Droit des Gens, liv. iii. ch. 7, 112.
 
 RIGHTS OF WAR AS TO NEUTRALS. 571 
 
 it, "held Attica by the sword. He had taken the town of 
 Khamnus, designing a famine in Athens, and had almost ac- 
 complished his design, when a vessel laden with provisions 
 attempted to relieve the city." Vattel speaks of this as of a 
 case in which provisions were contraband (section 17), and 
 although he did not make use of this example for the declared 
 purpose of rendering more specific the passage above cited, yet, 
 as he mentions none other to which it can relate, it is strong 
 evidence to show that he d'd not mean to carry the doctrine 
 of special contraband farther than that example would warrant. 
 
 It was also to be observed that, in section 113, he states 
 expressly that all contraband goods (including, of course, those 
 becoming so by reason of the junctures of which he had been 
 speaking at the end of section 112) are to be confiscated. But 
 nobody pretended that Great Britain could rightfully have 
 confiscated the cargoes taken under the order of 1795 ; and 
 yet if the seizures made under that order fell within the 
 opinion expressed by Vattel, the confiscation of the cargoes 
 seized would have been justifiable. It had long been settled, 
 that all contraband goods are subject to forfeiture by the law 
 of nations, whether they are so in their own nature, or become 
 so by existing circumstances ; and even in early times, when 
 this rule was not so well established, we find that those 
 nations who sought an exemption from forfeiture, never 
 claimed it upon grounds peculiar to any description of con- 
 traband, but upon general reasons, embracing all cases of 
 contraband whatsoever. As it was admitted, then, that the 
 cargoes in question were not subject to forfeiture as contra- 
 band, it was manifest that the juncture which gave birth to 
 the Order in Council could not have been such a one as Vattel 
 had in view ; or, in other words, that the cargoes were not 
 become contraband at all within the true meaning of his prin- 
 ciple, or within any principle known to the general law of 
 nations. 
 
 The authority of Grotius was also adduced as countenancing 496. 
 this position. Opinion 
 
 ~ .-,..-, . of Urotius. 
 
 Grotius divides commodities into three classes, the first of 
 which he declares to be plainly contraband ; the second plainly 
 not so ; and as to the third, he says : " In tertio illo genere 
 usus ancipitis, distinguendus erit belli status. Nam si tueri
 
 572 RIGHTS OF WAR AS TO NEUTRALS. 
 
 me non possum nisi quse mittuntur intercipiam, necessitas, ut 
 alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi 
 causa alia accedat." This " causa alia " is afterwards ex- 
 plained by an example, "ut si oppidum obsessum tenebam, si 
 portus clauses, et jam deditio aut pax expectabatur." 
 
 This opinion of Grotius, as to the third class of goods, did 
 not appear to proceed at all upon the notion of contraband, 
 but simply upon that of a pure necessity on the part of the 
 capturing belligerent. He does not consider the right of 
 seizure as a means of effecting the reduction of the enemy, 
 but as the indispensable means of our own defence. He does 
 not state the seizure upon any supposed illegal conduct in the 
 neutral, in attempting to carry articles of the third class 
 (among which provisions are included), not bound to a port 
 besieged or blockaded, to be lawful, when made with the mere 
 view of annoying or reducing the enemy, but solely when 
 made with a view to our own preservation or defence, under 
 the pressure of that imperious and unequivocal necessity, 
 which breaks down the distinctions of property, and, upon 
 certain conditions, revives the original right of using things 
 as if they were in common. 
 
 This necessity he explains at large in his second book, 
 (cap. ii. sec. 6,) and, in the above-recited passage, he refers 
 expressly to that explanation. In sections 7, 8, and 9, he 
 lays down the conditions annexed to this right of necessity : 
 as, 1. It shall not be exercised until all other possible means 
 have been used ; 2. Nor if the right owner is under a like 
 necessity; and, 3. Restitution shall be made as soon as 
 practicable. 
 
 In his third book, (cap. xvii. sec. 1,) recapitulating what he 
 had before said on this subject, Grotius further explains this 
 doctrine of necessity, and most explicitly, confirms the con- 
 struction placed upon the above-cited texts. And Rutherforth, 
 in commenting on Grotius, (lib. iii. cap. 1, sect. 5,) also ex- 
 plains what he there says of the right of seizing provisions 
 upon the ground of necessity ; and supposes his meaning to 
 be that the seizure would not be justifiable in that view, 
 "unless the exigency of affairs is such, that we cannot pos- 
 sibly do without them " (c). 
 
 (c) Rutherforth' s Inst. vol. ii. b. ii. ch. 9, 19.
 
 RIGHTS OF WAR AS TO NEUTRALS. 573 
 
 Bynkershoek also confines the right of seizing goods, not 
 
 Q 
 
 generally contraband of war, (and provisions among the rest,) Bynker- 
 to the above-mentioned cases (</). 
 
 It appeared, then, that so far as the authority of text 
 writers could influence the question, the Order in Council of 
 1795 could not be rested upon any just notion of contraband : 
 nor could it, in that view, be justified by the reason of the 
 thing or the approved usage of nations. 
 
 If the mere hope, however apparently well founded, of _ 
 
 J General 
 
 annoying or reducing an enemy, by intercepting the commerce principles. 
 of neutrals in articles of provision (which, in themselves, are 
 no more contraband than ordinary merchandise), to ports not 
 besieged or blockaded, would authorize that interruption, it 
 would follow that a belligerent might at any time prevent, 
 without a siege or blockade, all trade whatsoever with its 
 enemy ; since there is at all times reason to believe that a 
 nation, having little or no shipping of its own, might be so 
 materially distressed by preventing all other nations from 
 trading with it, that such prevention might be a powerful 
 instrument in bringing it to terms. The principle is so wide 
 in its nature, that it is, in this respect, incapable of any 
 boundary. There is no solid distinction, in this view of the 
 principle, between provisions and a thousand other articles. 
 Men must be clothed as well as fed ; and even the privation 
 of the conveniences of life is severely felt by those to whom 
 habit has rendered them necessary. A nation, in proportion 
 as it can be debarred its accustomed commercial intercourse 
 with other States, must be enfeebled and impoverished; and 
 if it is allowable to a belligerent to violate the freedom of 
 neutral commerce, in respect to any one article not contraband 
 in se, upon the expectation of annoying the enemy, or bringing 
 him to terms by a seizure of that article, and preventing it 
 reaching his ports, why not, upon the same expectation of 
 annoyance, cut off as far as possible by captures, all communi- 
 cation with the enemy, and thus strike at once effectually at 
 his power and resources ? 
 
 As to the 18th article of the Treaty of 1794, between the 499. 
 United States and Great Britain, it manifestly intended to Anslo .~ 
 
 *> American 
 
 leave the question where it found it : the two contracting treaty of 
 
 3 1794'. 
 (d) Bynkerslioek, Qusest. Jur. Pub. lib. i. cap. 9.
 
 574 RIGHTS OF WAR AS TO NEUTRALS. 
 
 parties, not being able to agree upon a definition of the cases 
 in which provisions and other articles, not generally contra- 
 band, might be regarded as such (the American government 
 insisting on confining it to articles destined to a place actually 
 besieged, blockaded, or invested, whilst the British govern- 
 ment maintained that it ought to be extended to all cases 
 where there is an expectation of reducing the enemy by 
 famine), concurred in stipulating, that "whenever any such 
 articles, so becoming contraband, according to the existing luic 
 of nations, shall for that reason be seized, the same shall not 
 be confiscated," but the owners should be completely indemni- 
 fied in the manner provided for in the article. When the law 
 of nations existing at the time the case arises pronounces the 
 articles contraband, they may for that reason be seized ; when 
 otherwise, they may not be seized. Each party was thus left 
 as free as the other to decide whether the law of nations, in 
 the given case, pronounced them contraband or not, and 
 neither was obliged to be governed by the opinion of the 
 other. If one party, on a false pretext of being authorized by 
 the law of nations, made a seizure, the other was at full 
 liberty to contest it, to appeal to that law, and, if he thought 
 fit, to resort to reprisals and war. 
 
 500. As to the second ground upon which the Order in Council 
 
 Justifies*- was justified, necessity, Great Britain being, as alleged at the 
 
 necessity of time of issuing it, threatened with a scarcity of those articles 
 
 the order. ^i rec t e d to be seized, it was answered that it would not be 
 
 denied that extreme necessity might justify such a measure. 
 
 It was only important to ascertain whether that necessity then 
 
 existed, and upon what terms the right it communicated 
 
 might be carried into exercise. 
 
 Grotius, and the other text writers on the subject, con- 
 curred in stating that the necessity must be real and pressing ; 
 and that even then it does not confer a right of appropriating 
 the goods of others, until all other practicable means of relief 
 have been tried and found inadequate. It was not to be 
 doubted that there were other practicable means of averting 
 the calamity apprehended by Great Britain. The offer of an 
 advantageous market in the different ports of the kingdom, 
 was an obvious expedient for drawing into them the produce 
 of other nations. Merchants do not require to be forced into
 
 RIGHTS OF WAR AS TO NEUTRALS. 575 
 
 a profitable commerce ; they will send their cargoes where 
 interest invites ; and if this inducement is held out to them 
 in time, it will always produce the effect intended. But so 
 long as Great Britain offered less for the necessaries of life 
 than could have been obtained from her enemy, was it not to 
 be expected that neutral vessels should seek the ports of that 
 enemy, and pass by her own ? Could it be said that, under 
 the mere apprehension (not under the actual experience) of 
 scarcity, she was authorized to have recourse to the forcible 
 means of seizing provisions belonging to neutrals, without 
 attempting those means of supply which were consistent with 
 the rights of others, and which were not incompatable with 
 the exigency ? After this order had been issued and carried 
 into execution, the British government did what it should 
 have done before ; it offered a bounty upon the importation of 
 the articles of which it was in want. The consequence was, 
 that neutrals came with these articles, until at length the 
 market was found to be overstocked. The same arrangement, 
 had it been made at an earlier period, would have rendered 
 wholly useless the order of 1795. 
 
 Upon these grounds, a full indemnification was allowed by 501. 
 the commissioners, under the seventh article of the Treaty of res pccting 
 1794, to the owners of the vessels and cargoes seized under tlie order - 
 the Orders in Council, as well for the loss of a market as for 
 the other consequences of their detention (e). 
 
 The question as to what is, and what is not, contraband, cannot as 501 a. 
 yet Le answered with precision. No complete list of goods which are What 
 to be always deemed contraband has been drawn up, nor does it seem *^tr *" 
 likely that it ever will be. That which is contraband under certain band, 
 circumstances may not be so under others. The main point, when an 
 article is of doubtful use, is whether it was intended, or would probably 
 be applied, to military purposes. In England and America, the Court 
 before which the goods are brought, will inquire into all the circum- 
 stances of the case, such as the destination of the ship, the purposes to 
 which the goods seem intended to be applied, the character of the war, 
 and so on, and will condemn or release them upon the evidence (/). If, 
 however, there are any treaty stipulations on the subject, or if the State 
 before whose Courts the goods are brought, has issued any definite list 
 
 (e) Proceedings of the Board of Commissioners under the seventh article of 
 the Treaty of 1794. MS. Opinion of Mr. W. Pinkney, case of The Neptune. 
 
 (/) [Wheaton, by Dana, note 226. Calvo, vol. ii. 1114. Kent, by Abdy, 
 p. 359. Parl. Debates, 26th May, 1861. ]
 
 576 RIGHTS OF WAR AS TO NEUTRALS. 
 
 of contraband goods (g\ the decision will of course be regulated accord- 
 ingly. "The liability to capture," says Halleck, "can only be deter- 
 mined by the rules of international law, as interpreted and applied by the 
 tribunals of tJie belligerent State, to the operations of whose cruisers the 
 neutral merchant is exposed " (/i). 
 
 Goods The following goods have been held to be always contraband by the 
 
 always English Prize Court : arms of all kinds, and machinery for inanufac- 
 
 co^ntraband turm arms, ammunition, and materials for ammunition, including 
 in England, lead, sulphate of potash, muriate of potash, chlorate of potash, and 
 nitrate of soda ; gunpowder and its materials, saltpetre and brimstone ; 
 also guncotton ; military equipments and clothing, and military 
 stores (i). Naval stores, such as masts (&), spars, rudders, and ship 
 timber (t), hemp (m), cordage, sailcloth (,), pitch and tar (o), and copper 
 fit for sheathing vessels (p). Marine engines, and the component parts 
 thereof, including screw propellers, paddle-wheels, cylinders, cranks, 
 shafts, boilers, tubes for boilers, boiler plates, and fire-bars ; marine 
 cement, and the materials used in the manufacture of it, as blue lias and 
 portland cement ; iron in any of the following forms : anchors, rivet- 
 iron, angle-iron, round bars of from three-quarters to five-eights of an 
 inch in diameter, rivets, strips of iron, sheet plate-iron exceeding one- 
 quarter of an inch, and low-moor and bowling plates (q). 
 
 Goods The following articles have been held to be contraband when the cir- 
 
 condition- cumstances showed that they were probably intended to be applied to 
 bamUif" " vvarl ^e purposes. Provisions and liquors fit for the consumption of 
 England. army or navy (r), money, telegraphic materials such as wire, porous 
 cups, platina, sulphuric acid, and zinc (s) ; materials for the construc- 
 tion of a railway as iron bars, sleepers (t) ; hay, horses, rosin (u), 
 tallow (x), and timber (y). 
 
 The Proclamation of the President of the United States (13th June, 
 1865), removing the restrictions on trade with the Southern States, only 
 declared the following articles to be contraband : arms, ammunition, 
 all articles from which ammunition is made, and gray uniforms and 
 cloth (2). The Declaration of Paris, while permitting the seizure of 
 
 (g) [As France did in 1870. See post. ] 
 
 (h) [Halleck, ch. xxiv. 19.] 
 
 (i) [Lushington, Naval Prize Law, p. 35.] 
 
 () [The Charlotte, 5 C. Rob. 305 ; The Staadt EmWcn, 1 C. Rob. 27.] 
 
 (/) [The Tivende Brodre, 4 C. Rob. 33.] 
 
 (HI) [The Apollo, 4 ibid. 161 ; The Evert, 4 ibid. 354 ; The Gesellschaft 
 Michael, 4 ibid. 94.] 
 
 (n) [The Neptunus, 3 C. Rob. -108.] 
 
 (o) \TheJonye Tobias, 1 C. Rob. 329 ; The Twee Juffrowen, 4 ibid. 242.] 
 
 (p) [The Charlotte, 5 C. Rob. 275.] 
 
 (?) [Lushiugton, Naval Prize Law, p. 35. Field, International Code 
 (2nded.), p. 550.] 
 
 (r) [The Haabet, 2 C. Rob. 182 ; The Jonge Margarctha, 1 ibid. 191 ; The 
 Ranger, 6 ibid. 125.] 
 
 (*) [Pavl. Papers, N. America, 1863 (No. 14), p. 5.] 
 
 (t) [Field, International Code (2nd ed.), p. 550.] 
 
 (u) [The Nostra Sicjnora de Begona, 5 C. Rob. 98.] 
 
 (x) [The Neptunus, 3 C. Rob. 108.] 
 
 (y) [The Twende Brodre, 4 C. Rob. 37-] 
 (z) [Hertslet's Treaties, vol. xii. p. 946.1
 
 RIGHTS OF WAR AS TO NEUTRALS. 577 
 
 contraband, in no way defines it. The instructions to French naval 
 officers during the war with Germany in 1870-71, enumerate as contra- 
 band : cannon, small-arms, swords and bayonets, projectiles, powder, 
 saltpetre, sulphur, military accoutrements, and everything made for u^e 
 in war (a). Mr. Field, in his International Code, says, " Private pro- 
 perty of any person whomsoever, and public property of a neutral 
 nation are contraband of war, when consisting of articles manufactured 
 for and primarily used for military purposes in time of war ; and 
 actually destined for the use of the hostile nation in war, but not 
 otherwise " (6). 
 
 The subject of contraband was discussed before the Supreme Court of 
 America, in a case arising out of the shipment of contraband goods 
 from England to Matamoras during the civil war. Matamoras is situated traband 
 on the Mexican side of the Rio Grande, and was consequently a neutral goods, 
 port. The court said : " The classification of goods as contraband or not The 
 contraband has much perplexed text writers and jurists. A strictly Peterkoff. 
 accurate 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. (1) Articles manufactured 
 and primarily or ordinarily used for military purposes in time of war. 
 (2) Articles which maybe and are used for purposes of war or peace accord- 
 ing to circumstances. (3) Articles exclusively used for peaceful purposes. 
 Merchandise of the first class, destined to a belligerent country or places 
 occupied by the army or navy of a belligerent, is always contraband ; 
 merchandise of the second class is contraband only when actually destined 
 to the military or naval use of a belligerent ; while merchandise of the 
 third class is not contraband at all, though liable to seizure and condem- 
 nation for violation of blockade or siege " (c). 
 
 A point arose in this case, upon which the courts of England and 501 c. 
 America have arrived at different conclusions. Matamoras, as has been 
 said, was a Mexican and neutral port. At the time the ship was cap- of the 
 tured the United States had declared all the confederate ports blockaded, goods, 
 and a squadron cruised off the mouth of the Rio Grande to intercept the 
 trade with Galveston, a place on the opposite side of the river to Mata- 
 moras, and in Confederate territory. The question then arose whether 
 the whole river was blockaded, or whether the blockade only applied to 
 the Confederate side of it. The Supreme Court held that a blockade is 
 not to be extended by construction, and that as the United States 
 authorities had not expressly declared the whole river blockaded 
 (whether they had power to do so or not was another question), the 
 Mexican side must be considered open to the commerce of neutrals. 
 But with regard to the contraband on board the ship, the judgment 
 proceeded as follows : " Contraband merchandise is subject to a 
 different rule in respect to ulterior destination than that which ap- 
 plies to merchandise not contraband. The latter is liable to capture 
 
 (a) [See Barboux, Jurisp. du Conseil des Prises, 187071, Appendix. 
 Art. 8.] 
 
 (b) [Field, International Code, 859.] 
 
 (c) [The Peterhoff, 5 Wallace, 58.]
 
 578 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 501 d. 
 ffobbs v. 
 Henning, 
 
 501 e. 
 
 only when a violation of blockade is intended ; the former when destined 
 to the hostile country, or to the actual military or naval use of the 
 enemy, whether blockaded or not. The trade of neutrals with belli- 
 gerents in articles not contraband is absolutely free, unless interrupted 
 by blockade ; the conveyance by neutrals to belligerents of contraband 
 articles is always unlawful, and such articles may always be seized 
 during transit at sea. Hence, while articles, not contraband, might be 
 sent to Matamoras and beyond to the rebel region, where the communi- 
 cations were not interrupted by blockade, articles of a contraband 
 character destined in fact to a State in rebellion, or for the use of the 
 rebel military forces, were liable to capture though primarily destined to 
 Matamoras " (d). 
 
 On the other hand the Court of Common Pleas, in a case arising in 
 England out of the same voyage of the ship, came to the conclusion that 
 goods contraband belonging to a neutral, are not liable to seizure unless 
 in the actual prosecution of a voyage to an enemy's port. Nor is the 
 rule affected by the fact that the shipper knows they are intended ulti- 
 mately to reach an enemy's port (e). 
 
 It cannot be foreseen which of these decisions may be followed in the 
 future (/), biit it is evident that the American view materially increases 
 the rights of belligerents, and adds another to the restrictions on neutral 
 commerce during war. The case of The Commercen (g}, cited in The Peter- 
 hoff, does not decide that contraband may be captured between two 
 neutral ports with an ulterior destination for the enemy. Two wars 
 then existed, one between England and the United States, another 
 between England and France, carried on in Spain. The Commercen left 
 Cork with a cargo of wheat, destined for the British fleet, then lying in 
 a Spanish port, and she was captured by an American cruiser. The 
 cargo was rightly held to be contraband under the circumstances. But 
 it was condemned as enemy's property on its way to his fleet. , Its des- 
 tination to a neutral port was therefore not material, (h) 
 
 Some writers, overlooking the fact that a neutral has rights as well 
 
 Contraband as a belligerent, have laid down the doctrine that the exportation of 
 trade no contraband is a breach, of neutrality. This opinion has generally been 
 neutralif adopted only by those whose views of international law are derived 
 purely- from speculation. The practice of nations in no way bears out 
 such an assertion. In every war neutrals have traded in contraband, 
 but with the risk of having the goods condemned if captured by the 
 enemy (i). Few rules of international law are so certain as that a 
 neutral government cannot be made responsible as for a breach of 
 neutrality, because its subjects carry on a contraband trade. The trade 
 must, however, be confined to subjects. If carried on by the govern- 
 
 (d) [Tlie Peterho/, 5 Wallace, 59.] 
 
 (e) [I/obbs v. Henning, 17 C. B. N. S. 791.] 
 
 (/) [Mr. Field, in his International Code, 858, note, prefers the English 
 view.] 
 
 (g] [1 Wheaton, 382. See post, 507.] 
 
 (k) [The case of The Vrow-Howina, decided in France, bears npon this 
 point. Calvo, ii. 112.] 
 
 (i) [See Letters of Historicus, Contraband. Parl. Papers, 1873, N. America 
 (No. 2), p. 19.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 579 
 
 ment itself, It then will amount to a violation of neutral duties (). 
 America has always maintained the right of exporting arms to belli- 
 gerents in the way of trade (/) ; and during the civil war the Federal 
 Government purchased warlike stores from England to the value of 
 over <-2,000,000 (m). 
 
 A ship, theoretically considered, may or may not be contraband. If 501 f. 
 on its way to a belligerent port for the purpose of being sold to the Ships as 
 belligerent, it will be contraband if it is adapted, or readily adaptable, ^ T a " 
 for warlike use ; equally so, doubtless, if it be adapted for the transporta- 
 tion of troops, or even perhaps of military material. As most ships 
 may in some way be applied to such purposes, they are pretty sure to 
 lie condemned as contraband. Thus, where the captain had orders to 
 sell if he could find a good purchaser, but otherwise to seek freight, the 
 ship was condemned (ri). 
 
 The immense importance of coals and machinery in the naval opera- 501 g. 
 tions of the present day has given rise to endless discussions as to Coals and 
 whether they are contraband or not. Writers of the school of M. Haute- machmei T- 
 feuille refuse to consider such commodities as contraband (o), and the 
 French Government acted on this opinion during the war with 
 Germany (p). Lord Chief Justice Cockburn says, " Coal, too, though 
 in its nature ancipitis' usus, yet when intended to contribute to the 
 motive power of a vessel, must, I think, as well as machinery, be placed 
 in the same category as masts and sails, which have always been placed 
 among articles of contraband " (</). 
 
 Of the same nature with the carrying of contraband goods 502. 
 is the transportation of military persons or despatches in the jJ|"* p J" 
 service of the enemy. military 
 
 A neutral vessel, which is used as a transport^or the andkie- 
 eneniy's forces, is subject to confiscation, if captured by the "patches 
 opposite belligerent. Nor will the fact of her having been enemy's 
 impressed by violence into the enemy's service, exempt her. 8ervice - 
 The master cannot be permitted to aver that he was an 
 involuntary agent. Were an act of force exercised by one 
 belligerent power on a neutral ship or person to be considered 
 a justification for an act, contrary to the known duties of the 
 neutral character, there would be an end of any prohibition 
 
 (k) [Ortolan, Diplomatic de la Mer. vol. ii. cap. 6. Bluntschli, Le Droit 
 International Codine, 765, p. 385.] 
 
 (1) [Kent, by Abdy, p. 361. Webster's Works, vol. vi. p. 452. President's 
 Message to Congress. 1st Sess. 34th Cong.J 
 
 (m) [British Counter- case at Geneva. Parl. Papers, N. America (No. 4), 
 1872, p. 55.] 
 
 (ri) [See American Law Review, vol. v. p. 371. The Btutus, 5 C. Rob. 
 331, n.] 
 
 (o) [Hautefeuille, Droits et Devoirs des Nations Neutres, vol. ii. p. 143.] 
 
 (p) [Archives Diplomatiques, 187172, Pt. I. p. 269.] 
 
 (q) [Parl. Papers, N. America, 1873 (No. 2), p. 15. Jurist, 1859, vol. v. 
 Pt. II. p. 203.] 
 
 p p 2
 
 580 RIGHTS OF WAR AS TO NEUTRALS. 
 
 under the law of nations to carry contraband, or to engage in 
 any other hostile act. If any loss is sustained in such a 
 service, the neutral yielding to such demands must seek 
 redress from the government which has imposed the restraint 
 upon him (r). As to the number of military persons neces- 
 sary to subject the vessel to confiscation, it is difficult to 
 define ; since fewer persons of high quality and character 
 may be of much more importance than a much greater 
 number of persons of lower condition. To carry a veteran 
 general, under some circumstances, might be a much more 
 noxious act than the conveyance of a whole regiment. The 
 consequences of such assistance are greater, and therefore the 
 belligerent has a stronger right to prevent and punish it ; 
 nor is it material, in the judgment of the Prize Court, whether 
 the master be ignorant of the character of the service on 
 which he is engaged. It is deemed sufficient if there has 
 been an injury arising to the belligerent from the employ- 
 ment in which the vessel is found. If imposition is practised, 
 it operates as force ; and if redress 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; otherwise such opportunities of conveyance would 
 be constantly used, and it would be almost impossible, in the 
 greater number of cases, to prove the privity of the immediate 
 offender (s). 
 
 g03 The fraudulently carrying^ the despjatch^s^of the enemy will 
 
 Fraudu- also subject the neutral vessel, in which they are transported, 
 carrying ^ capture and confiscation. The consequences of such a 
 contraband service are indefinite, infinitely beyond the effect of any con- 
 traband that can be conveyed. " The carrying of two or 
 three cargoes of military stores," says Sir W. Scott, " is 
 necessarily an assistance of a limited nature ; but in the 
 transmission of despatches may be conveyed the entire plan 
 of a campaign, that may defeat all the plans of the other 
 belligerent in that quarter of the world. It is true, as it has 
 been said, that one ball might take off a Charles the Xllth, 
 and might produce the most disastrous effects in a campaign ; 
 but that is a consequence so remote and accidental, that, in 
 
 (r) The Carolina, 4 C. Rob. 256. 
 (s) The Orozembo, 6 C. Rob. 430.
 
 RIGHTS OF WAR AS TO NEUTRALS. 581 
 
 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 (t). The case 
 of despatches 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. It is a service, therefore, 
 which, in whatever degree it exists, can only be considered in 
 one character as an act of the most hostile nature. The 
 offence of fraudulently carrying despatches in the service of 
 the enemy being, then, greater than that of carrying con- 
 traband under any circumstances, it becomes absolutely ne- 
 cessary, as well as just, to resort to some other penalty than 
 that inflicted in cases of contraband. The confiscation of the 
 noxious article which constitutes the penalty in contraband, 
 where the vessel and cargo do not belong to the same person, 
 would be ridiculous when applied to despatches. There would 
 be no freight dependent on their transportation, and there- 
 fore this penalty could not, in the nature of things, be applied. 
 The vehicle in which they are carried must, therefore, be 
 confiscated" (u). 
 
 But carrying the despatches of an ambassador or other 504. 
 public minister of the enemy, resident in a neutral country, Diplomatic 
 is an exception to the reasoning on which the above general an excep- 
 rule is founded. " They are despatches from persons who tlon> 
 are, in a peculiar manner, the favourite object of the protec- 
 tion of the law of nations, residing in the neutral country for 
 the purpose of preserving the relations of amity between that 
 State and their own government. On this ground a very 
 material distinction arises with respect to the right of fur- 
 nishing the conveyance. The neutral country has a right to 
 preserve its relations with the enemy, and you are not at 
 liberty to conclude that any communication between them 
 can partake, in any degree, of the nature of hostility against 
 you. The limits assigned to the operations of war against 
 ambassadors, by writers on public law, are, that the bellige- 
 rent may exercise his right of war against them, wherever the 
 
 (t) [The French rules of 1870 directed the ship to be confiscated if more 
 than three-fourths of the cargo consisted of contraband. Barboux, Jurisp. du 
 Conseil des Prises, 187071. Appendix, art. 6.] 
 
 (M) The Atalanta, 6 C. Rob. 440.
 
 582 RIGHTS OF WAR AS TO NEUTRALS. 
 
 character of hostility exists : he may stop the ambassador of 
 his enemy on his passage ; but when he has arrived in the 
 neutral country, and taken on himself the functions of his 
 office, and has been admitted in his representative character, 
 he becomes a sort of middle man, entitled to peculiar privi- 
 leges, as set apart for the preservation of the relations of 
 amity and peace, in maintaining which all nations are, in 
 some degree, interested. If it be argued that he retains 
 his national character unmixed, and that even his residence 
 is considered as a residence in his own country, it is answered 
 that this is a fiction of law, invented for his further protection 
 only, and as such a fiction, it is not to be extended beyond 
 the reasoning on which it depends. It was intended as a 
 privilege, and cannot be urged to his disadvantage. Could it 
 be said that he would, on that principle, be subject to any of 
 the rights of war in the neutral territory ? Certainly not : 
 he is there for the purpose of carrying on the relations of 
 peace and amity, for the interests of his own country primarily, 
 but at the same time for the furtherance and protection of 
 the interests which the neutral country also has in the con- 
 tinuance of those relations. It is to be considered also, with 
 regard to this question, what may be due to the convenience 
 of the neutral State ; for its interests may require that the 
 intercourse of correspondence with the enemy's country should 
 not be altogether interdicted. It might be thought to amount 
 almost to a declaration, that an ambassador from the enemy 
 shall not reside in the neutral State, if he is declared to be 
 debarred from the only means of communicating with his 
 own. For to what useful purpose can he reside there without 
 the opportunity of such a communication ? It is too much to 
 say that all the business of the two States shall be transacted 
 by the minister of the neutral State resident in the enemy's 
 country. The practice of nations has allowed to neutral 
 I States the privilege of receiving ministers from the belligerent 
 j powers, and of an immediate negotiation with them (x). 
 
 504a. This subject was very exhaustively discussed in the celebrated case of 
 The case The Trent. The facts of this case have been stated in a previous part 
 
 Trent f this W rk ^' Jt wil1 be remembered that Tlie Trent was a regular 
 
 mail-steamer plying on her usual course from Havanna to Nassau. 
 
 (x) Sir W. Scott, in The Caroline, 6 C. Rob. 461. 
 (y) [See ante, % 109b.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 583 
 
 Messrs. Slidell and Mason, the Confederate diplomatic agents, took their 
 places on board at Havanna as ordinary passengers, and while the ship 
 was on the high seas, she was stopped by a Federal ship-of-war, Slidell 
 and Mason, with their secretaries, were taken out, and the vessel was 
 then allowed to continue her voyage. 
 
 This case has raised the following question, which is thus stated by 
 Professor Bernard, and left it unanswered : " Does a neutral ship forfeit 
 that character, and expose itself to condemnation, by conveying, as pas- 
 sengers from one neutral port to another, persons going as diplomatic 
 agents of the enemy to a neutral country ? The American government 
 maintains the affirmative of this question if not in all cases, at least 
 in a case where the agent has not yet acquired an official character and 
 the community he is commissioned to represent has not been recognised 
 as independent. It insists on the affirmative even where the ship is a 
 regular packet, carrying mails, goods, and passengers, and making her 
 regular voyage from and to her accustomed ports, the persons themselves 
 taking their berths as ordinary passengers, and coming on board in the 
 usual way. The British government maintains the negative, and other 
 European governments appear to be of the same opinion, which is, I 
 think, the sounder and more reasonable " (2). 
 
 Prof. Bernard also says on this subject, "The following propositions, 504b. 
 though condensed, will be intelligible to lawyers. I state tlim with The car- 
 diffidence ; but they are, I believe, not far from the truth. hostile 
 
 " 1. A neutral ship, conveying persons in the enemy's employment, p ersons . 
 whether military or civil, is not liable to condemnation as prize, unless, n n r j 
 on a consideration of all the circumstances, the court comes to the con- rules, 
 elusion that she is serving the enemy as a transport, and so as to assist 
 substantially, though perhaps not directly, his military operations. 
 
 " 2. If it be proved that the ship, though owned by a neutral, was 
 actually hired for such a purpose by the enemy, it is immaterial whether 
 the persons conveyed are many or few, important or insignificant, and 
 whether the purpose of the hiring was or was not known by the master 
 or owner. I understand by hiring any contract which gives the actual 
 control and disposal of the ship to the enemy. 
 
 " 3. If, on the other hand, such a hiring by the enemy be not shown, it 
 then becomes necessary to prove that the service performed was in its 
 nature such as is rendered by a transport. The number of the persons 
 conveyed, the nature of their employment, their importance, their im- 
 mediate or ultimate destination, may then become material elements of 
 proof ; and there should be evidence of intention, or of knowledge from 
 which intention may be reasonably inferred, on the part of the owner, 
 or his agent, the master. 
 
 "4. It is incorrect, therefore, to speak of the conveyance of such persons, 
 as if it were the same thing as the conveyance of ' contraband of war,' 
 or as if the same rules were applicable to it. It is a different thing, and 
 the rules applicable to it are different. 
 
 " 5. The fact that the voyage is to end at a neutral "port is not con- 
 clusive against condemnation, but is a strong argument against it, and 
 
 (*) [Montague Bernard, Neutrality of Great Britain, p. 223.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 would indeed be practically conclusive in most cases, especially if 
 coupled with proof that the ship was pursuing her ordinary employment. 
 "6. It is not lawful, on the high seas, to take persons, whatever their 
 character, as prisoners out of a neutral ship which has not been judi- 
 cially proved to have forfeited the benefit of her neutral character " (a). 
 
 505. In general, where the ship and cargo do not belong to the 
 thTcarry- 017 same person, the contraband articles only are confiscated, and 
 ing of the carrier-master is refused his freight, to which he is en- 
 band, titled upon innocent articles which are condemned as enemy's 
 property. But where the ship and the innocent articles of the 
 cargo belong to the owner of the contraband, they are all in- 
 volved in the same penalty. And even where the ship and 
 the cargo do not belong to the same person, the carriage of 
 contraband, under the fraudulent circumstances of false 
 papers and false destination, will work a confiscation of the 
 ship as well as the cargo. The same effect has likewise been 
 held to be produced by the carriage of contraband articles in a 
 ship, the owner of which is bound by the express obligation 
 of the treaties subsisting between his own country and the 
 capturing country, to refrain from carrying such articles to 
 the enemy. In such a case, it is said that the ship throws 
 off her neutral character, and is liable to be treated at once as 
 an enemy's vessel, and as a violator of the solemn compacts 
 of the country to which she belongs (b). 
 
 Th! shf ^e g enera l rule as to contraband articles, as laid down by 
 
 must be Sir W. Scott, is that the articles must be taken in delicto, in 
 ddict 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 endeavouring 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 (c)." But the same learned 
 
 (a) [Neutrality of Great Britain during American Civil War, p. 224.] 
 
 (b) The Ringcnde Jacob, 1 C. Rob. 91 ; The Sarah Christina, Ibid. 237 ; 
 The Mercurius, Ibid. 288 ; The Franklin, 3 Ibid. 217 ; The Edward, 4 Ibid. 
 69 ; The Panger, 6 Ibid. 125 ; The Neutrality, 3 Ibid. 295. [Carrington v. 
 Merchants' Ins. Co., 8 Peters, 518; The Bermuda, 3 Wallace, 557.] As to 
 how far the shipowner is liable for the act of the master in cases of contra- 
 band, see Wheaton's Rep. vol. ii. Appendix, Note I. pp. 37, 38. 
 
 (c) The Imina, 3 C. Rob. 168.
 
 RIGHTS OF WAR AS TO NEUTRALS. 585 
 
 judge applied a different rule in other cases of contraband, 
 carried from Europe to the East Indies, with false papers and 
 false destination, intended to conceal the real object of the 
 expedition, where the return cargo, the proceeds of the out- 
 ward cargo taken on the return voyage, was held liable to 
 condemnation (d). 
 
 Although the general policy of the American government, 507. 
 in its diplomatic negotiations, has aimed to limit the cata- ru e en y" e 
 logue of contraband by confining it strictly to munitions of Commtr- 
 war, excluding all articles of promiscuous use, a remarkable 
 case occurred during the late war between Great Britain and 
 the United States, in which the Supreme Court of the latter 
 appears to have been disposed to adopt all the principles of 
 Sir W. Scott, as to provisions becoming contraband under 
 certain circumstances. But as that was not the case of 
 a cargo of neutral property, supposed to be liable to capture 
 and confiscation as contraband of war, but of a cargo of 
 enemy's property going for the supply of the enemy's naval 
 and military forces, and clearly liable to condemnation, the 
 question was, whether the neutral master was entitled to his 
 freight as in other cases of the transportation of innocent 
 articles of enemy's property; and it was not essential to the 
 determination of the case to consider under what circum- 
 stances articles ancipitis us'As might become contraband. 
 Upon the actual question before t^ie court, it seems there 
 would have been no difference of opinion among the American 
 judges in the case of an ordinary war ; all of them concurring 
 in the principle, that a neutral, carrying supplies for the 
 enemy's naval or military forces, does, under the mildest 
 interpretation of international law, expose himself to the loss 
 of freight. But the case was that of a Swedish vessel, cap- 
 tured by an American cruiser, in the act of carrying a cargo 
 of British property, consisting of barley and oats, for the 
 supply of the allied armies in the Spanish peninsula, the 
 United States being at war with Great Britain, but at peace 
 
 (d) The Rosalie and Betty, 2 C. Rob. 343; The Nancy, 3 Ibid. 122. The 
 soundness of these last decisions may be well questioned ; for in order to sus- 
 tain the penalty, there must be, on principle, a delictum at the moment of 
 seizure. To subject the property to confiscation whilst the offence no longer 
 continues, would be to extend it indefinitely, not only to the return voyage, 
 but to all future cargoes of the vessel, which would thus never be purified from 
 the contagion communicated by the contraband articles.
 
 586 RIGHTS OF WAR AS TO NEUTRALS. 
 
 with Sweden and the other powers allied against France. 
 Under these circumstances a majority of the judges were of 
 the opinion that the voyage was illegal, and that the neutral 
 carrier was not entitled to his freight on the cargo condemned 
 as enemy's property. 
 
 It was stated in the judgment of the court, that it had been 
 solemnly adjudged in the British Prize Courts, that heing en- 
 gaged in the transport service of the enemy, or in the convey- 
 ance of military persons in his employment, or the carrying of 
 despatches, are acts of hostility which subject the property to 
 confiscation. In these cases, the fact that the voyage was to 
 a neutral port was not thought to change the character of the 
 transaction. The principle of these determinations was as- 
 serted to be, that the party must be deemed to place himself 
 in the service of the enemy State, and to assist in warding off 
 the pressure of the war, or in favouring its offensive projects. 
 Now these cases could not be distinguished, in principle, from 
 that before the court. Here was a cargo of provisions exported 
 from the enemy's country, with the avowed purpose of sup- 
 plying the army of the enemy. Without this destination, they 
 would not have been permitted to be exported at all. It was 
 vain to contend that the direct effect of the voyage was not to 
 aid the British hostilities against the United States. It might 
 enable the enemy indirectly to operate with more vigour and 
 promptitude against them, and increase his disposable force. 
 But it was not the effect of the particular transaction which 
 the law regards : it was the general tendency of such trans- 
 actions to assist the military operations of the enemy, and to 
 tempt deviations from strict neutrality. The destination to a 
 neutral port could not vary the application of this rule. It 
 was only doing that indirectly which was directly prohibited. 
 Would it be contended that a neutral might lawfully transport 
 provisions for the British fleet and army, while it lay at Bor- 
 deaux preparing for an expedition to the United States? 
 Would it be contended that he might lawfully supply a British 
 fleet stationed on the American coast ? An attempt had been 
 made to distinguish this case from the ordinary cases of em- 
 ployment in the transport service of the enemy, upon the 
 ground that the war of Great Britain against France was a war 
 distinct from that against the United States ; and that Swedish
 
 RIGHTS OF WAR AS TO NEUTRALS. 587 
 
 subjects had a perfect right to assist the British arms in 
 respect to the former though not to the latter. But the court 
 held, that whatever might be the right of the Swedish sove- 
 reign, acting under his own authority, if a Swedish vessel be 
 engaged in the actual service of Great Britain, or in carrying 
 stores for the exclusive use of the British armies, she must, 
 to all intents and purposes, be deemed a British transport. 
 It was perfectly immaterial in what particular enterprise 
 those armies might, at the time, be engaged ; for the same 
 important benefits were conferred upon the enemy of the 
 United States, who thereby acquired a greater disposable force 
 to bring into action against them. In The Friendship (e) , 
 Sir W. Scott, speaking on this subject, declared that " it 
 signifies nothing, whether the men so conveyed are to be put 
 into action on an immediate expedition or not. The mere 
 shifting of drafts in detachments, and the conveyance of stores 
 from one place to another, is an ordinary employment of a 
 transport vessel, and it is a distinction totally unimportant 
 whether this or that case may be connected with the immediate 
 active service of the enemy. In removing forces from distant 
 settlements, there may be no intention of immediate action ; 
 but still the general importance of having troops conveyed to 
 places where it is convenient that they should be collected, 
 either for present or future use, is what constitutes the object 
 and employment of transport vessels." It was obvious that 
 the learned judge did not deem it material to what places the 
 stores might be destined ; and it must be equally immaterial 
 what is the immediate occupation of the enemy's force. That 
 force was always hostile to America, be it where it might. 
 To-day it might act against France, to-morrow against the 
 former country ; and the better its commissary department was 
 supplied, the more life and activity was communicated to all 
 its motions. It was not therefore material whether there was 
 another distinct war, in which the enemy of the United States 
 was engaged or not. It was sufficient, that his armies were 
 everywhere their enemies ; and every assistance offered to 
 them must, directly or indirectly, operate to their- injury. 
 
 The court was, therefore, of opinion that the voyage in 
 which the vessel was engaged was illicit, and inconsistent with 
 (e) 6 C. Rob. 420.
 
 588 RIGHTS OF WAR AS TO NEUTRALS. 
 
 the duties of neutrality, and that it was a very lenient adminis- 
 tration of justice to confine the penalty to a mere denial of 
 freight (/). 
 
 508. It had been contended in argument in the above case, that 
 
 waVof 6 the exportation of grain from Ireland being generally pro- 
 1756. hibited, a neutral could not lawfully engage in that trade 
 
 during war, upon the principle of what has been called the 
 " Rule of the War of 1756," in its application to the colonial 
 and coasting trade of an enemy not generally open in time of 
 peace. The court deemed it unnecessary to consider the prin- 
 ciples on which that rule is rested by the British Prize Courts, 
 not regarding them as applicable to the case in judgment. 
 But the legality of the rule itself has always been contested 
 by the American government, and it appears in its origin to 
 have been founded upon very different principles from those 
 which have more recently been urged in its defence. During 
 the war of 1756, the French government, finding the trade 
 with their colonies almost entirely cut off by the maritime 
 superiority of Great Britain, relaxed their monopoly of that 
 trade, and allowed the Dutch, then neutral, to carry on the 
 commerce between the mother country and her colonies, 
 under special licences or passes, granted for this particular 
 purpose, excluding at the same time all other neutrals from 
 the same trade. Many Dutch vessels so employed were cap- 
 tured by the British cruisers, and, together with their cargoes, 
 were condemned by the Prize Courts, upon the principle, that 
 by such employment they were in effect, incorporated into 
 the French navigation, having adopted the commerce and 
 character of the enemy, and identified themselves with his 
 interests and purposes. They were, in the judgment of 
 these courts, to be considered like transports in the enemy's 
 service, and hence liable to capture and condemnation, upon 
 the same principle with property condemned for carrying 
 military persons or despatches. In these cases the property 
 was considered pro hdc vice, as enemy's property, as so com- 
 pletely identified with his interests as to acquire a hostile cha- 
 racter. So, where a neutral is engaged in a trade, which is 
 exclusively confined to the subjects of any country, in peace 
 and in war, and is interdicted to all others, and cannot at any 
 
 (/) The Cominercen, 1 Wheaton, 382.
 
 RIGHTS OF WAR AS TO NEUTRALS. 589 
 
 time be avowedly carried on in the name of a foreigner, such 
 a trade is considered so entirely national, that it must follow 
 the hostile situation of the country (g). There is all the differ- 
 ence between this principle and the more modern doctrine 
 which interdicts to neutrals, during war, all trade not open 
 to them in time of peace, that there is between the granting 
 by the enemy of special licenses to the subjects of the oppo- 
 site belligerent, protecting their property from capture in a 
 particular trade which the policy of the enemy induces him 
 to tolerate, and a general exemption of such trade from 
 capture. The former is clearly cause of confiscation, whilst 
 the latter has never been deemed to have such an effect. 
 The Rule of the War of 1756 was originally founded upon 
 the former principle : it was suffered to lie dormant during 
 the war of the American Revolution ; and when revived at 
 the commencement of the war against France in 1793, was 
 applied, with various relaxations and modifications, to the 
 prohibition of all neutral traffic with the colonies and upon 
 the coasts of the enemy. The principle of the rule was fre- 
 quently vindicated by Sir W. Scott, in his masterly judgments 
 in the High Court of Admiralty and in the writings of other 
 British public jurists of great learning and ability. But the 
 conclusiveness of their reasonings was ably contested by dif- 
 ferent American statesmen, and failed to procure the acquies- 
 cence of neutral powers in this prohibition of their trade 
 with the enemy's colonies. The question continued a fruitful 
 source of contention between Great Britain and those powers, 
 until they became her allies or enemies at the close of the 
 war ; but its practical importance will probably be hereafter 
 much diminished by the revolution which has since taken 
 place in the colonial system of Europe (h) 
 
 The outbreak of war lias always necessarily curtailed the usual opera- 508 a. 
 tions of trade, and as a natural consequence merchants have continually Continuous 
 endeavoured to avoid the operation of the laws of war, and to carry on v y a S < 
 trade rendering their goods liable to capture, with as little risk as pos- 
 sible. One of the chief artifices has been to send goods destined for a 
 
 (g) The Princessa, 2 C. Eob. 52; The Anna Catherina, 4- Ibid. 118; The 
 Rendsborg, Ibid. 121; The Vrow Anna Catherina, 5 Ibid. 161. Wheaton's 
 Rep. vol. ii. Appendix, p. 29. 
 
 (h) Wheaton's Rep. vol. i. Appendix, Note iii. See Madison's "Exami- 
 nation of the British doctrine which subjects to capture a neutral trade not 
 open in time of peace. "
 
 590 RIGHTS OF WAR AS TO NEUTRALS. 
 
 belligerent, to some conveniently situated neutral port, first, with the 
 intention of afterwards forwarding them to their ultimate destination. 
 To sustain the rights of belligerents when this is done, Prize Courts have 
 adopted what is called the principle of " continuous voyages." This has 
 been explained as follows by Lord Stowell. He says, " It is an inherent 
 and settled principle in cases in which the same question can have come 
 under discussion, that the mere touching at any port without importing 
 the cargo into the common stock of the country, will not alter the nature of 
 the voyage, which continues the same in all respects, and must be con- 
 sidered as a voyage to the country to which the vessel is actually going 
 for the purpose of delivering the cargo at the ultimate port" (i). But 
 in Lord Stowell's time, and down to the American civil war, this doctrine 
 had only been applied to cases covered by the rule of 1756, or where an 
 underhand trade was attempted to be carried on by subjects of one 
 belligerent with the enemy (k). During the civil war the Supreme- 
 Court, availing itself of Lord Stowell's language, applied the principle 
 of continuous voyages to blockade running and the conveyance of con- 
 508 b. traband, and thus created a serious innovation in the law of prize. In 
 The Ber- the case of The Bermuda, which was captured on a voyage from England 
 to Nassau, the court said, " Neutral trade is entitled to protection in our 
 courts. Neutrals in their own country may sell to belligerents whatever 
 belligei'ents choose to buy. The principal exceptions to this rule are, 
 that neutrals must not sell to one belligerent what they refuse to sell to 
 the other, and must not furnish soldiers or sailors to either ; nor pre- 
 pare, nor suffer to be prepared within their territory, armed ships or 
 military or naval expeditions against either. So, too, except goods con- 
 traband of war, or conveyed with intent to violate a blockade, neutrals 
 may transport to belligerents whatever belligerents may agree to take. 
 And so, again, neutrals may convey in neutral ships from one neutral 
 port to another, any goods, whether contraband of war or not, if intended 
 for actual delivery at the port of destination, and to become part of the 
 common stock of the country or of the port But if it is in- 
 tended to affirm (as was argued by counsel) that a neutral ship may take 
 on a contraband cargo ostensibly for a neutral port, but destined in 
 reality for a belligerent port, either by the same ship or by another, 
 without becoming liable, from the commencement to the end of the 
 voyage, to seizure, in order to the confiscation of the cargo, we do not 
 
 agree to it It makes no difference whether the destination 
 
 to the rebel port was ulterior or direct ; nor could the question of 
 destination be affected by transhipment at Nassau, if transhipment was 
 intended, for that could not break the continuity of transportation of 
 the' cargo. 
 
 " The interposition of a neutral port, between neutral departure and 
 belligerent destination, has always been a favourite resort of contraband 
 carriers and blockade runners. But it never avails them when the ulti- 
 mate destination is ascertained. A transportation from one point to 
 
 (i) [The Maria, 5 C. Rob. 368. And see The Matchless, \ Hagg. Ad. 106; 
 The Jonge Pieter, 4 C. Rob. 83; The William, 5 C. Rob. 385.] 
 
 (&) [Montague Bernard, Neutrality of Great Britain, p. 811. The Ebcnezer, 
 6 C. Rob. 250; The Thomyris, Edw. 17.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 591 
 
 another remains continuous, so long as intent remains unchanged, no 
 
 matter what stoppages or transhipments intervene " (I). Thus a vessel 
 
 sailing from a neutral port, or a cargo sent from such a port, with intent 
 
 to violate a blockade was held liable to condemnation from the very 
 
 outset of the voyage, no matter to what intermediate ports the ship 
 
 might go, provided the ulterior intent was ascertained (m). The case yfa 
 
 of The Springbok carried these principles to their furthest limit. She Sprinybolc. 
 
 was on a bond fide voyage from London to Nassau, with a mixed cargo, 
 
 consisting partly of contraband goods. While on the high seas and 
 
 before arriving at Nassau, she was captured by a United States cruiser 
 
 and taken to New York. The District Court condemned both ship and 
 
 cargo as prize (?i), but the Supreme Court reversed the decree as regards 
 
 the ship, there being no sufficient proof that the destination of the cargo 
 
 to a blockaded port was known to her owners (o). 
 
 In these cases, when the ultimate destination was some Confederate 508 c. 
 seaport, there was no doubt that the ship and goods could be captured Difference 
 on their way from the interposed neutral port to the blockaded port, between 
 The innovation consisted in making the liability extend to the journey j^nd^nd y 
 from the point of departure to the interposed port. A distinction, how- sea. 
 ever, was made when the goods were finally to reach the belligerent by 
 land. Thus the traffic between neutral States and Matamoras in Mexico 
 (except in contraband), was held not to be any violation of the blockade, 
 even if there were an intent to supply Texas through Matamoras. In this 
 case the goods could only reach the Confederates by land, and a blockade 
 by sea cannot give a belligerent any right to capture goods convevt d 
 over land. The result was, that while the blockade lasted, neutral goods 
 destined to reach the Confederates entirely by sea, whether in the same 
 ship or another, were liable to seizure during the whole voyage, whereas 
 if the last part of the journey was to be performed from a neutral place 
 over land, the goods were not liable at all. If contraband, the goods 
 were held liable whatever means of transport were adopted (p). It must 
 be borne in mind that these new rules are at present only the law of the 
 United States, and it remains to be seen whether they will be adopted 
 by other countries in the next maritime war. It should be the tendency 
 of international law to mitigate the effect of war as against neutral trade, 
 but these decisions have just the contrary effect. Formerly neutral com- 
 merce was only interfered with when the goods were on their way 
 directly from a neutral to a blockaded port, or when contraband was 
 actually on its way to the belligerent. According to the doctrines laid 
 down by the Supreme Court, neutrals might be seized almost anywhere 
 on the ground that the ships or their cargoes were contraband or were 
 ultimately destined to a blockaded port. Thus, suppose England and 
 France were at war, and the British fleet blockaded Brest. If England 
 
 (I) [The Bermuda, 3 Wallace, 551.] 
 
 (m) [The Circassian, 2 Wallace, 135; The Stephen Hart, 3 Wallace 559- 
 The Springbok, 5 Wallace, 1.] 
 
 (n) The Springbok, Blatchford, Prize cases, 349.] 
 
 (o) [Ibid., 5 Wallace, 1. See Revue de Droit International, 1875, p. 241. 
 Calvo, ii. 1120. Quarterly Law Review, Nov. 1877.1 
 
 (p) [The Peterhoff, 5 Wallace, 35.]
 
 592 RIGHTS OF WAR AS TO NEUTRALS. 
 
 adopted these rules, her cruisers might seize Italian or Dutch vessels on 
 their way to New York, on the ground that the ulterior destination of 
 the ship or cargo was Brest. Again, an Italian or Dutch ship on its 
 way to Antwerp, with the intention of supplying Brest with goods over 
 land could not be condemned, unless the goods were contraband (q). 
 
 509. Another exception to the general freedom 'of neutral corn- 
 Breach of merce in time of war, is to be found in the trade to ports or 
 places besieged or blockaded by one of the belligerent, powers. 
 The more ancient text writers all require that the siege or 
 blockade should actually exist, and be carried on by an 
 adequate force, and not merely declared by proclamation, in 
 order to render commercial intercourse with the port or place 
 unlawful on the part of neutrals. Thus Grotius forbids the 
 carrying any thing to besieged or blockaded places, " if it 
 might impede the execution of the belligerent's lawful designs, 
 and if the carriers might have known of the siege or blockade ; 
 as in the case of a town actually invested, or a port closely 
 blockaded, and when a surrender or peace is already expected 
 to take place" (r). And Bynkershoek, in commenting upon 
 this passage, holds it to be " unlawful to carry any thing, 
 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 force, but also by the 
 want of provisions and other necessaries. If, therefore, it 
 should be lawful to carry to them what they are in need of, 
 the belligerent might thereby be compelled to raise the siege 
 or blockade, which would be doing him an injury, and there- 
 fore unjust. And because it cannot be known what articles 
 the besieged may want, the law forbids, in general terms, 
 carrying any thing to them ; otherwise disputes and alterca- 
 tions would arise to which there would be no end " (s). 
 
 (q) [See paper by Sir Travers Twiss read at the Antwerp Congress. Quarterly 
 Law Review, Nov. 1S77.] 
 
 (r) "Si juris mei executionem rerum subvettio impediret, idque scire po- 
 tuerit qui advexit, ul si OPPIDUM OBSESSUM TENEBAM, si PORTUS CLAUSOS, et 
 jam deditio aut pax expectabatur," &c. Grotius, de Jur. Bel. ac Pac. lib. iii. 
 cap. 1, 5, note 3. 
 
 (s) "Sola obsidio in causa est, car nihil obsessis subvehere liceat, sive con- 
 trabandum sit, sive non sit, nam obsessi non tantum vi coguntur ad dedi- 
 tionem, sed et fame, et alia aliarum rerum penuria. Si quid eorum, quibus 
 indigeat, tibi adferre liceret, ego forte cogerer obsidtonem solvere, et sic facto 
 tuo mihi noceres, quod iniquu'm est. Quia autem scire nequit, quibus rebus 
 bsessi indigeant, quibus abundent, omnis subvectio vetita est, alioquin alter- 
 cationum nullus omnino esset modus vel finis. Hactenus Grotii sententise 
 accedo, sed vellem ne ibidem addidisset, tune demum id verum esse, si jam 
 deditio aut pax expeclabatur, .... nam nee rationi conveniunt, nee
 
 J 
 
 RIGHTS OF WAR AS TO NEUTRALS. 593 
 
 Bynkershoek appears to have mistaken the true sense of Q | n ^ 1 i j ) of 
 the above-cited passage from Grotius, in supposing that the Bynker- 
 latter meant to require, as a necessary ingredient in a strict Cockade 
 blockade, that there should be an expectation of peace or of 
 a surrender, when, in fact, he merely mentions that as an 
 example, by way of putting the strongest possible case. But 
 that he concurred with Grotius in requiring a strict and actual 
 siege or blockade, such as where a town is actually invested 
 with troops, or a port closely blockaded by ships of war (oppi- 
 dum obscssum, portus clausos), is evident from his subsequent 
 remarks in the same chapter, upon the decrees of the States- 
 General against those who should carry any thing to the 
 Spanish camp, the same not being then actually besieged. 
 He holds the decrees to be perfectly justifiable, so far as they 
 prohibited the carrying of contraband of war to the enemy's 
 camp ; " but, as to other things, whether they were or were 
 not lawfully prohibited, depends entirely upon the circum- 
 stance of the place being besieged or not." So also, in com- 
 menting upon the decree of the States- General of the 26th 
 June, 1630, declaring the ports of Flanders in a state of 
 blockade, he states that this decree was for some time not 
 carried into execution by the actual presence of a sufficient 
 naval force, during which period certain neutral vessels trading 
 to those ports were captured by the Dutch cruisers ; and that 
 part of their cargoes only which consisted of contraband 
 articles was condemned, whilst the residue was released with 
 the vessels. "It has been asked," says he, "by what law 
 the contraband goods were condemned under those circum- 
 stances, and there are those who deny the legality of their 
 condemnation. It is evident, however, that whilst those coasts 
 were guarded in a lax or remiss manner, the law of blockade, 
 by which all neutral goods going to or coming from a blockaded 
 port may be lawfully captured, might also have been relaxed ; 
 but not so the general law of war, by which contraband goods, 
 when carried to an enemy's port, even though not blockaded, 
 are liable to confiscation " (t). 
 
 pactis Gentium, quse mihi succurrerunt. Quse ratio me arbitrura constituit 
 de futura deditione aut pace? et, si neutra expectetur, jam licebit obsessis 
 quaelibet advehere? imo nunquam licet, durante obsidione, et amici non est 
 causam amici perdere, rel quoque modo deteriorem facere." Bynkershoek, 
 Qujest. Jur. Pub. lib. i. cap. 11. 
 (0 Wheaton's Hist, of Law of Nations, pp. 138143. 
 
 Q Q
 
 594 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 510 a. 
 
 Legal as- 
 pect of 
 blockade 
 running 
 and con- 
 veying 
 contra- 
 band. 
 
 510b. 
 
 Sieges and 
 blockades. 
 
 The law of blockade like that of contraband is a compromise between 
 the conflicting rights of belligerents and neutrals, viz., the right of the 
 former to injure his foe so as to compel him to give up the struggle, and 
 the right of the latter to carry on his usual trade with that foe. It is 
 often said that the violation of a blockade and the transportation of con- 
 traband are unlawful, but this requires some explanation. If by thia 
 expression it is intended to imply that such acts are contrary to inter- 
 national law, in the sense of being criminal or as being acts of dis- 
 obedience to a positive rule, the term unlawful is then wrongly used. 
 Neutral subjects are under no positive duty imposed by the law of 
 nations, to abstain from blockade running, or from carrying contraband. 
 The acts which amount to this in time of war, are perfectly lawful in 
 time of peace, but the existence of war gives to the belligerents certain 
 rights which they may enforce against the neutrals who engage in these 
 two transactions. Thus the exportation of a cargo of arms to any State 
 during peace is indisputably lawful, and it is also in a certain sense not 
 unlawful when the State to which the arms are consigned is at war, but 
 in this case the sender is exposed to the risk of forfeiting his goods if the 
 other belligerent can capture them on their way. So it is with blockade. 
 Its violation only exposes the blockade runner to the chance of losing 
 his ship and cargo, if he is unsuccessful. It is no violation of neutrality 
 for a State not to prevent its subjects from engaging in such traffic ; its 
 duty as a neutral consists in letting them do so at their own risk, 
 and abandoning them to the prize courts of the belligerent who may 
 capture them (). Proclamations of neutrality usually inform subjects 
 that if they engage in blockade running or the carriage of contraband 
 they "will rightfully incur, and be justly liable to, hostile capture, and 
 to the penalties denounced by the law of nations in that behalf "(a;). 
 Thus these two transactions are only unlawful in the sense that the 
 belligerent may inflict the punishment of confiscation if he can catch 
 the perpetrators in the act. When the act is completed no penalty can 
 be imposed ; the responsibility for it ceases on completion (y). In the 
 foregoing remarks it is assumed that the neutral States have not enacted 
 any municipal law expressly prohibiting blockade running, &c., and 
 that they are not bound by any treaty stipulations on the subjects. The 
 matter is here discussed only from the point of view of international 
 law (z). 
 
 There is an important distinction between sieges and blockades. The 
 former are as a rule undertaken with the object of capturing the 
 place besieged, while the usual object of the latter is to cripple the 
 resources of the enemy by intercepting his commerce with neutral 
 
 (M) [Parl. Papers, N. America, 1873 (No. 2), p. 109.] 
 
 (x) [Proc. of 13th May, 1859, relating to French Austrian war. See Rep. 
 of Neutrality Laws Commission, 1868, p. 74 ; and see there other proclama- 
 tions. ] 
 
 (y) [The Helen, L. R. 1 A. & E. 1; Ex parte Chavasse, 11 Jur. N. S. 400; 
 Naylor v. Taylor, 9 B. & C. 718.] 
 
 (z) [See on this subject Parl. Papers, N. America, 1873 (No. 2), p. 14. 
 Letters of Historicus : Contraband. ] 
 
 (a) [Duer on Insurance, vol. i. lect. 7, 32.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 595 
 
 States (a). A city may, and often is, both besieged and blockaded at 
 the same time (b). It is thus evident that neutral States suffer to a 
 great extent from a blockade, and such an undertaking has been de- 
 scribed as *' la plus grave atteinte qui puisse Stre portee par la guerre au 
 droit des neutres " (c). 
 
 A blockade being thus an infringement of neutral rights, its operation 510 c. 
 is not to be extended further than the actual circumstances of the case 
 render it necessary. Thus when the United States declared all the 
 Southern ports blockaded, and a squadron cruised off the mouth of the 
 Rio Grande to intercept the trade with Texas, the Supreme Court de- 
 cided that this blockade was not to be held to apply to the western side 
 of the Rio Grande, which was in Mexican and neutral territory (rf). 
 A blockade must also be absolute, that is, it must interdict all com- 
 merce whatever with the blockaded port. It is not legitimate if it 
 allows to either belligerent a freedom of commerce denied to the sub- 
 jects of neutral States. During the Crimean war various orders were jvie Fran- 
 issued by the English, French, and Russian governments, the effect of ciska. 
 which was to permit trade to be carried on by their respective subjects 
 in the Baltic ports, while those ports were blockaded by the English 
 and French Meets, but which excluded neutrals from such trade. During 
 this blockade a Danish '(and neutral) ship was captured by an English 
 cruiser near the entrance of the Gulf of Riga. The Privy Council held 
 that as the blockade was relaxed in favour of belligerents to the exclu- 
 sion of neutrals, it was not a legal blockade, and therefore the vessel 
 was improperly seized for attempting to enter the port of Riga, and 
 must be restored (e). 
 
 " To constitute a violation of blockade," says Sir W. Scott, 511. 
 
 "three things must be proved: 1st. The existence of an thingsmust 
 
 actual blockade ; 2ndly. The knowledge of the party sup- be P rov ed 
 
 posed to have offended ; and Srdly. Some act of violation, tute a 
 
 either by going in or coming out with a cargo laden after the j^jf^ 11 f 
 commencement of blockade (/)." 
 
 1. The definition of a lawful maritime blockade, requiring 512. 
 
 the actual presence of a maritime force stationed at the pl -csence 
 
 entrance of the port, sufficiently near to prevent communica- of the . 
 
 tion, as given by the text writers, is confirmed by the authority force, 
 of numerous modern treaties, and especially by the Conven- 
 tion of 1801, between Great Britain and 'Russia, intended as 
 a final adjustment of the disputed points of maritime law, 
 
 (b) [Calvo, ii. 1139.] 
 
 (c) [Cauchy, torn. ii. p. 196. See also Fiore, torn. ii. p. 446.] 
 
 (rf) [ The Pctcrhoff, 5 Wallace, 35 ; The Frau Ilsabe, 4 C. Rob. 63 ; The 
 Luna, Eclw. 190.] 
 
 (e) [The Franc iska (Northcote v. Douglas), 10 Moo. P. C. 36.] 
 (/) The Betsey, 1 C. Rob. 92. 
 
 Q Q 2
 
 596 
 
 EIGHTS OF WAR AS TO NEUTRALS. 
 
 513. 
 
 Temporary 
 interrup- 
 tion. 
 
 which had given rise to the armed neutrality of 1780 and of 
 1801 (g). 
 
 The only exception to the general rule, which requires the 
 actual presence of an adequate force to constitute a lawful 
 blockade, arises out of the circumstance of the occasional tem- 
 porary absence of the blockading squadron, produced by acci- 
 dent, as in the case of a storm, which does not suspend the 
 legal operation of the blockade. The law considers an attempt 
 to take advantage of such an accidental removal a fraudulent 
 attempt to break the blockade (h). 
 
 513a. 
 
 Efficiency 
 of block- 
 ades. 
 
 The fourth article of the Declaration of Paris, 1856, is as follows : 
 " Blockades, in order to be binding, must be effective, that ia to say, main- 
 tained by a force sufficient really to prevent access to the coast of the 
 enemy " (t). This merely puts into a formula what was already a 
 principle of the law of nations, but it leaves the often disputed question 
 of what is a " sufficient force " in the same state as before. This ia, in 
 reality, more a question of fact than of law, and it seems almost impos- 
 sible to lay down any precise rule defining in all cases what is a sufficient 
 force (&). " In the eye of the law," said Lord Chief Justice Cockbum, 
 " a blockade is effective if the enemy's ships are in such numbers and 
 positions as to render running the blockade a matter of danger, although 
 some vessels may succeed in getting through " (I). A blockade is not 
 necessarily confined to maritime operations. It may be made effec- 
 tual by batteries ashore as well as by ships afloat. In the case of an 
 inland port, the most effective blockade would be maintained by batteries 
 commanding the river or inlet by which it may be approached, supported 
 by a naval force sufficient to warn off innocent and capture offending 
 vessels attempting to enter (m). The blockade of the Confederate ports 
 by the United States was one of the most extraordinary in history. It 
 extended over a coast line of more than 3000 miles, and though, at the 
 outset, the Federal fleet was not equal to such a gigantic task, foreign 
 governments recognised the blockade. As the war progressed the de- 
 velopment of the naval resources of the Northern States enabled 
 them to intercept most of the trade with the South, and this was 
 one of the chief causes of their ultimate success (ri). The Supreme Court 
 held that this extensive blockade being once established, and duly noti- 
 fied, it was to be deemed to continue until notice of discontinuance, in 
 
 (g) The 3rd art. sect. 4, of this convention, declares : " That in order t 
 determine what characterises a blockaded port, that domination is given only 
 where there is, by the disposition of the power which attacks it with ships 
 stationary, or sufficiently near, an evident danger in entering." 
 
 (h) The Columbia, I C. Rob. 154. 
 
 (i) [Hertslet, Map of Europe, vol. ii. p. 1283.] 
 
 (k) [Calvo, ii. 1148. Bluntschli, 829.] 
 
 (I) [Oeipel v. Smith, L. R. 7 Q. B. 410.] 
 
 (m) [The Circassian, 2 Wallace, 149.] 
 
 () [Wheaton by Dana, note 232.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 597 
 
 the absence of positive proof of discontinuance by other evidence. Thus 
 ships captured for endeavouring to enter or leave the Confederate ports 
 were condemned as prize when their officers saw, or swore they saw, no 
 blockading ships off the ports they were making for or quitting (o). A 
 milder rule towards neutrals was adopted by France in 1870. French 
 naval officers were instructed that ships approaching a blockaded port 
 were not to be deemed to intend violating the blockade, until its notifica- 
 tion had been inscribed on their register or ship's papers, by an officer of 
 one of the ships forming the blockade (p). 
 
 A question respecting the efficiency of a, blockade arose during the 513b. 
 present Turco-Russian war. Turkey proclaimed a blockade of the y Ur ^ 1S j 
 whole of the coasts of the Black Sea, from Trebizond to the mouth of th ^ Black 
 the Danube, and maintained it by a force of cruisers in the Black Sea Sea. 
 itself. This force prevented most of the trade with the Russian ports 
 from being carried on ; but, besides this, the Porte stationed two cruisers 
 in the Bosphorus, and any vessels which escaped the Black Sea squadron 
 were captured on arriving there, and taken before the Prize Court, 
 sitting at Constantinople. A more complete and efficient blockade could 
 not possibly be devised, nevertheless it was argued for the owners of the 
 prizes, that being neutral vessels (mostly Greek), as soon as they had 
 escaped the Black Sea squadron, they were free, and were no longer 
 liable to capture. The Turkish Prize Court, however, condemned the 
 vessels. This case was peculiarly important from the fact that some of the 
 foreign ambassadors at the Porte had intimated that if these vessels were 
 not condemned, the blockade would not be recognised by other countries. 
 To hold that these Greek vessels were not liable to be captured in the 
 Bosphorus, would have been tantamount to opening the general com- 
 merce of the Black Sea to Greece, and this would have immediately in- 
 validated the whole blockade (q). 
 
 2. As a proclamation, or general public notification, is not 514. 
 of itself sufficient to constitute a legal blockade, so neither can ^ n t j^ ledge 
 a knowledge of the existence of such a blockade be imputed to party, 
 the party, merely in consequence of such a proclamation or 
 notification. Not only must an actual blockade exist, but a 
 knowledge of it must be brought home to the party, in order 
 to show that it has been violated (r). As, on the one hand, a 
 declaration of blockade which is not supported by the fact 
 cannot be deemed legally to exist, so, on the other hand, the 
 fact, duly notified to the party on the spot, is of itself sufficient 
 to affect him with a knowledge of it ; for the public notifica- 
 
 (o) [The Baigorry, 2 Wallace, 480; The An>>romeda, Ibid. p. 481.] 
 (p) [See Instructions, art. 7. Barboux, Jump, du Cunseil dca Prises, 1870 
 71, Appendix.] 
 
 (q) [See the Times, 15th Dec. 1877, p. 6.] 
 (r) The Bdsey, 1 C. Rob. 93.
 
 598 RIGHTS OF WAR AS TO NEUTRALS. 
 
 tions between governments can be meant only for the informa- 
 tion of individuals ; but if the individual is personally informed, 
 that purpose is still better obtained than by a public declara- 
 tion (s). Where the vessel sails from a country lying sufficiently 
 near to the blockaded port to have constant information of the 
 state of the blockade, whether it is continued or is relaxed, no 
 special notice is necessary ; for the public declaration in this 
 case implies notice to the party, after sufficient time has 
 elapsed to receive the declaration at the port whence the 
 vessel sails (t). But wh*re the country lies at such a 'dis- 
 tance that the inhabitants cannot have this constant infor- 
 mation, they may lawfully send their vessels conjecturally, 
 upon the expectation of finding the blockade broken up, 
 after it has existed for a considerable time. In this case, 
 the party has a right to make a fair inquiry whether the 
 blockade be determined or not, and consequently cannot 
 be involved in the penalties affixed to a violation of it, unless, 
 upon such inquiry, he receives notice of the existence of the 
 blockade () 
 
 515. " There are," says Sir W. Scott, " two sorts of blockade : 
 
 tiveor one by the simple fact only, the other by a notification accom- 
 presumed panied with the fact. In the former case, when the fact ceases 
 otherwise than by accident, or the shifting of the wind, there 
 is immediately an end of the blockade ; but where the fact is 
 accompanied by a public notification from the government of a 
 belligerent country to neutral governments, I apprehend, primd 
 facie, the blockade must be supposed to exist till it has been 
 publicly repealed. It is the duty, undoubtedly, of a belligerent 
 country, which has made the notification of blockade, to notify 
 in the same way, and immediately, the discontinuance of it ; to 
 suffer the fact to cease, and to apply the notification again at 
 a distant time, would be a fraud on neutral nations, and a con- 
 duct which we are not to suppose that any country would 
 pursue. I do not say that a blockade of this sort niciy not, in 
 any case, expire de facto ; but I say that such a conduct is not 
 hastily to be presumed against any nation ; and, therefore, till 
 such a case is clearly made out, I shall hold that a blockade by 
 
 (s) The Mercurius, 1 C. Rob. 83. 
 
 (t) The Jonge Petronclln, 2 C. Rob. 131. The Calypso, Ibid. 298. 
 
 (v) The Bclsey, 1 C. Rob. 332.
 
 RIGHTS OF WAR AS TO NEUTRALS. 599 
 
 notification is, prhnd facie, to be presumed to continue till the 
 notification is revoked " (it). And in another case he says : 
 " The effect of a notification to any foreign government would 
 clearly be to include all the individuals of that nation ; it would 
 be nugatory, if individuals were allowed to plead their igno- 
 rance of it ; it is the duty of foreign governments to communi- 
 cate 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 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 a 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 for a blockaded place is suffi- 
 cient to constitute the offence. It is to be presumed that the 
 notification will be formally revoked, and that due notice will 
 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 
 complete, and the property engaged in it subject to confisca- 
 tion. 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 doubtful and provisional destination " (x). 
 
 In the case of a simple blockade, the captors are bound to prove its 515 a. 
 existence at the time of capture ; while in the case of a public blockade, Simple and 
 the claimants are held liable to proof of discontinuance, in order to pro- | ''j c , 
 tect themselves from the penalties of alleged violation (if). In the 
 case of a public blockade, a ship hovering near a blockaded port can- 
 not say she was going to the blockading squadron to ask for authority 
 to continue her voyage (z). 
 
 " A notice of blockade," says Prof. Bernard, " must not be more ex- c 515 y, 
 tensive than the blockade itself. A belligerent cannot be allowed to Extent of 
 proclaim that he has instituted a blockade of all the ports of the enemy, notice. 
 
 (u) The Neptunus, 1 C. Rob. 171. 
 (x) The Neptunus, Hcmpel, 2 C. Rob. 112. 
 (y) [The Circassian, 2 Wallace, 150.] 
 
 (z) [The Admiral, 3 Wallace, 603 ; The Josephine, Ibid. 83 ; The Cheshire, 
 Ibid. 231.]
 
 600 RIGHTS OF WAR AS TO NEUTRALS. 
 
 within certain specified limits, when in truth he has only blockaded 
 some of them. Such a course would introduce all the evils of what is 
 termed a " paper blockade," and would be attended with the grossest 
 injustice to the commerce of neutrals. Accordingly, a neutral is at 
 liberty to disregard such a notice, and is not liable to the penalties 
 attending a breach of blockade for afterwards attempting to enter one of 
 the ports which really are blockaded " (a). 
 
 Treaty 
 
 tions as to 
 notice. 
 
 A more definite rule as to the notification of an existing 
 stipuia- blockade has been frequently provided by conventional stipu- 
 lations between different maritime powers. Thus by the 18th 
 article of the treaty of 1794, between Great Britain and the 
 United States, it was declared " That whereas it frequently 
 happens that vessels sail for a port or place belonging to an 
 enemy, without knowing that the same is either besieged, 
 blockaded, or invested, it is agreed that every vessel so cir- 
 cumstanced may be turned away from such port or place ; but 
 she shall not be detained, nor her cargo, if not contraband, 
 be confiscated, unless, after notice, she shall again attempt to 
 enter ; but she shall be permitted to go to any other port 
 or place she may think proper." This stipulation, which is 
 equivalent to that contained in previous treaties between Great 
 Britain and the Baltic powers, having been disregarded by the 
 naval authorities and prize courts in the West Indies, the 
 attention of the British government was called to the subject 
 by an official communication from the American government. 
 In consequence of this communication, instructions were sent 
 out in the year 1804, by the Board of Admiralty, to the naval 
 commanders and judges of the vice- admiralty courts, not to 
 consider any blockade of the French West-India islands as 
 existing, unless in respect to particular ports which were 
 actually invested ; and then not to capture vessels bound to 
 such ports, unless they should previously have been warned 
 not to enter them. The stipulation in the treaty intended to 
 be enforced by these instructions seems to be a correct ex- 
 position of the law of nations, and is admitted by the con- 
 tracting parties to be a correct exposition of that law, or to 
 constitute a rule between themselves in place of it. Neither 
 the law of nations nor the treaty admits of the condemnation 
 
 (a) [Montague Bernard, Neiitrality of Gt. Britain, p. 231. Northcotc \. 
 Douglas (The Frantfska), 10 Moo. P. C. 37.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 601 
 
 of a neutral vessel for the mere intention to enter a blockaded 
 port, unconnected with any fact. In the above-cited cases, 
 the fact of sailing was coupled with the intention, and the 
 condemnation was thus founded upon a supposed actual 
 breach of the blockade. Sailing for a blockaded port, know- 
 ing it to be blockaded, was there construed into an attempt to 
 enter that port, and was, therefore, adjudged a breach of 
 blockade from the departure of the vessel. But the fact of 
 clearing out for a blockaded port is, in itself, innocent, unless 
 it be accompanied with a knowledge of the blockade. The 
 right to treat the vessel as an enemy, is declared by Vattel 
 (liv. iii. sect. 177), to be founded on the attempt to enter ; 
 and certainly this attempt must be made by a person knowing 
 the fact. The import of the treaty, and of the instructions 
 issued in pursuance of the treaty, is, that a vessel cannot be 
 placed in the situation of one having a notice of the blockade, 
 until she is warned off. They gave her a right to inquire of 
 the blockading squadron, if she had not previously received 
 this warning from one capable of giving it, and consequently 
 dispensed with her making that inquiry elsewhere. A neutral 
 vessel might thus lawfully sail for a blockaded port, knowing 
 it to be blockaded ; and being found sailing towards such a 
 port would not constitute an attempt to break the blockade, 
 unless she should be actually warned off (6). 
 
 Where an enemy's port was declared in a state of blockade 517. 
 by notification, and at the same time when the notification Blockading 
 was issued, news arrived that the blockading squadron had driven off 
 been driven off by a superior force of the enemy, the blockade 
 was held by the Prize Court to be null and defective from the 
 beginning, in the main circumstance that is essentially neces- 
 sary to give it legal operation ; and that it would be unjust to 
 hold neutral vessels to the observance of a notification, ac- 
 companied by a circumstance that defeated its effect. This 
 case was, therefore, considered as independent of the pre- 
 sumption arising from notification in other instances ; the 
 notification being defeated, it must have been shown that the 
 actual blockade was again resumed, and the vessel would have 
 
 (b) Filzsimmons v. The Newport Insurance Company, 4 Cranch, 185. Mr. 
 Merry's Letter to Mr. Secretary Madison, 12th April, 1804. Wheatou's Rep. 
 vol. iii. Appendix, p. 11.
 
 602 RIGHTS OF WAR AS TO NEUTRALS. 
 
 been entitled to a warning, if any such blockade had existed 
 when she arrived off the port. The mere act of sailing for 
 the port, under the dubious state of the actual blockade at the 
 time, was deemed insufficient to fix upon the vessel the 
 penalty for breaking the blockade (c). 
 
 518 j n ^} le aboyg case, a question was raised whether the notifi- 
 
 New notice 
 
 necessary cation which had issued was not still operative ; but the 
 case UCh a cour ^ was f opinion that it could not be so considered, and 
 that a neutral power was not obliged, under such circum- 
 stances, to presume the continuance of a blockade, nor to act 
 upon a supposition that the blockade would be resumed by 
 any other competent force. But in a subsequent case, where 
 it was suggested that the blockading squadron had actually 
 returned to its former station off the port, in order to renew 
 the blockade, a question arose whether there had been that 
 notoriety of the fact, arising from the operation of time, or 
 other circumstances, which must be taken to have brought 
 the existence of the blockade to the knowledge of the parties. 
 Among other modes of resolving this question, a prevailing 
 consideration would have been the length of time, in propor- 
 tion to the distance of the country from which the vessel 
 sailed. But as nothing more came out in evidence than that 
 the squadron came off the port on a certain day, it was held 
 that this would not restore a blockade which had been thus 
 effectually raised, but that it must be renewed again by noti- 
 fication, before foreign nations could be affected with an 
 obligation to observe it. The squadron might return off the 
 port with different intentions. It might arrive there as a 
 fleet of observation merely, or for the purpose of only a 
 qualified blockade. On the other hand, the commander 
 might attempt to connect the two blockades together ; but 
 this is what could not be done ; and, in order to revive the 
 former blockade, the same form of communication must have 
 been observed de novo that is necessary to establish an 
 original blockade (d). 
 
 519. 3. Besides the knowledge of the party, some act of viola- 
 of ^okfion ti n i fl essential to a breach of blockade ; as either going in 
 
 (c) The Triheten, 6 C. Rob. 65. 
 
 (d) The Ho/nung, Ibid. 312.
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 or coming out of the port with a cargo laden after the com- 
 mencement of the blockade (e). 
 
 Tims, by the edict of the States-General of Holland, of 
 1630, relative to the blockade of the ports of Flanders, it was 
 ordered that the vessels and goods of neutrals which should 
 be found going in or coming out of the said ports, or so near 
 thereto as to show beyond a doubt that they were endeavouring 
 to run into them ; or which, from the documents on board, 
 should appear bound to the said ports, although they should 
 be found at a distance from them, should be confiscated, 
 unless they should, voluntarily, before coming in sight of or 
 being chased by the Dutch ships of war, change their intention, 
 wliile the thing was yet undone, and alter their course. 
 Bynkershoek, in commenting upon this part of the decree, 
 defends the reasonableness of the provision which affects 
 vessels found so near to the blockaded ports as to show 
 beyond a doabt that they were endeavouring to run into them, 
 upon the ground of legal presumption, with the exception of 
 extreme and well-proved necessity only. Still more reason- 
 able is the infliction of the penalty of confiscation, where the 
 intention is expressly avowed by the papers found on board. 
 The third article of the same edict also subjected to confisca- 
 tion such vessels and their cargoes as should come out of the 
 said ports, not having been forced into them by stress of 
 weather, although they should be captured at a distance from 
 them, unless they had, after leaving the enemy's port, per- 
 formed their voyage to a port of their own country, or to some 
 other neutral or free port, in which case they should be exempt 
 from condemnation ; but if, in coming out of the said ports 
 of Flanders, they should be pursued by the Dutch ships of 
 war, and chased into another port, such as their own, or that 
 of their destination, and found on the high seas coming out of 
 such port, in that case they might be captured and condemned. 
 Bynkershoek considers this provision as distinguishing the 
 case of a vessel having broken the blockade, and afterwards 
 terminated her voyage by proceeding voluntarily to her destined 
 port, and that of a vessel chased and compelled to take 
 refuge ; which latter might still be captured after leaving the 
 
 (e) The Betsey, 1 C, Rob. 93. 
 
 603
 
 604 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 port in which she had taken refuge. And in conformity with 
 these principles are the more modern law and practice (/). 
 
 519a. 
 
 Intent to 
 
 violate 
 
 blockade. 
 
 519 b. 
 
 Justifiable 
 entry into 
 a blockaded 
 port. 
 
 The mere intention to violate a blockade is not a sufficient ground 
 for condemnation ; the intention must be coupled with some act showing 
 an attempt to enter the port (g). It is not the mere mental design that 
 subjects the goods to confiscation, but the overt act of starting for, or 
 proceeding towards, the prohibited port with the knowledge that it is 
 blockaded, and continuing that course up to the time of capture (h). 
 The intent, however, must exist in order to constitute the delictum, and 
 it must be gathered from the circumstances of each case. It may be 
 inferred from the bills of lading, the letters and papers on board, the 
 acts and words of the owners and charterers, or the spoliation of papers. 
 Delay in sailing after complete loading, or a change of course in order to 
 avoid a man-of-war, afford good grounds for suspicion (i). Every dis- 
 semblance in the ship's papers will be regarded as intended to conceal 
 what could not safely be disclosed, and to afford evidence that the 
 destination of the vessel is falsified (A;). The circumstance that the 
 master was also master of a ship condemned before, will be noticed by 
 the Court (I). But if the intention be bond fide abandoned at the time 
 of capture, the ship will not be condemned ; only in this case very 
 clear and satisfactory proof of a complete abandonment of the intent will 
 be required (in). Since a blockade exposes ships intending to enter the 
 port to the risk of confiscation, a shipowner who before the blockade 
 contracted to carry goods to the port (unless restrained by princes, 
 &c.), is entitled to throw up his contract when the port becomes 
 blockaded (n). 
 
 The stringency of the rule prohibiting vessels from entering a 
 blockaded port is only relaxed when the ship attempting to enter does 
 so from reasons of necessity. She may be out of provisions or water, or 
 she may be in a leaking condition, and no other port be of easy access. 
 The case, however, must be one of absolute and uncontrollable neces- 
 sity ; and this must be established beyond reasonable doubt. " Nothing 
 less," says Lord Stowell, "than an uncontrollable necessity, which 
 admits of no compromise, and cannot be resisted," will be held a justifi- 
 cation of the offence. Any rule less stringent than this would open 
 the door to all sorts of fraud. Attempted evasions of the blockade 
 
 (/) Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 11. The Wdvaart Van 
 Pillaw, 2 C. Rob. 138 ; The Juffrow Maria Schroe.der, 3 C. Rob. 147. 
 
 (g) [Fitzsimons v. Newport Ins. Co., 4 Cranch, 199). 
 
 (h) [The John Gilpin, Blatchford, Prize k Cases, 29l, Halleck, ch. 23, 23. 
 Yeaton v. Fry, 9 Cranch, 446.] 
 
 (i) [The Circassian, 2 Wallace, 135 ; The Bargorry, ibid. 474 ; The Andro- 
 meda, ibid. 482 ; The Cornelius, 3 Wallace, 214.] 
 
 (k) [The Louisa Agnes, Blatchford, Prize Cases, 112 ; The Mentor, Edw. 
 207.] 
 
 (I) [The Diana, 7 Wallace, 360 ; The William H. Northrop, Blatchford, 
 Prize Cases, 235.] 
 
 (m) [The John Gilpin, Blatchford, Prize Cases, 291.] 
 
 (n) [Geipel v. Smith, L. R. 7 Q. B. 404.]
 
 RIGHTS OF WAR AS TO NEUTRALS. 605 
 
 would be excused upon pretences of distress and danger not warranted 
 by the facts, but the falsity of which it would be difficult to expose (o). 
 
 The general, but not the universal rule, is, that when a ship is con- 519 c. 
 demned for breach of blockade the cargo follows the same fate. The Cargo on 
 owners of the cargo are concluded by the act of the master, even though ^"^j^ f or 
 the breach of blockade was without their privity, or contrary to their ij reac h of 
 wishes. When the owners of the cargo knew, or might have known, blockade, 
 of the existence of the blockade when the shipment was made, the 
 inference of law is irresistible that they were privy to violating the 
 blockade. The master is to be treated as the agent for the cargo as well 
 as for the ship (p). 
 
 With respect to violating a blockade by coming out with a 520. 
 cargo, the time of shipment is very material ; for although it of^fockade 
 might be hard to refuse a neutral liberty to retire with a b y egress. 
 cargo already laden, and by that act already become neutral 
 property ; yet, after the commencement of a blockade, a 
 neutral cannot be allowed to interpose, in any way, to assist 
 the exportation of the property of the enemy (q). A neutral 
 ship departing can only take away a cargo bond fide purchased 
 and delivered before the commencement of the blockade ; if 
 she afterwards take on board a cargo, it is a violation of the 
 blockade. But where a ship was transferred from one neutral 
 merchant to another in a blockaded port, and sailed out 
 in ballast, she was determined not to have violated the 
 blockade (r). So where goods were sent into the blockaded 
 port before the commencement of the blockade, but reshipped 
 by order of the neutral proprietor, as found unsaleable, during 
 the blockade, they were held entitled to restitution. For the 
 same rule which permits neutrals to withdraw their vessels 
 from a blockaded port extends also, with equal justice, to 
 merchandise sent in before the blockade, and withdrawn bond 
 fide by the neutral proprietor (s). 
 
 After the commencement of a blockade, a neutral is no 521 - 
 longer at liberty to make any purchase in that port. Thus, O f goods in 
 where a ship which had been purchased by a neutral of the ablockaded 
 
 (o) [The Diana, 7 Wallace, 369 ; The Major JBarbour, Blatchford, Prize 
 Cases, 167 ; The Forest King, ibid. 2 ; T/ie Panaghia Rlwmba, 12 Moo. P. C. 
 168.] 
 
 (p) (The Panaghia Rhomba (Baltazzi v. Ryder], 12 Moo. P. C. 168.] 
 
 (7) The Betsey, 1 C. Rob. 93. 
 
 (?) The Vrow Judith, ibid. 150. 
 
 (.9) The Potsdam, 4 C. Rob. 89 ; Olivera v. Union Insurance Company, 
 3 Wheaton, 183.
 
 606 RIGHTS OF WAR AS TO NEUTRALS. 
 
 enemy in a blockaded port, and sailed on a voyage to the 
 neutral country, had been driven by stress of weather into a 
 belligerent port, where she was seized, she was held liable to 
 condemnation under the general rule. That the vessel had 
 been purchased out of the proceeds of the cargo of another 
 vessel, was considered as an unavailing circumstance on a 
 question of blockade. If the ship has been purchased in a 
 blockaded port, that alone is the illegal act, and it is perfectly 
 immaterial out of what funds the purchase was effected. 
 Another distinction taken in argument was, that the vessel 
 had terminated her voyage, and therefore that the penalty 
 would no longer attach. But this was also overruled, because 
 the port into which she had been driven was not represented 
 as forming any part of her original destination. It was there- 
 fore impossible to consider this accident as any discontinuance 
 of the voyage, or as a defeasance of the penalty which had 
 been incurred (t). 
 
 522. A maritime blockade is not violated by sending goods to the 
 
 canal blockaded port, or by bringing them from the same, through 
 
 navigation. $_ ie interior canal navigation or land carriage of the country. 
 A blockade may be of different descriptions. A mere mari- 
 time blockade, effected by a force operating only at sea, can 
 have no operation upon the interior communications of the 
 port. The legal blockade can extend no further than the 
 actual blockade can be applied. If the place be not invested 
 on the land side, its interior communications with other ports 
 cannot be cut off. If the blockade be rendered imperfect by 
 this rule of construction, it must be ascribed to its physical 
 inadequacy, by which the extent of its legal pretensions is 
 unavoidably limited (u). But goods shipped in a river, having 
 been previously sent in lighters along the coast from the 
 blockaded port, with the ship under charter-party proceeding 
 also from the blockaded port in ballast to take them on board, 
 were held liable to confiscation. This case is very different 
 from the preceding, because there the communication had 
 been by inland navigation, which was in no manner and in 
 no part of it subject to the blockade (a?). 
 
 (t) The Juffrow Maria Schroeder, 4 C. Eob. note. 
 
 (u) The Comet, Edw. Ad. 32 ; [The Peterlio/, 5 Wallace, 35]. 
 
 (x) The Neutralitet, 3 C. Rob. 297 ; The Stert, 4 ibid. 65.
 
 RIGHTS OF WAR AS TO NEUTRALS. 607 
 
 The offence incurred by a breach of blockade generally re- 
 mains during the voyage ; but the offence never travels on of the 
 with the vessel further than to the end of the return voyage, offence> 
 although if she is taken in any part of that voyage, she is 
 taken in delicto. This is deemed reasonable, because no 
 other opportunity is afforded to the belligerent cruisers to 
 vindicate the violated law. But where the blockade has been 
 raised between the time of sailing and the capture, the penalty 
 does not attach ; because the blockade being gone, the neces- 
 sity of applying the penalty to prevent future transgression no 
 longer exists. When the blockade is raised, a veil is thrown 
 over everything that has been done, and the vessel is no 
 longer taken in delicto. The delictum may have been com- 
 pleted at one period, but it is by subsequent events done 
 away (y). 
 
 The right of visitation and search of neutral vessels at sea . 524. 
 is a belligerent right, essential to the exercise of the right of visitation 
 capturing enemy's property, contraband of war, and vessels and search - 
 committing a breach of blockade. Even if the right of cap- 
 turing enemy's property be ever so strictly limited, and the 
 rule of free ships free goods be adopted, the right of visitation 
 and search is essential, in order to determine whether the 
 ships themselves are neutral, and documented as such, accord- 
 ing to the law of nations and treaties ; for, as Bynkershoek 
 observes, " It is lawful to detain a neutral vessel, in order to 
 ascertain, not by the flag merely, which may be fraudulently 
 assumed, but by the documents themselves on board, whether 
 she is really neutral." Indeed, it seems that the practice of 
 maritime captures could not exist without it. Accordingly 
 the text writers generally concur in recognising the existence 
 of this right (z). 
 
 The international law on this subject is ably summed up by 525. 
 Sir W. Scott, in the case of The Maria, where the exercise search Ind 
 
 convoy. 
 
 (y) The Welvaart Van Pillaw, 2 C. Rob. 128 ; The Lisette, 6 C. Rob. 387. 
 As to how far the act of the master binds the shipowner in cases of breach of 
 blockade, see the cases collected in Wheaton's Reports, vol. ii. Appendix, 
 pp. 3640. [The Wren, 6 Wallace, 582.] 
 
 (z) Bynkershoek, Qua?st. Jur. Pub. lib. i. cap. 14. Vattel, Droit des 
 Gens, liv. iii. ch. 7, 114. Martens, Precis, &c., liv. viii. ch. 7, 317, 321. 
 Galliani, dei Doveri de Principi Neutrali, &c., p. 458. Lampredi, Del Coni- 
 mercio de Popoli Neutrali, &c., p. 185. Kliiber, Droit des Gens Moderne de 
 1'Europe, 293.
 
 608 RIGHTS OF WAR AS TO NEUTRALS. 
 
 of the right was attempted to be resisted by the interposition 
 of a convoy of Swedish ships of war. In delivering the 
 judgment of the High Court of Admiralty in that memorable 
 case, this learned civilian lays down the three following 
 principles of law : 
 
 52e - 1. That the right of visiting and searching merchant ships 
 on the high seas, whatever be the ships, the cargoes, the 
 destinations, is an incontestable right of the lawfully commis- 
 sioned 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 destination 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 right 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." 
 
 2. That the authority of the neutral sovereign being forcibly 
 interposed cannot legally vary the rights of a lawfully commis- 
 sioned belligerent cruiser. " 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 any other 
 pledge which they may agree mutually to accept. But surely 
 no sovereign can legally compel the acceptance of such a
 
 RIGHTS OF WAR AS TO NEUTRALS. 609 
 
 security by more force. The only security known to the law 
 of nations upon this subject, independently of all special 
 covenant, is the right of personal visitation and search, to be 
 exercised by those who have the interest in making it." 
 
 3. That the penalty for the violent contravention of this 
 right is the confiscation of the property so withheld from 
 visitation and search. " For the proof of this I need only 
 refer to Vattel, one of the most correct, and certainly not the 
 least indulgent, of modern professors of public law. In 
 book iii. c. 7, sect. 114, he expresses himself thus : ' On ne 
 peut empecher le transport des effets de contrebande, si Ton 
 ne visite pas les vaisseaux neutres. On est done en droit de 
 les visiter. Quelques nations puissantes ont refuse en diffe- 
 rents temps de se soumettre a cette visite. Aujourd'hui un 
 vaisseau neutre, qui refuseroit de souifrir la visite, se feroit 
 condamner par cela seul, comme etant de bonne prise.' Vattel 
 is here to be considered not as a lawyer merely delivering an 
 opinion, but as a witness asserting a fact the fact that such 
 is the existing practice of modern Europe. Conformably to 
 this principle, we find in the celebrated French ordinance of 
 1681, now in force, article 12, ' That every vessel shall be 
 good prize in case of resistance and combat ; ' and Valin, in 
 his smaller Commentary, p. 81, says expressly, that, although 
 the expression is in the conjunctive, yet that the resistance 
 alone is sufficient. He refers to the Spanish Ordinance, 1718, 
 evidently copied from it, in which it is expressed in the dis- 
 junctive, ' in case of resistance or combat.' And recent 
 instances are at hand and within view, in which it appears 
 that Spain continues to act upon this principle. The first 
 time it occurs to my notice on the inquiries I have been able 
 to make in the institutes of our own country respecting 
 matters of this nature, except what occurs in the Black Book 
 of the Admiralty, is in the Order of Council, 1664, art. 12, 
 which directs, ' That when any ship, met withal by the royal 
 navy or other ship commissionated, shall fight or make resist- 
 ance, the ship and goods shall be adjudged lawful prize.' A 
 similar article occurs in the proclamation of 1672. I am, 
 therefore, warranted in saying, that it was the rule, and the 
 undisputed rule, of the British Admiralty. I will not say 
 that the rule may not have been broken in upon, in some
 
 610 RIGHTS OF WAR AS TO NEUTRALS. 
 
 instances, by considerations of comity or of policy, by which 
 it may be fit that the administration of this species of law 
 should be tempered in the hands of those tribunals which have 
 a right to entertain and apply them ; for no man can deny 
 that a State may recede from its extreme rights, and that its 
 supreme councils are authorized to determine in what cases it 
 may be fit to do so, the particular captor having, in no case, 
 any other right and title than what the State itself would 
 possess under the same facts of capture. But I stand with 
 confidence upon all principles of reason upon the distinct 
 authority of Vattel, upon the institutes of other great mari- 
 time countries, as well as those of our own country, when I 
 venture to lay it down that, by the law of nations, as now 
 understood, a deliberate and continued resistance to search, on 
 the part of a neutral vessel, to a lawful cruiser, is followed by 
 the legal consequence of confiscation " (a). 
 
 527. The judgment of condemnation pronounced in this case was 
 neutrality followed by the treaty of armed neutrality, entered into by the 
 of 1800. Baltic powers, in 1800, which league was dissolved by the 
 death of the Emperor Paul ; and the points in controversy 
 between these powers and Great Britain were finally adjusted 
 by the convention of 5th June, 1801. By the 4th article of 
 this convention, the right of search as to merchant vessels 
 , sailing under neutral convoy was modified, by limiting it to 
 public ships of war of the belligerent party, excluding private 
 armed vessels. Subject to this modification, the pretension 
 of resisting by means of convoy the exercise of the belligerent 
 right of search, was surrendered by Russia and the other 
 northern powers, and various regulations were provided to 
 prevent the abuse of that right to the injury of neutral com- 
 merce. As has already been observed, the object of this treaty 
 is expressly declared by the contracting parties, in its pre- 
 amble, to be the settlement of the differences which had grown 
 out of the armed neutrality by "an invariable determination 
 of their principles upon the rights of neutrality in their appli- 
 cation to their respective monarchies." The 8th article also 
 provides that " the principles and measures adopted by the 
 present Act, shall be alike applicable to all the maritime wars 
 
 (a) The Maria, I C. Rob. 340.
 
 RIGHTS OF WAR AS TO NEUTRALS. 611 
 
 in which one of the two powers may be engaged, whilst the 
 other remains neutral. These stipulations shall consequently 
 be regarded as permanent, and shall serve as a constant rule 
 for the contracting parties in matters of commerce and 
 navigation " (b}. 
 
 In the case of The Maria, the resistance of the convoying j-<J ci bi e * 
 ship was held to be a resistance of the whole fleet of merchant resistance 
 vessels under convoy, and subjected the whole to confiscation. e n e ^ y 
 This was a case of neutral property condemned for an at- master, 
 tempted resistance by a neutral armed vessel to the exercise 
 of the right of visitation and search, by a lawfully commis- 
 sioned belligerent cruiser. But the forcible resistance by an 
 enemy master will not, in general, affect neutral property laden 
 on board an enemy's merchant vessel ; for an attempt on his 
 part to rescue his vessel from the possession of the captor, is 
 nothing more than the hostile act of a hostile person, who has 
 a perfect right to make such an attempt. " If a neutral 
 master," says Sir W. Scott, " attempts a rescue, or to with- 
 draw himself from search, he violates a duty which is imposed 
 upon him by the law of nations, to submit to search, and to 
 come in for inquiry as to the property of the ship or cargo ; 
 and if he violates this obligation by a recurrence to force, the 
 consequence will undoubtedly reach the property of his owner ; 
 and it would, I think, extend also to the whole property 
 intrusted to his care, and thus fraudulently attempted to be 
 withdrawn from the operation of the rights of war. With an 
 enemy master the case is very different ; no duty is violated 
 by such an act on his part lupum auribus teneo, and if he 
 can withdraw himself he has a right so to do " (c). 
 
 The question how far a neutral merchant has a right to lade R;f h ^f' a 
 his goods on board an armed enemy vessel, and how far his neutral to 
 property is involved in the consequences of resistance by the 
 enemy master, was agitated both in the British and American ar ""^d 
 
 enemy 
 vessel. 
 
 (V) The question arising out of the case of the Swedish convoy gave rise to 
 sveral instructive polemic essays. The judgment of Sir W. Scott was attacked 
 
 by Professor J. F. W". Schlegel, of Copenhagen, in a Treatise on the Visitation 
 
 hips under Convoy, transl. London, 180 
 Dr. Crokein "Remarks on M. Schlegel's Work," 1801. See, -also, "Letters 
 
 of Neutral Ships under Convoy, transl. London, 1801 ; and vindicated by 
 
 of Sulpicius on the Northern Confederacy," London, 1801. "Substance of 
 the Speech of Lord Grenville in the House of Lords, November 13, 1801," 
 London, 1802. "Wheaton's Hist. Law of Nations, pp. 390420. 
 (c\ The Catharina Elizabeth, 5 C. Rob. 232. 
 
 R R 2
 
 612 RIGHTS OF WAR AS TO NEUTRALS. 
 
 prize courts, during the last war between Great Britain and 
 the United States. In a case adjudged by the Supreme Court 
 of the United States, in 1815, it was determined, that a 
 neutral had a right to charter and lade his goods on board a 
 belligerent armed merchant ship, without forfeiting his 
 neutral character, unless he actually concurred and partici- 
 pated in the enemy master's resistance to capture (d). Con- 
 temporaneously with this decision of the American court, 
 Sir W. Scott held directly the contrary doctrine, and decreed 
 salvage for the recapture of neutral Portuguese property, 
 previously taken by an American cruiser from on board an 
 armed British vessel, upon the ground that the American 
 prize courts might justly have condemned the property (e). 
 In reviewing its former decision, in a subsequent case ad- 
 judged in 1818, the American court confirmed it ; and, 
 alluding to the decisions in the English High Court of Admi- 
 ralty, stated, that if a similar case should again occur in that 
 court, and the decisions of the American court should in the 
 meantime have reached the learned judge, he would be called 
 upon to acknowledge that the danger of condemnation in the 
 United States courts was not as great as he had imagined. 
 In determining the last-mentioned case, the American court 
 distinguished it both from those where neutral vessels were 
 condemned for the unneutral act of the convoying vessel, and 
 those where neutral vessels had been condemned for placing 
 themselves under enemy's convoy. With regard to the first 
 class of cases, it was well known that they originated in the 
 capture of the Swedish convoy, at the time when Great Britain 
 had resolved to throw down the glove to all the world, on the 
 contested principles of the northern maritime confederacy. 
 But, independently of this, there were several considerations 
 which presented an obvious distinction between both classes 
 of cases and that under consideration. A convoy was an 
 association for a hostile object. In undertaking it, a State 
 spreads over the merchant vessels an immunity from search 
 which belongs only to a national ship ; and by joining a con- 
 voy, every individual vessel puts off her pacific character, and 
 
 (d) The Nereide, 9 Cranch, 388. 
 
 (e) The Fanny, 1 Dods. Ad. 443.
 
 RIGHTS OF WAR AS TO NEUTRALS. 613 
 
 undertakes for the discharge of duties which belong only to 
 the military marine. If, then, the association he voluntary, 
 the neutral, in suffering the fate of the entire convoy, has 
 Only to regret his own folly in wedding his fortune to theirs ; 
 or if involved in the resistance of the convoying ship, he 
 shares the fate to which the leader of his own choice is liable 
 in case of capture (/). 
 
 The Danish government issued, in 1810, an ordinance relating 530. 
 to captures, which declared to be good and lawful prize " such y^.* 
 vessels as, notwithstanding their flag is considered neutral, as under ^ 
 well with regard to Great Britain as the powers at war with convoy 8 
 the same nation, still, either in the Atlantic or Baltic, have llal)le to n 
 
 capture ? 
 made use of English convoy." Under this ordinance, many 
 
 American neutral vessels were captured, and, with their 
 cargoes, condemned in the Danish prize courts for offending 
 against its provisions. In the course of the discussions which 
 subsequently took place between the American and Danish 
 governments respecting the legality of these condemnations, 
 the principles upon which the ordinance was grounded were 
 questioned by the United States government, as inconsistent 
 with the established rules of international law. It was insisted 
 that the prize ordinances of Denmark, or of any other par- 
 ticular State, could not make or alter the general law of 
 nations, nor introduce a new rule binding on neutral powers. 
 The right of the Danish monarch to legislate for his own 
 subjects and his own tribunals, was incontestible ; but before 
 his edicts could operate upon foreigners carrying on their 
 commerce upon the seas, which are the common property of 
 all nations, it must be shown that they were conformable to 
 the law by which all are bound. It was, however, unneces- 
 sary to suppose, that in issuing these instructions to its 
 cruisers, the Danish government intended to do anything 
 more than merely to lay down rules of decision for its own 
 tribunals, conformable to what that government understood 
 to be just principles of public law. But the observation be- 
 came important when it was considered, that the law of 
 nations nowhere existed in a written code accessible to all, 
 and to whose authority all deferred ; and that the present 
 question regarded the application of a principle (to say the 
 (/) The Atalanta, 3 Wheatuii, 409.
 
 614 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 531. 
 
 Captures 
 under 
 Danish 
 ordinance 
 of 1810. 
 
 532. 
 
 Argument 
 of the 
 American 
 Commis- 
 sioners. 
 
 least) of doubtful authority, to the confiscation of neutral 
 property for a supposed offence committed, not by the owner, 
 but by his agent the master, without the knowledge or orders 
 of the owner, under a belligerent edict, retrospective in its 
 operation, because unknown to those whom it was to affect. 
 
 The principle laid down in the ordinance, as interpreted by 
 the Danish tribunals was, that the fact of having navigated 
 under enemy's convoy is, per se, a justifiable cause, not of 
 capture merely, but of condemnation in the courts of the 
 other belligerent ; and that, without inquiring into the proofs 
 of proprietary interest, or the circumstances and motives 
 under which the captured vessel had joined the convoy, or 
 into the legality of the voyage, or the innocence of her con- 
 duct in other respects. A belligerent pretension so harsh, 
 apparently so new, and so important in its consequences, 
 before it could be assented to by the neutral States, must be 
 rigorously demonstrated by the authority of the writers on 
 public law, or shown to be countenanced by the usage of 
 nations. Not one of the numerous expounders of that law 
 even mentioned it ; no belligerent nation had ever before 
 acted upon it ; and still less could it be asserted that any 
 neutral nation had ever acquiesced in it. Great Britain, 
 indeed, had contended that a neutral State had no right to 
 resist the exercise of the belligerent claim of visitation and 
 search by means of convoys, consisting of its own ships of 
 war. But the records even of the British Courts of Admi- 
 ralty might be searched in vain for a precedent to support the 
 principle maintained by Denmark, that the mere fact of 
 having sailed under a belligerent convoy is, in all cases and 
 under all circumstances, conclusive cause of condemnation. 
 
 The American vessels in question were engaged in their 
 accustomed lawful trade, between Russia and the United 
 States ; they were unarmed, and made no resistance to the 
 Danish cruisers ; they were captured on the return voyage, 
 after having passed up the Baltic and been subjected to 
 examination by the Danish cruisers and authorities ; and were 
 condemned under an edict which was unknown, and conse- 
 quently, as to them, did not exist when they sailed from 
 Cronstadt, and which, unless it could be strictly shown to be 
 consistent with the pre-existing law of nations, must be con-
 
 RIGHTS OF WAR AS TO NEUTRALS. 615 
 
 sidorcd as an unauthorized measure of retrospective legislation. 
 To visit upon neutral merchants and mariners extremely 
 penal consequences from an act, which they had reason to 
 believe to be innocent at the time, and which is not pretended 
 to be forbidden by a single treaty or writer upon public law, 
 by the general usage of nations, or even by the practice of 
 any one belligerent, or the acquiescence of any one neutral 
 State, must require something more than a mere resort to 
 the supposed analogy of other acknowledged principles of 
 international law, but from which it would be vain to attempt 
 to deduce that now in question as a corollary. 
 
 Being found in company with an enemy's convoy might, 
 indeed, furnish a presumption that the captured vessel and 
 cargo belonged to the enemy, in the same manner as goods 
 taken in an enemy's vessel are presumed to be enemy's pro- 
 perty until the contrary is proved ; but this presumption is 
 not of that class of presumptions called presumptiones juris et 
 de jure, which are held to be conclusive upon the party, and 
 which he is not at liberty to controvert. It is a slight pre- 
 sumption only, which will readily yield to countervailing proof. 
 One of the proofs which, in the opinion of the American 
 negotiator, ought to have been admitted by the prize tribunal 
 to countervail this presumption, would have been evidence 
 that the vessel had been compelled to join the convoy ; or 
 that she had joined it, not to protect herself from examination 
 by Danish cruisers, but against others, whose notorious 
 conduct and avowed principles render it certain, that captures 
 by them would inevitably be followed by condemnation. It 
 followed, then, that the simple fact of having navigated under 
 British convoy could be considered as a ground of suspicion 
 only, warranting the captors in sending in the captured vessel 
 for further examination, but not constituting in itself a con- 
 clusive ground of confiscation. 
 
 Indeed it was not perceived how it could be so considered, 
 upon the mere ground of its interfering with the exercise of 
 the belligerent pretension of visitation and search, by a State, 
 which, when neutral, had asserted the right of protecting its 
 private commerce against belligerent visitation and search by 
 armed convoys of its own public ships. 
 
 Nor could the consistency of the Danish government, in 533.
 
 616 RIGHTS OF WAR AS TO NEUTRALS. 
 
 this respect, be vindicated, by assuming a distinction between 
 the doctrine maintained by Denmark, when neutral, against 
 Great Britain, from that which she sought, as a belligerent, 
 to enforce against America. Why was it that navigating 
 under the convoy of a neutral ship of war was deemed a con- 
 clusive cause of condemnation ? It was because it tended to 
 impede and defeat the belligerent right of search to render 
 every attempt to exercise this lawful right a contest of violence 
 to disturb the peace of the world, and to withdraw from the 
 proper forum the determination of such controversies by 
 forcibly preventing the exercise of its jurisdiction. 
 
 The mere circumstance of sailing in company with a bellige- 
 rent convoy had no such effect ; being an enemy, the bellige- 
 rent had a right to resist. The masters of the vessels under 
 his convoy could not be involved in the consequences of that 
 resistance, because they were neutral, and had not actually 
 participated in the resistance. They could no more be in- 
 volved in the consequences of a resistance by the belligerent, 
 which is his own lawful act, than is the neutral shipper of 
 goods on board a belligerent vessel for the resistance of the 
 master of that vessel, or the owner of neutral goods found in 
 a belligerent fortress for the consequences of its resistance. 
 
 The right of capture in war extends only to things actually 
 belonging to the enemy, or such as are considered as con- 
 structively belonging to him, because taken in a trade prohi- 
 bited by the laws of war, such as contraband or property taken 
 in breach of blockade, and other analogous cases ; but the pro- 
 perty now in question was neither constructively nor actually 
 the property of the enemy of Denmark. It was not pretended 
 that it was actually his property, and it could not be shown to 
 have been constructively his. If, indeed, these American 
 vessels had been armed ; if they had thus contributed to 
 augment the force of the belligerent convoy ; or if they had 
 actually participated in battle with the Danish cruisers, they 
 would justly have fallen by the fate of war, and the voice of the 
 American government would never have been raised in their 
 favour. But they were, in fact, unarmed merchantmen ; and 
 far from increasing the force of the British convoying squadron, 
 their junction tended to weaken it by expanding the sphere of 
 its protecting duty; and instead of participating in the enemy's
 
 RIGHTS OF WAR AS TO NEUTRALS. 617 
 
 resistance, in fact there was no battle and no resistance, and 
 the merchant vessels fell a defenceless prey to the assailants. 
 
 The illegality of the act on the part of the neutral masters, 534. 
 for which the property of their owners had been confiscated, 
 must then be sought for in a higher source, and must be re- 
 ferred back to the circumstance of their joining the convoy. 
 But why should this circumstance be considered illegal, any 
 more than the fact of a neutral taking shelter in a belligerent 
 port, or under the guns of a belligerent fortress which is sub- 
 sequently invested and taken ? The neutral cannot, indeed, 
 seek to escape from visitation and search by unlawful means, 
 either of force or fraud ; but if, by the use of any lawful and 
 innocent means, he may escape, what is to hinder his resort- 
 ing to such means for the purpose of avoiding a proceeding so 
 vexatious ? The belligerent cruisers and prize courts had not 
 always been so moderate and just as to render it desirable for 
 the neutral voluntarily to seek for an opportunity of being 
 examined and judged by them. Upon the supposition, indeed, 
 that justice was administered promptly, impartially, and purely 
 in the prize tribunals of Denmark, the American shipmasters 
 could have had no motive to avoid an examination by Danish 
 cruisers, since their proofs of property were clear, their voyages 
 lawful, and they were not conscious of being exposed to the 
 slightest hazard of condemnation in these tribunals. Indeed, 
 some of these vessels had been examined on their voyage up 
 the Baltic, and acquitted by the Danish courts of admiralty. 
 "Why, then, should a guilty motive be imputed to them, when 
 their conduct could be more naturally explained by an innocent 
 one? Surely, in the multiplied ravages to which neutral 
 commerce was then exposed on every sea, from the sweeping 
 decrees of confiscation fulminated by the great belligerent 
 powers, the conduct of these parties might be sufficiently ac- 
 counted for, without resorting to the supposition that they 
 meant to resist or even to evade the exercise of the belligerent 
 rights of Denmark. 
 
 Even admitting, then, that the neutral American had no 
 right to put himself under convoy or in order to avoid the 
 exercise of the right of visitation and search by a, friend, as 
 Denmark professed to be, he had still a perfect right to defend 
 himself against his enemy, as France had shown herself to be,
 
 618 RIGHTS OF WAR AS TO NEUTRALS. 
 
 by her conduct, and the avowed principles upon which she had 
 declared open war against all neutral trade. Denmark had a 
 right to capture the commerce of her enemy, and for that 
 purpose to search and examine vessels under the neutral flag, 
 whilst America had an equal right to protect her commerce 
 against French capture by all the means allowed by the ordi- 
 nary laws of war between enemies. The exercise of this 
 perfect right could not legally be affected by the circumstance 
 of the war existing between Denmark and England, or by the 
 alliance between Denmark and France. America and England 
 were at peace. The alliance between Denmark and France 
 was against England, not against America ; and the Danish 
 government, which had refused to adopt the decrees of Berlin 
 and Milan as the rule of its conduct towards neutrals, could 
 not surely consider it culpable on the part of the American 
 shipmasters to have defended themselves against the operation 
 of these decrees by every means in their power. If the use of 
 any of these means conflicted in any degree with the belligerent 
 rights of Denmark, that was an incidental consequence, which 
 could not be avoided by the parties without sacrificing their 
 incontestible right of self-defence. 
 
 535. But it might perhaps be said, that as resistance to the right 
 
 of search is, by the law and usage of nations, a substantive 
 ground of condemnation in the case of the master of a single 
 ship, still more must it be so, where many vessels are asso- 
 ciated for the purpose of defeating the exercise of the same 
 right. 
 
 In order to render the two cases stated perfectly analogous, 
 there must have been an actual resistance on the part of the 
 vessels in question, or, at least, on the part of the enemy's 
 fleet, having them at the time under its protection, so as to 
 connect them inseparably with the acts of the enemy. Here 
 was no actual resistance on the part of either, but only a con- 
 structive resistance on the part of the neutral vessels, implied 
 from the fact of their having joined the enemy's convoy. This, 
 however, was, at most, a mere intention to resist, never carried 
 into effect, which had never been considered in the case of a 
 single ship, as involving the penalty of confiscation. But the 
 resistance of the master of a single ship, which is supposed to 
 be analogous to the .case of convoy, must refer to a neutral
 
 RIGHTS OF WAR AS TO NEUTRALS. 619 
 
 master, whose resistance would, by the established law of 
 nations, involve both ship and cargo in the penalty of confis- 
 cation. The same principle would not, however, apply to the 
 case of an enemy -masier, who has an incontestible right to re- 
 sist his enemy, and whose resistance could not affect the 
 neutral owner of the cargo, unless he was on board, and 
 actually participated in the resistance. Such was, in a similar 
 case, the judgment of Sir W. Scott. So also the right of a 
 neutral to transport his goods on board even of an armed 
 belligerent vessel, was solemnly affirmed by the decision of the 
 highest judicial tribunal in the United States, during the late 
 war with Great Britain, after a most elaborate discussion, in 
 which all the principles and analogies of public law bearing 
 upon the question were thoroughly examined and considered. 
 
 The American negotiator then confidently relied upon the 
 position assumed by him that the entire silence of all the 
 authoritative writers on public law, as to any such exception to 
 the general freedom of neutral navigation, laid down by them 
 in such broad and comprehensive terms, and of every treaty 
 made for the special purpose of defining and regulating the 
 rights of neutral commerce and navigation, constituted of 
 itself a strong negative authority to show, that no such excep- 
 tion exists, especially as that freedom is expressly extended to 
 every case which has the slightest resemblance to that in 
 question. It could not be denied that the goods of a friend, 
 found in an enemy's fortress, are exempt from confiscation as 
 prize of war ; that a neutral may lawfully carry his goods in 
 an armed belligerent ship ; that the neutral shipper of goods 
 on board an enemy's vessel, (armed or unarmed,) is not re- 
 sponsible for the consequences of resistance by the enemy- 
 master. How then could the neutral owner, both of ship and 
 cargo, be responsible for the acts of the belligerent convoy, 
 under the protection of which his property had been placed, 
 not by his own immediate act, but by that of the master pro- 
 ceeding without the knowledge or instructions of the owner ? 
 
 Such would certainly be the view of the question, even ap- 
 plying to it the largest measure of belligerent rights ever 
 assumed by any maritime State. But when examined by the 
 milder interpretations of public law, which the Danish govern- 
 ment, in common with the other northern powers of Europe
 
 620 RIGHTS OF WAR AS TO NEUTRALS. 
 
 had hitherto patronized, it would he found still more clear of 
 doubt. If, as Denmark had always insisted, a neutral might 
 lawfully arm himself against all the belligerents ; if he might 
 place himself under the convoying force of his own country, so 
 as to defy the exercise of belligerent force to compel him to 
 submit to visitation and search on the high seas ; the conduct 
 of the neutral Americans who were driven to take shelter under 
 the floating fortresses of the enemy of Denmark, not for the 
 purpose of resisting the exercise of her belligerent rights, but 
 to protect themselves against the lawless violence of those, 
 whose avowed purpose rendered it certain, that, notwith- 
 standing this neutrality, capture would inevitably be followed 
 by condemnation, would find its complete vindication in the 
 principles which the public jurists and statesmen of that 
 country had maintained in the face of the world. Had the 
 American commerce in the Baltic been placed under the pro- 
 tection of the public ships of war of the United States, as it 
 was admitted it might have been, the belligerent rights of 
 Denmark would have been just as much infringed as they were 
 by what actually happened. In that case, the Danish cruisers 
 must, upon Danish principles, have been satisfied with the 
 assurance of the commander of the American convoying 
 squadron, as to the neutrality of the ships and cargoes sailing 
 under his protection. But that assurance could only have 
 been founded upon their being accompanied with the ordinary 
 documents found on board of American vessels, and issued by 
 the American government upon the representations and proofs 
 furnished by the interested parties. If these might be false 
 and fraudulent in the one case, so might they be in the other, 
 and the Danish government would be equally deprived of all 
 means of examining their authenticity in both. In the one, it 
 would be deprived of those means by its own voluntary acquies- 
 cence in the statement of the commander of the convoying 
 squadron, and in the other, by the presence of a superior 
 enemy's force, preventing the Danish cruisers from exercising 
 their right of search. This was put for the sake of illustration, 
 upon the supposition that the vessels under convoy had es- 
 caped from capture ; for upon that supposition only could any 
 actual injury have been sustained by Denmark as a belligerent 
 power. Here they were captured without any hostile conflict,
 
 RIGHTS OF WAR AS TO NEUTRALS. 621 
 
 and the question was, whether they were liable to confiscation 
 for having navigated under the enemy's convoy, notwith- 
 standing the neutrality of the property and the lawfulness of 
 their voyage in other respects. 
 
 Even supposing, then, that it was the intention of the 536. 
 American shipmasters, in sailing with the British convoy, to 
 escape from Danish as well as French cruisers, that intention 
 had failed of its effect ; and it might be asked, what belligerent 
 right of Denmark had been practically injured by such an 
 abortive attempt ? If any, it must be the right of visitation 
 and search. But that right is not a substantive and inde- 
 pendent right, with which belligerents are invested by the law 
 of nations for the purpose of wantonly vexing and interrupting 
 the commerce of neutrals. It is a right growing out of a 
 greater right of capturing enemy's property, or contraband of 
 war, and to be used, as means to an end, to enforce the exer- 
 cise of that right. Here the actual exercise of the right was 
 never in fact opposed, and no injury had accrued to the belli- 
 gerent power. But it would, perhaps, be said, that it might 
 have been opposed and actually defeated, had it not been for 
 the accidental circumstance of the separation of these vessels 
 from the convoying force, and that the entire commerce of the 
 world with the Baltic Sea might thus have been effectually 
 protected from Danish capture. And it might be asked in 
 reply, what injury would have resulted to the belligerent rights 
 of Denmark from that circumstance ? If the property were 
 neutral, and the voyage lawful, what injury would result from 
 the vessels escaping from examination ? On the other hand, 
 if the property were enemy's property, its escape must be attri- 
 buted to the superior force of the enemy, which, though a loss, 
 could not be an injury of which Denmark would have a lawful 
 right to complain. Unless it could be shown that a neutral 
 vessel navigating the seas is bound to volunteer to be searched 
 by the belligerent cruisers, and that she had no right to avoid 
 search by any means whatever, it was apparent that she might 
 avoid it by any means not unlawful. Violent resistance to 
 search, rescue after seizure, fraudulent spoliation or conceal- 
 ment of papers, are all avowedly unlawful means, which, unless 
 extenuated by circumstances, may justly be visited with the 
 penalty of confiscation. Those who alleged that sailing under
 
 622 
 
 RIGHTS OF WAR AS TO NEUTRALS. 
 
 Treaty 
 between 
 the United 
 States and 
 Denmark. 
 
 belligerent convoy was also attended with the same conse- 
 quences, must show it, by appealing to the oracles of public 
 law, to the text of treaties, to some decision of an interna- 
 tional tribunal, or to the general practice and understanding 
 of nations (g). 
 
 The negotiation finally resulted in the signature of a 
 treaty, in 1830, between the United States and Denmark, by 
 which the latter power stipulated to indemnify the American 
 claimants generally for the seizure of their property by the 
 payment of a fixed sum en bloc, leaving it to the American 
 government to apportion it by commissioners appointed by 
 itself, and authorized to determine "according to the principles 
 o'f justice, equity, and the law of nations," with a declaration 
 that the convention, having no other object than to terminate 
 all the claims, " can never hereafter be invoked, by one party 
 or the other, as a precedent or rule for the future " (h). 
 
 (g) Mr. Wheaton to Count Schimmelmann, 1828. 
 
 (h) Martens, Nouveau Recueil, torn. viii. p. 350. Elliot's American Diplo- 
 matic Code, vol. i. p. 453.
 
 CHAPTER IV. 
 
 TREATY OP PEACE. 
 
 THE power of concluding peace, like that of declaring war, 538. 
 depends upon the municipal constitution of the State. These ma t; n ,T 
 
 authorities are generally associated. In unlimited monarchies, P ea( ; e cle - 
 
 . . pendent on 
 
 both reside in the sovereign ; and even in limited or constitu- the muni- 
 tional monarchies, each may be vested in the crown. Such is ^f^" 
 the British Constitution, at least in form; but it is well 
 known, that in its practical administration, the real power of 
 making war actually resides in the Parliament, without whose 
 approbation it cannot be carried on, and which body has con- 
 sequently the power of compelling the Crown to make peace, 
 by withholding the supplies necessary to prosecute hostilities. 
 The American Constitution vests the power of declaring war 
 in the two houses of Congress, with the assent of the Presi- 
 dent. By the forms of the Constitution, the President has 
 the exclusive power of making treaties of peace, which, when 
 ratified with the advice and consent of the Senate, become the 
 supreme law of the land, and have the effect of repealing the 
 declaration of war and all other laws of Congress, and of the 
 several States which stand in the way of their stipulations. 
 But the Congress may at any time compel the President to 
 make peace, by refusing the means of carrying on war. In 
 France, the King has, by the express terms of the constitu- 
 tional charter, power to declare war, to make treaties of peace, 
 of alliance, and of commerce ; but the real power of making 
 both peace and war resides in the Chambers, which have the 
 authority of granting or refusing the means of prosecuting 
 hostilities. 
 
 The power of making treaties of peace, like that of making 539. 
 other treaties with foreign States is, or may be, limited in its m a^i n g 
 
 extent by the national constitution. We have already seen t^ties of 
 
 peace
 
 C24 
 
 TREATY OF PEACE. 
 
 limited in 
 its extent. 
 
 540. 
 
 Indemnity 
 to indi- 
 viduals for 
 losses by 
 public con- 
 cessions. 
 
 541. 
 
 Dismem- 
 berment of 
 States by 
 treaty. 
 
 that a general authority to make treaties of peace necessarily 
 implies a power to stipulate the conditions of peace ; and 
 among these may properly be involved the cession of the 
 public territory and other property, as well as of private pro- 
 perty included in the eminent domain. If, then, there be no 
 limitation, expressed in the fundamental laws of the State, or 
 necessarily implied from the distribution of its constitutional 
 authorities, on the treaty-making power in this respect, it 
 necessarily extends to the alienation of public and private 
 property, when deemed necessary for the national safety or 
 policy (a). 
 
 The duty of making compensation to individuals, whose 
 private property is thus sacrificed to the general welfare, is 
 inculcated by public jurists, as correlative to the sovereign 
 right of alienating those things which are included in the 
 eminent domain ; but this duty must have its limits. No 
 government can be supposed to be able, consistently with the 
 welfare of the whole community, to assume the burden of 
 losses produced by conquest, or the violent dismemberment of 
 the State. Where, then, the cession of territory is the result of 
 coercion and conquest, forming a case of imperious necessity 
 beyond the power of the State to control, it does not impose 
 any obligation upon the government to indemnify those who 
 may suffer a loss of property by the cession (b). 
 
 The fundamental laws of most free governments limit the 
 treaty-making power, in respect to the dismemberment of the 
 State, either by an express prohibition, or by necessary impli- 
 cation from the nature of the constitution. Thus, even under 
 the constitution of the old French monarchy, the States- 
 General of the kingdom declared that Francis I. had no power 
 to dismember the kingdom, as was attempted by the Treaty of 
 Madrid, concluded by that monarch ; and that not merely 
 upon the ground that he was a prisoner, but that the assent 
 of the nation, represented in the States-General, was essential 
 to the validity of the treaty. The cession of the province of 
 Burgundy was therefore annulled, as contrary to the funda- 
 
 (a) Vide ante, Pt. iii. ch. 2, 266. 
 
 (b) Grotius, de Jur. Bel. ac Pac. lib, iii. cap. 20, 7. Vattel, Droit des 
 Gens, liv. i. ch. 20, 244 ; liv. iv. ch. 2, 12. Kent's Comment, on American 
 Law, vol. i. p. 178, 5th ed.
 
 TREATY OF PEACE. 625 
 
 mental laws of the kingdom ; and the provincial States of that 
 duchy, according to Mezeray, declared, that " never having 
 been other than subjects of the crown of France, they would 
 die in that allegiance ; and if abandoned by the king, they 
 would take up arms, and maintain by force their independ- 
 ence, rather than pass under a foreign dominion." But when 
 the ancient feudal constitution of France was gradually 
 abolished by the disuse of the States-General, and the abso- 
 lute monarchy became firmly established under Richelieu and 
 Louis XIV., the authority of ceding portions of the public 
 territory, as the price of peace, passed into the hands, of the 
 king, in \vhom all the other powers of government were con- 
 centrated. The different constitutions established in France, 
 subsequently to the Revolution of 17B9, limited this authority 
 in the hands of the executive in various degrees. The pro- 
 vision in the Constitution of 1795, by which the recently 
 conquered countries -on the left bank of the Rhine were 
 annexed to the French territory, became an insuperable 
 obstacle to the conclusion of peace in the conferences at Lisle. 
 By the Constitutional Charter of 1830, the king is invested 
 with the power of making peace, without any limitation of this 
 authority, other than that which is implied in the general dis- 
 tribution of the constitutional powers of the government. 
 Still it is believed that, according to the general understanding 
 of French public jurists, the assent of the Chambers, clothed 
 with the forms of a legislative act, is considered essential to 
 the ultimate validity of a treaty ceding any portion of the 
 national territory. The extent and limits of the territory 
 being defined by the municipal laws, the treaty-making power 
 is not considered sufficient to repeal those laws. 
 
 In Great Britain, the treaty-making power, as a branch of 542. 
 the regal prerogative, has in theory no limits ; but it is prac- ma kjn,, 
 tically limited by the general controlling authority of r wer ot 
 Parliament ; whose approbation is necessary to carry into Britain, 
 effect a treaty, by which the existing territorial arrangements 
 of the empire are altered. 
 
 In confederated governments, the extent of the treaty- 543. 
 making power, in this respect, must depend upon the nature m r a e ^fn g 
 of the confederation. If the union consists of a system of power of a, 
 confederated States, each retaining its own sovereignty com- tiou.
 
 > TREATY OF PEACE. 
 
 plete and unimpaired, it is evident that the federal head, even 
 if invested with the general power of making treaties of peace 
 for the confederacy, cannot lawfully alienate the whole or any 
 portion of the territory of any member of the union, without 
 the express assent of that member. Such was the theory of 
 the ancient Germanic Constitution ; the dismemberment of 
 its territory was contrary to the fundamental laws and maxims 
 of the empire ; and such is believed to be the actual constitu- 
 tion of the present Germanic Confederation. This theory of 
 the public law of Germany has often been compelled to yield 
 in practice to imperious necessity ; such as that which forced 
 the cession to France of the territories belonging to the States 
 of the empire, on the left bank of the Rhine, by the treaty of 
 Luneville, in 1800. Even in the case of a supreme federal 
 government, or composite State, like that of the United States 
 of America, it may, perhaps, be doubted how far the mere 
 general treaty-making power, vested in the federal head, 
 necessarily carries with it that of alienating the territory of 
 any member of the union without its consent. 
 
 544. The effect of a treaty of peace is to put an end to the war, 
 
 treaty of an( l to abolish the subject of it. It is an agreement to waive 
 peace. a ]| discussion concerning the respective rights and claims of 
 the parties, and to bury in oblivion the original causes of the 
 war. It forbids the revival of the same war, by resuming 
 hostilities for the original cause which first kindled it, or for 
 whatever may have occurred in the course of it. But the 
 reciprocal stipulation of perpetual peace and amity between 
 the parties does not imply that they are never again to make 
 war against each other for any cause whatever. The peace 
 relates to the war which it terminates ; and is perpetual, in 
 the sense that the war cannot be revived for the same cause. 
 This will not, however, preclude the right to claim and resist, 
 if the grievances which originally kindled the war be repeated 
 for that would furnish a new injury and a new cause of war, 
 equally just with the former. If an abstract right be in ques- 
 tion between the parties, on which the treaty of peace is 
 silent, it follows, that all previous complaints and injury, 
 arising under such claim, are thrown into oblivion, by the 
 amnesty, necessarily implied, if not expressed ; but the claim 
 itself is not thereby settled either one way or the other. In
 
 TREATY OF PEACE. 027 
 
 the absence of express renunciation or recognition, it remains 
 open for future discussion. And even a specific arrangement 
 of a matter in dispute, if it be special and limited, lias refer- 
 ence only to that particular mode of asserting the claim, and 
 does not preclude the party from any subsequent pretensions 
 to the same thing on other grounds. Hence the utility in 
 practice of requiring a general renunciation of all pretensions 
 to the thing in controversy, which has the effect of precluding 
 for ever the assertion of the claim in any mode (c). 
 
 The treaty of peace does not extinguish claims founded 
 upon debts contracted or injuries inflicted previously to the 
 war, and unconnected with its causes, unless there be an 
 express stipulation to that effect. Nor does it affect private 
 rights acquired antecedently to the war, or private injuries 
 unconnected with the causes which produced the war. Hence 
 debts previously contracted between the respective subjects, 
 though the remedy for their recovery is suspended during the 
 war, are revived on the restoration of peace, unless actually 
 confiscated, in the meantime, in the rigorous exercise of the 
 strict rights of war, contrary to the milder practice of recent 
 times. There are even cases where debts contracted, or in- 
 juries committed, between the respective subjects of the 
 belligerent nations during the war, may become the ground of 
 a valid claim, as in the case of ransom-bills, and of contracts 
 made by prisoners of war for subsistence, or in the course of 
 trade carried on under a license. In all these cases, the 
 remedy may be asserted subsequently to the peace (d). 
 
 The treaty of peace leaves every thing in the state in which 
 it found it, unless there be some express stipulation to the 
 contrary. The existing state of possession is maintained, basis of 
 except so far as altered by the terms of the treaty. If nothing treaty of 
 
 be said about the conquered country or places, they remain ^^ the 
 with the conqueror, and his title cannot afterwards be called contrary be 
 in question. During the continuance of the war, the conqueror 
 in possession has only a usufructuary right, and the latent 
 title of the former sovereign continues, until the treaty of 
 peace, by its silent operation, or express provisions, extin- 
 guishes his title for ever (e). 
 
 (c) Vattel, Droit des Gens, liv. iv. ch. 2, 1921. 
 
 (d) Kent's Comment, vol. i. p. 168, 5th ed. 
 
 (c) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, 4, 5. Yattel, Droit des
 
 628 TREATY OF PEACH. 
 
 ^ 546 ; The restoration of the conquered territory to its original 
 
 restoration sovereign, by the treaty of peace, carries with it the restora- 
 bva^treTt 7 ** on ^ a ^ P ersons an< ^ things which have been temporarily 
 of peace. under the enemy's dominion, to their original state. This 
 general rule is applied, without exception, to real property or 
 immovables. The title acquired in war to this species of 
 property, until confirmed by a treaty of peace, confers a mere 
 temporary right of possession. The proprietary right cannot 
 be transferred by the conqueror to a third party, so as to 
 entitle him to claim against the former owner, on the restora- 
 tion of the territory to the original sovereign. If, on the 
 other hand, the conquered territory is ceded by the treaty of 
 peace to the conqueror, such an intermediate transfer is thereby 
 confirmed, and the title of the purchaser becomes valid and 
 complete. In respect to personal property or movables, a 
 different rule is applied. The title of the enemy to things of 
 this description is considered complete against the original 
 owner after twenty-four hours' possession, in respect to booty 
 on land. The same rule was formerly considered applicable 
 to captures at sea ; but the more modern usage of maritime 
 nations requires a formal sentence of condemnation as prize of 
 war, in order to preclude the right of the original owner to 
 restitution on payment of salvage. But since the jus j)ost- 
 liminil does not, strictly speaking, operate after the peace ; if 
 the treaty of peace contains no express stipulation respecting 
 captured property, it remains in the condition in -which the 
 treaty finds it, and is thus tacitly ceded to the actual possessor. 
 The jus postliminii is a right which belongs exclusively to a 
 state of war ; and therefore a transfer to a neutral, before the 
 peace, even without a judicial sentence of condemnation, is 
 valid, if there has been no recovery or recapture before the 
 peace. The intervention of peace covers all defects of title, 
 and vests a lawful possession in the neutral, in the same 
 manner as it quiets the title of the hostile captor himself (/) . 
 54 7. A treaty of peace binds the contracting parties from the 
 
 time the time of its signature. Hostilities are to cease between them 
 treaty of f r om that time, unless some other period be provided in the 
 
 Gens, liv. iii. ch. 13, 197, 198. Martens. Precis du Droit des Gens, liv. iii. 
 ch. 4, 282. Kliiber, Droit des Gens Moderne de 1'Europe, 254259. 
 
 (f) Vattel, liv. iii. ch. 14, 209, 212. 216. The Purisxinia Conception, 
 6 d Kob. 45 : The Hoptiia, ibid.' 138.
 
 TREATY OF PKACK. (52f) 
 
 treaty itself. But the treaty binds the subjects of the "bel- peace com- 
 ligerent nations only from the time it is notified to* them, ^ration 8 
 Any intermediate acts of hostility committed by them before 
 it was known, cannot be punished as criminal acts, though it 
 is the duty of the State to make restitution of the property 
 seized subsequently to the conclusion of the treaty ; and, in 
 order to avoid disputes respecting the consequences of such 
 acts, it is usual to provide, in the treaty itself, the periods at 
 which hostilities are to cease in different places. Grotius inti- 
 mates an opinion that individuals are not responsible, even 
 cirilitcr, for hostilities thus continued after the conclusion of 
 peace, so long as they are ignorant of the fact, although it is 
 the duty of the State to make restitution, wherever the pro- 
 perty has not been actually lost or destroyed. But the better 
 opinion seems to be, that wherever a capture takes place at 
 sea, after the signature of the treaty of peace, mere ignorance 
 of the fact will not protect the captor from civil responsibility 
 in damages ; and that, if he acted in good faith, his own 
 government must protect him and save him harmless. When 
 a place or country is exempted from hostility by articles of 
 peace, it is the duty of the State to give its subjects timely 
 notice of the fact. In such a case it is the actual wrong-doer 
 who is made responsible to the injured party, and not the 
 superior commanding officer of the fleet, unless he be on the 
 spot, and actually participating in the transaction. Nor will 
 damages be decreed by the Prize Court, even against the 
 actual wrong-doer, after a lapse of a great length of time (g). 
 
 When the treaty of peace contains an express stipulation 549. 
 that hostilities are to cease in a given place at a certain time, P 68 ??**? 110 * 
 and a capture is made previous to the expiration of the period after 
 limited, but with a knowledge of the peace on the part of the tieaty- 
 captor, the capture is still invalid ; for since constructive 
 knowledge of the peace, after the periods limited in the dif- 
 ferent parts of the world, renders the capture void, much more 
 ought actual knowledge of the peace to produce that effect. 
 It may, however, be questionable whether anything short of 
 an official notification from his own government would be 
 sufficient, in such a case, to affect the captor with the legal 
 
 (g) The Mentor, 1 C. Rob. 121.
 
 630 
 
 TEEATY OF PEACE. 
 
 In what 
 condition 
 things 
 taken are 
 to be re- 
 stored. 
 
 consequences of actual knowledge. And where a capture of a 
 British' vessel was made by an American cruiser, before the 
 period fixed for the cessation of hostilities by the Treaty of 
 Ghent, in 1814, and in ignorance of the fact, but the prize 
 had not been carried infra presidio, and condemned, and while 
 at sea was recaptured by a British ship of war, after the 
 period fixed for the cessation of hostilities, but without know- 
 ledge of the peace, it was judicially determined, that the 
 possession of the vessel by an American cruiser was a lawful 
 possession, and that the British recaptor could not, after the 
 peace, lawfully use force to divest this lawful possession. 
 The restoration of peace put an end, from the time limited, to 
 all force ; and then the general principle applied, that things 
 acquired in war remain, as to title and possession, precisely 
 as they stood when the peace took place. The uti possidetis 
 is the basis of every treaty of peace, unless the contrary be 
 expressly stipulated. Peace gives a final and perfect title to 
 captures without condemnation, and as it forbids all force, it 
 destroys all hope of recovery, as much as if the captured 
 vessel was carried infra prtfsidia and judicially condemned (h). 
 Things stipulated to be restored by the treaty, are to be 
 restored in the condition in which they were first taken, unless 
 there be an express provision to the contrary ; but this does 
 not refer to alterations which have been the natural effect of 
 time, or of the operations of war. A fortress or town is to be 
 restored as it was when taken, so far as it still remains in that 
 condition when the peace is concluded. There is no obligation 
 to repair, as well as restore, a dismantled fortress or a ravaged 
 territory. The peace extinguishes all claim for damages done 
 in war, or arising from the operations of war. Things are to be 
 restored in the condition in which the peace found them ; and 
 to dismantle a fortification or waste a country after the con- 
 clusion of peace, and previously to the surrender, would be an 
 act of perfidy. If the conqueror has repaired the fortifications, 
 and re-established the place in the state it was in before the 
 siege, he is bound to restore it in the same condition. But if 
 he has constructed new works, he may demolish them ; and, 
 
 (M Valin, Traite des Prises, ch. 4, 4, 5. Emerigon, Traite d'Assuranee, 
 cli. 12, 19. Merlin, Repertoire de Jurisprudence, torn. ix. tit. Prise Mari- 
 time, 5. Kent'* Comment, vol. i. p. 172, 5th ed.
 
 TREATY OF PEACE. 631 
 
 in general, in order to avoid disputes, it is advisable to stipu- 
 late in the treaty precisely in what condition the places 
 occupied by the enemy are to be restored (i). 
 
 The violation of any one article of the treaty is a violation 550. 
 of the whole treaty ; for all the articles are dependent on each ^treaty, 
 other, and one is to be deemed a condition of the other. A 
 violation of any single article abrogates the whole treaty, if the 
 injured party so elects to consider it. This may, however, be 
 prevented by an express stipulation, that if one article be 
 broken, the others shall nevertheless continue in full force. 
 If the treaty is violated by one of the contracting parties, 
 either by proceedings incompatible with its general spirit, or 
 by a specific breach of any one of its articles, it becomes not 
 absolutely void, but voidable at the election of the injured 
 party. If he prefers not to come to a rupture, the treaty re- 
 mains valid and obligatory. He may waive or remit the in- 
 fraction committed, Or he may demand a just satisfaction (k). 
 
 Treaties of peace are to be interpreted by the same rules 551. 
 with other treaties. Disputes respecting their meaning or ^P"*^ 8 
 alleged infraction may be adjusted by amicable negotiation its breach 
 between the contracting parties, by the mediation of friendly j^ e ^ " 
 powers, or by reference to the arbitration of some one power 
 selected by the parties. This latter office has recently been 
 assumed, in several instances, by the five great powers of 
 Europe, with the view of preventing the disturbance of the 
 general peace, by a partial infraction of the territorial arrange- 
 ments stipulated by the treaties of Vienna, in consequence of 
 the internal revolutions which have taken place in some of the 
 States constituted by those treaties. Such are the protocols 
 of the conference of London, by which a suspension of hos- 
 tilities between Holland and Belgium was enforced, and terms 
 of separation between the two countries proposed, which, when 
 accepted by both, became the basis of a permanent peace. 
 The objections to this species of interference, and the difficulty 
 of reconciling it with the independence of the smaller powers, 
 are obvious ; but it is clearly distinguishable from that general 
 right of superintendence over the internal affairs of other 
 
 (t) Vattel, Droit des Gens, liv. iv. ch. 3, 81. 
 
 (k) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, 15 ; lib. iii. cap. 19, 14. 
 Vattel, liv. iv. ch. 4, 47, 48, 54.
 
 032 TREATY OF PEACE. 
 
 States, asserted by the powers who were the original parties 
 to the Holy Alliance, for the purpose of preventing changes in 
 the municipal constitutions not proceeding from the voluntary 
 concession of the reigning sovereign, or supposed in their con- 
 sequences, immediate or remote, to threaten the social order 
 of Europe. The proceedings of the conference treated the 
 revolution, by which the union between Holland and Belgium, 
 established by the Congress of Vienna, had been dissolved, as 
 an irrevocable event ; and confirmed the independence, neu- 
 trality, and state of territorial possession of Belgium, upon 
 the conditions contained in the Treaty of the 15th November, 
 1831, between the five powers and that kingdom, subject to 
 such modifications as might ultimately be the result of direct 
 negotiations between Holland and Belgium (I). 
 
 (I) "VVheaton's Hist. Law of Nations, pp. 538555.
 
 APPENDIX A. 
 
 ENGLISH AND AMERICAN NATURALIZATION ACTS, 
 
 I. ENGLISH ACTS. 33 & 34 VICT. c. 14. 
 
 An Act to amend the Law relating to the legal condition of Aliens and 
 British Subjects. [12th May, 1870.] 
 
 WHEREAS it is expedient to amend the law relating to the legal con- 
 dition of aliens and British subjects : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 1. This Act may be cited for all purposes as "The Naturalization Short title. 
 Act, 1870." 
 
 Status of Aliens in the United Kimjdom. 
 
 2. Real and personal . property of every description may be taken, Capacity of 
 acquired, held, and disposed of by an alien in the same manner in all ^ n 
 respects as by a natural-bom British subject ; and a title to real and 
 personal property of every description may be derived through, from, 
 
 or in succession to an alien, in the same manner in all respects as 
 
 through, from, or in succession to a natural-born British subject : 
 
 Provided, 
 
 (1.) That this section shall not confer any right on an alien to 
 hold real property situate oiit of the United Kingdom, and 
 shall not qualify an alien for any office or for any muni- 
 cipal, parliamentary, or other franchise : 
 
 (2.) That this section shall not entitle an alien to any right or 
 privilege as a British subject, except such rights and 
 privileges in respect of property as are hereby expressly 
 given to him : 
 
 (3.) That this section shall not affect any estate or interest in 
 real or personal property to which any person has or may 
 become entitled, either mediately or immediately, in pos- 
 session or expectancy, in pursuance of any disposition 
 made before the passing of this Act, or in pursuance of 
 any devolution by law on the death of any person dying 
 before the passing of this Act. 
 3. Where Her Majesty has entered into a convention with any Power of 
 
 foreign State to the effect that the subjects or citizens of that State who naturalized
 
 634 
 
 APPENDIX. 
 
 aliens to 
 divest 
 themselves 
 of their 
 status in 
 certain 
 
 How 
 British - 
 born sub- 
 ject may 
 cease to b 
 such. 
 
 Alien not 
 entitled to 
 jury de 
 medietate 
 linguae. 
 
 Capacity of 
 
 British 
 
 subject to 
 
 renounce 
 
 allegiance 
 
 to Her 
 
 Majesty. 
 
 have been naturalized as British subjects may divest themselves of their 
 status as such subjects, it shall be lawful for Her Majesty, by Order in 
 Council, to declare that such convention has been entered into by Her 
 Majesty ; and from and after the date of such Order in Council, any 
 person being originally a subject or citizen of the State referred to in 
 such Order, who has been naturalized as a British subject, may, within 
 such limit of time as may be provided in the convention, make a decla- 
 ration of alienage, and from and after the date of his so making such 
 declaration such person shall be regarded as an alien, and as a subject 
 of the State to which he originally belonged as aforesaid. 
 
 A declaration of alienage may be made as follows ; that is to say, 
 If the declarant be in the United Kingdom in the presence of any 
 justice of the peace, if elsewhere in Her Majesty's dominions in the 
 presence of any judge of any court of civil or criminal jurisdiction, of 
 any justice of the peace, or of any other officer for the time being 
 authorized by law in the place in which the declarant is to administer 
 an oath for any judicial or other legal purpose. If out of Her Majesty's 
 dominions in the presence of any officer in the diplomatic or consular 
 service of Her Majesty. 
 
 4. Any person who by reason of his having been born within the 
 dominions of Her Majesty is a natural-born subject, but who also at the 
 time of his birth became under the law of any foreign State a subject 
 of such State, and is still such subject, may, if of full age and not 
 under any disability, make a declaration of alienage in manner afore- 
 said, and from and after the making of such declaration of alienage such 
 person shall cease to be a British subject. Any person who is born out 
 of Her Majesty's dominions of a father being a British subject may, if 
 of full age, and not under any disability, make a declaration of alienage 
 in manner aforesaid, and from and after the making of such declaration 
 shall cease to be a British subject. 
 
 5. From and after the passing of this Act, an alien shall not be 
 entitled, to be tried by a jury de medietate linguae, but shall be triable 
 in the same manner as if he were a natural-born subject. 
 
 Expatriation. 
 
 6. Any British subject who has at any time before, or may at any 
 time after the passing of this Act, when in any foreign State and not 
 under any disability voluntarily become naturalized in such State, shall 
 from and after the time of his so having become naturalized in such 
 foreign State, be deemed to have ceased to be a British subject and be 
 regarded as an alien : Provided, 
 
 (1.) That where any British subject has before the passing of this 
 Act voluntarily become naturalized in a foreign State and 
 yet is desirous of remaining a British subject, he may, at 
 any time within two years after the passing of this Act, 
 make a declaration that he is desirous of remaining a British 
 subject, and upon such declaration herein-after referred to 
 as a declaration of British nationality being made, and 
 upon his taking the oath of allegiance, the declarant shall, 
 be deemed to be and to have been continually a British
 
 NATURALIZATION. (535 
 
 subject ; with this qualification, that he shall not, when 
 within the limits of the foreign State in which he has 
 been naturalized, be deemed to be a British subject, unless 
 he has ceased to be a subject of that State in pursuance of 
 the laws thereof, or in pursuance of a treaty to that effect : 
 (2.) A declaration of British nationality may be made, and the 
 oath of allegiance be taken as follows ; that is to say, 
 if the declarant be in the United Kingdom in the presence 
 of a justice of the peace ; if elsewhere in her Majesty's 
 dominions in the presence of any judge of any court of 
 civil or criminal jurisdiction, of any justice of the peace, 
 or of any other officer for the time being authorized by 
 law in the place in which the declarant is to administer an 
 oath for any judicial or other legal purpose. If out of 
 Her Majesty's dominions in the presence of any officer in 
 the diplomatic or consular service of Her Majesty. 
 
 Naturalization and resumption of British Nationality. 
 
 7. An alien who, within such limited time before making the appli- Certificate 
 cation herein-after mentioned as may be allowed by one of Her Majesty's of naturali- 
 Principal Secretaries of State, either by general order or on any special zat i n> 
 occasion, has resided in the United Kingdom for a term of not less than 
 five years, or has been .in the service of the Crown for a term of not 
 less than five years, and intends when naturalized, either to reside in 
 the United Kingdom, or to serve under the Crown, may apply to one 
 of Her Majesty's Principal Secretaries of State for a certificate of 
 naturalization. 
 
 The applicant shall adduce in support of his application such evidence 
 of his residence or service, and intention to reside or serve, as such 
 Secretary of State may require. The said Secretary of State, if satis- 
 fied with the evidence adduced, shall take the case of the applicant into 
 consideration, and may, with or without assigning any reason, give or 
 withhold a certificate as he thinks most conducive to the public good, 
 and no appeal shall lie from his decision, but such certificate shall not 
 take effect until the applicant has taken the oath of allegiance. 
 
 An alien to whom a certificate of naturalization is granted shall in 
 the United Kingdom be entitled to all political and other rights, powers, 
 and privileges, and be subject to all obligations, to which a natural- 
 born British subject is entitled or subject in the United Kingdom, with 
 this qualification, that he shall not, when within the limits of the 
 foreign State of which he was a subject previously to obtaining his 
 certificate of naturalization, be deemed to be a British subject unless he 
 has ceased to be a subject of that State in pursuance of the laws thereof, 
 or in pursuance of a treaty to that effect. 
 
 The said Secretary of State may in manner aforesaid grant a special 
 certificate of naturalization to any person with respect to whose 
 nationality as a British subject a doubt exists, and he may specify in 
 such certificate that the grant thereof is made for the purpose of quieting 
 doubts as to the right of such person to be a British subject, and the 
 grant of such special certificate shall not be deemed to be any admis-
 
 630 
 
 APPENDIX. 
 
 Certificate 
 of re- 
 admission 
 to British 
 nationality 
 
 Form of 
 oath of 
 alle- 
 giatice. 
 
 sion that the person to whom it was granted was not previously a 
 British subject. 
 
 An alien who has been naturalized previously to the passing of this 
 Act may apply to the Secretary of State for a certificate of naturaliza- 
 tion under this Act, and it shall be lawful for the said Secretary of 
 State to grant such certificate to such naturalized alien upon the same 
 terms and subject to the same conditions in and upon which such cer- 
 tificate might have been granted if such alien had not been previously 
 naturalized in the United Kingdom. 
 
 8. A natural-born British subject who has become an alien in pur- 
 suance of this Act, and is in this Act referred to as a statutory alien, 
 may, on performing the same conditions and adducing the same evi- 
 dence as is required in the case of an alien applying for a certificate of 
 nationality, apply to one of Her Majesty's Principal Secretaries of State 
 for a certificate herein-after referred to as a certificate of re-admission to 
 British nationality, re-admitting him to the status of a British subject. 
 The said Secretary of State shall have the same discretion as to the 
 giving or withholding of the certificate as in the case of a certificate of 
 naturalization, and an oath of allegiance shall in like manner be required 
 previously to the issuing of the certificate. 
 
 A statutory alien to whom a certificate of re-admission to British 
 nationality has be;-n granted shall, from the date of the certificate of 
 re-admission, but not in respect of any previous transaction, resume 
 his position as a British subject ; with this qualification, that within 
 the limits of the foreign State of which he became a subject he shall 
 not be deemed to be a British subject unless he has ceased to be a 
 subject of that foreign State according to the laws thereof, or in 
 pursuance of a treaty to that effect. 
 
 The jurisdiction by this Act conferred on the Secretary of State 
 in the United Kingdom in respect of the grant of a certificate of 
 re-admission to British nationality, in the case of any statutory alien 
 being in any British possession, may be exercised by the governor 
 of such possession ; and residence in such possession shall, in the 
 case of such person, be deemed equivalent to residence in the United 
 Kingdom. 
 
 9. The oath in this Act referred to as the oath of allegiance shall be 
 in the form following ; that is to say, 
 
 "I do swear that I will be faithful and bear 
 
 " true allegiance to Her Majesty Queen Victoria, her heirs and suc- 
 " cessors, according to law. So help me GOD." 
 
 National 
 status of 
 married 
 women and 
 infant 
 children. 
 
 National status of married women and infant children. 
 
 10. The following enactments shall be made with respect to the 
 national status of women and children : 
 
 (1.) A married w r oman shall be deemed to be a subject of the 
 State of which her husband is for the time being a 
 subject : 
 
 (2) A widow being a natural-born British subject, who has 
 become an alien by or in consequence of her marriage, 
 shall be deemed to be a statutory alien, and may as such
 
 NATURALIZATION. 637 
 
 at any time during widowhood obtain a certificate of 
 re-admission to British nationality in manner provided 
 by this Act : 
 
 (3.) Where the father being a British subject, or the mother 
 being a British subject and a widow, becomes an alien in 
 pursuance of this Act, every child of such father or 
 mother who during infancy has become resident in the 
 country where the father or mother is naturalized, and 
 has, according to the laws of such country, become 
 naturalized therein, shall be deemed to be a subject of the 
 State of which the father or mother has become a subject, 
 arid not a British subject : 
 
 (4.) Where the father, or the mother being a widow, has obtained 
 a certificate of re-admission to British nationality, every 
 child of such father or mother who during infancy has 
 become resident in the British dominions with such father 
 or mother, shall be deemed to have resumed the position 
 of a British subject to all intents : 
 
 (5.) Where the father, or the mother being a widow, has obtained 
 a certificate of naturalization in the United Kingdom, 
 every child of such father or mother who during infancy 
 has become resident with such father or mother in any 
 part of the United Kingdom, shall be deemed to be a 
 naturalized British subject. 
 
 Supplemental Provisions. 
 
 11. One of Her Majesty's Principal Secretaries of State may by Regulations 
 regulation provide for the following matters : as to regis- 
 
 (1.) The fonn and registration of declarations of British tratlon - 
 nationality : 
 
 (-2.) The form and registration of certificates of naturalization in 
 the United Kingdom : 
 
 (3.) The form and registration of certificates of re-admission to 
 British nationality : 
 
 (4.) The form and registration of declarations of alienage : 
 
 (5.) The registration by officers in the diplomatic or consular 
 service of Her Majesty of the births and deaths of British 
 subjects who may be born or die out of Her Majesty's 
 dominions, and of the marriages of persons married at any 
 of Her Majesty's embassies or legations : 
 
 (6.) The transmission to the United .Kingdom for the purpose of 
 registration or safe keeping, or of being produced as 
 evidence of any declarations or certificates made in pur- 
 suance of this Act out of the United Kingdom, or of any 
 copies of such declarations or certificates, also of copies of 
 entries contained in any register kept out of the United 
 Kingdom in pursuance of or for the purpose of carrying 
 into effect the provisions of this Act : 
 
 (7.) With the consent of the Treasury the imposition and appli- 
 e-ation of fees in respect of any registration authorized to
 
 638 
 
 APPIiNDIX. 
 
 be made by this Act, and in respect of the making any 
 declaration or the grant of any certificate authorized to be 
 made or granted by this Act. 
 
 The said Secretary of State, by a further regulation, may repeal, 
 alter, or add to any regulation previously made by him in pursuance 
 of this section. 
 
 Any regulation made by the said Secretary of State in pursuance of 
 this section shall be deemed to be within the powers conferred by this 
 Act, and shall be of the same force as if it had been enacted in this 
 Act, but shall not so far as respects the imposition of fees be in force 
 in any British possession, and shall not, so far as respects any other 
 matter, be in force in any British possession in which any Act or ordi- 
 nance to the contrary of or inconsistent with any such direction may 
 for the time being be in force. 
 
 Reflations ^- ^he ffll wm g regulations shall be made with respect to evidence 
 as to evi- under this Act :- - 
 
 dence. (1.) Any declaration authorized to be made under this Act may 
 
 be proved in any legal proceedings by the production of 
 the original declaration, or of any copy thereof certified to 
 be a true copy by one of Her Majesty's Principal Secre- 
 taries of State, or by any person authorized by regulations 
 of one of Her Majesty's Principal Secretaries of State to 
 give certified copies of such declaration, and the produc- 
 tion of such declaration or copy shall be evidence of the 
 person therein named as declarant having made the same 
 at the date in the said declaration mentioned : 
 (2.) A certificate of naturalization may be proved in any legal 
 proceeding by the production of the original certificate, or 
 of any copy thereof certified to be a true copy by one of 
 Her Majesty's Principal Secretaries of State, or by any 
 person authorized by regulations of one of Her Majesty's 
 Principal Secretaries of State to give certified copies of 
 such certificate : 
 
 (3.) A certificate of re-admission to British nationality may be 
 proved in any legal proceeding by the production of the 
 original certificate, or of any copy thereof certified to be a 
 true copy by one of Her Majesty's Principal Secretaries of 
 State, or by any person authorized by regulations of one 
 of Her Majesty's Principal Secretaries of State to give 
 certified copies of such certificate : 
 
 (4.) Entries in any register authorized to be made in pursuance 
 of this Act shall be proved by such copies and certified in 
 such manner as may be directed by one of Her Majesty's 
 Principal Secretaries of State, and the copies of such 
 entries shall be evidence of any matters by this Act or 
 by any regulation of the said Secretary of State authorized 
 to be inserted in the register : 
 
 (5.) The Documentary Evidence Act, 1868, shall apply to any 
 regulation made by a Secretary of State, in pursuance of 
 or for the purpose of carrying into effect any of the pro- 
 visions of this Act.
 
 NATURALIZATION. 639 
 
 Miscellaneous. 
 
 13. Nothing in this Act contained shall affect the grant of letters Saving of 
 of denization by Her Majesty. letters of 
 
 14. Nothing in this Act contained shall qualify an alien to be the denizatlon - 
 owner of a British ship. ^British 
 
 15. Where any British subject has in pursuance of this Act become ^^ 
 
 an alien, he shall not thereby be discharged from any liability in re- g av j no . O f 
 spect of any acts done before the date of his so becoming an alien. allegiance 
 
 16. All laws, statutes, and ordinances which may be duly made by prior to 
 the legislature of any British possession for imparting to any person e^patria- 
 the privileges, or any of the privileges, of naturalization, to be enjoyed l ' 
 
 by such person within the limits of such possession, shall within such ^^ ^ 
 limits have the authority of law, but shall be subject to be confirmed legislate 
 or disallowed by Her Majesty in the same manner, and subject to with re- 
 the same rules in and subject to which Her Majesty has power to spect to 
 confirm or disallow any other laws, statutes, or ordinances in that ". a u 
 possession 
 
 17. In this Act, if not inconsistent with the context or subject- Definition 
 matter thereof, of terms. 
 
 " Disability " shall mean the status of being an infant, lunatic, 
 idiot, or married woman : 
 
 " British possession " shall mean any colony, plantation, island, 
 territory, or settlement within Her Majesty's dominions, and 
 not within the United Kingdom, and all territories and 
 places under one legislature are deemed to be one British 
 possession for the purposes of this Act : 
 
 " The Governor of any British possession " shall include any 
 person exercising the chief authority in such possession : 
 
 " Officer in the Diplomatic Service of Her Majesty" shall mean 
 any Ambassador, Minister or Charge d' Affaires, or Secretary 
 of Legation, or any person appointed by such Ambassador, 
 Minister, Charge* d' Affaires, or Secretary of Legation to ex- 
 ecute any duties imposed by this Act on an officer in the 
 Diplomatic Service of Her Majesty: 
 
 " Officer in the Consular Service of Her Majesty" shall mean 
 and include Consul-General, Consul, Vice-Consul, and Con- 
 sular Agent, and any person for the time being discharging 
 the duties of Consul-General, Consul, Vice-Consul, and Con- 
 sular Agent. 
 
 Repeal of Acts mentioned in Schedule. 
 
 1 8. The several Acts set forth in the first and second parts of the Repeal of 
 schedjde annexed hereto shall be wholly repealed, and the Acts set ^- cts - 
 forth in the third part of the said schedule shall be repealed to the 
 
 extent therein mentioned ; provided that the repeal enacted in this 
 Act shall not affect 
 
 (1.) Any right acquired or thing done before the passing of this 
 Act: 
 
 (2.) Any liability accruing before the passing of this Act :
 
 640 APPENDIX. 
 
 (3.) Any penalty, forfeiture, or other punishment incurred or to 
 be incurred in respect of any oifence committed before the 
 passing of this Act : 
 
 (4.) The institution of any investigation or legal proceeding or 
 any other remedy for ascertaining or enforcing any such 
 liability, penalty, forfeiture, or punishment as aforesaid. 
 
 SCHEDULE. 
 PART I. 
 
 ACTS WHOLLY REPEALED, OTHER THAN ACTS OF THE IRISH 
 
 7 Jas. 1, c. 2. 
 1 1 Will. 3, c. 6 (a). 
 13 Ooo. 2, c. 7. 
 20 Geo. 2, c. 44. 
 
 PARLIAMENT. 
 13 Geo. 3, c. 25. 
 14 Geo. 3, c. 84. 
 16 Geo. 3, c. 52. 
 
 6 Geo. 4, c. 67. 
 7 & 8 Viet. c. 66. 
 10 & 11 Viet. c. 83. 
 
 PART II. 
 
 ACTS OF THE IRISH PARLIAMENT WHOLLY REPEALED. 
 14 & 15 Ch.is. 2, c. 13. 2 Anne, c. 14. 19 & 20 Geo. 3, c. 29. 
 23 & 24 Geo. 3, c. 38. 36 Geo. 3, c. 48. 
 
 PART III. 
 
 ACTS PARTIALLY REPEALED. 
 
 4 Geo. 1, c. 9 (Act of Irish Par- So far as it makes perpetual the 
 
 liament). Act of 2 Anne, c. 14. 
 
 6 Geo. 4, c. 50. The whole of sect. 47. 
 
 3 & 4 Will. 4, c. 91. The whole of sect. 37. 
 
 35 & 36 VICT, c. 39. 
 
 An Act for amending the Law in certain cases in relation to Naturaliza- 
 tion. [25th July, 1872.] 
 WHEREAS by a Convention between Her Majesty and the United 
 States of America, supplementary to the Convention of the thirteenth 
 day of May one thousand eight hundred and seventy, respecting 
 naturalization, and signed at Washington on the twenty-third day of 
 February one thousand eight hundred and seventy one, and a copy of 
 which is contained in the schedule to this Act, provision is made in 
 relation to the renunciation by the citizens and subjects therein men- 
 
 () 11 & 12 Wm. 3. (Ruff.)
 
 NATURALIZATION. 641 
 
 tionod of naturalization or nationality in the presence of the officers..- 
 therein mentioned : 
 
 And whereas doubts are entertained whether such provisions are 
 altogether in accordance with the. Naturalization Act, 1870 : And 
 whereas other doubts have arisen with respect to the effect of " The 
 Naturalization Act, 1870," on the rights of women married before the 
 passing of that Act ; and it is expedient to remove such doubts : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, and by the authority of 
 the same, as follows : 
 
 1. This Act may be cited for all purposes as the Naturalization Act, Short title. 
 1872, and this Act and " The Naturalization Act, 1870," may be cited 
 together as "The Naturalization Acts, 1870 and 1872." 
 
 2. Any renunciation of naturalization or of nationality made in Confirms- 
 manner provided by the said supplementary Convention by the persons Delation 
 and under the circumstances in the said Convention in that behalf O f na ti n- 
 mentioned shall be valid to all intents, and shall be deemed to be ality under 
 authorized by the said Naturalization Act, 1870. This section shall theConven- 
 be deemed to take effect from the date at which the said supplementary tlon> 
 Convention' took effect. 
 
 3. Nothing contained in "The Naturalization Act, 1870," shall Jjjjjj* to 
 deprive any married woman of any estate or interest in real or personal p^^rty O f 
 property to which she may have become entitled previously to the married 
 passing of that Act, or affect such estate or interest to her prejudice. women. 
 
 SCHEDULE. 
 
 CONVENTION between Her Majesty and the United States of America, 
 supplementary to the Convention of May 13, 1870, respecting 
 Naturalization. 
 
 Signed at Washington, 23rd February, 1871. 
 
 [Ratifications exchanged at Washington, May <lth, 1871.] 
 WHEREAS by the second article of the Convention between Her 
 Majesty the Queen of the United Kingdom of Great Britain and Ire- 
 land and the United States of America for regulating the citizenship 
 of subjects and citizens of the contracting parties who have emigrated 
 or may emigrate from the dominions of the one to those of the other 
 party, signed at London, on the 13th of May, 1870, it was stipulated 
 that the manner in which the renunciation by such subjects and citi- 
 zens of their naturalization, and the resumption of their native alle- 
 giance, may be made and publicly declared, should be agreed upon by 
 the governments of the respective countries ; Her Majesty the Queen 
 of the United Kingdom of Great Britain and Ireland and the President 
 of the United States of America, for the purpose of effecting such 
 agreement, have resolved to conclude a supplemental Convention, and
 
 642 APPENDIX. 
 
 have named as their plenipotentiaries, that is to say ; Her Majesty 
 the Queen of the United Kingdom of Great Britain and Ireland, Sir 
 Edward Thornton, Knight Commander of the Most Honourable Order 
 of the Bath, and Her Envoy Extraordinary and Minister Plenipoten- 
 tiary to the United States of America ; and the President of the 
 United States of America, Hamilton Fish, Secretary of State ; who 
 have agreed as follows : 
 
 ARTICLE I. 
 
 Any person being originally a citizen of the United States who had, 
 previously to May 13, 1870, been naturalized as a British subject, may 
 at any time before August 10, 1872, and any British subject who, at 
 the date first aforesaid, had been naturalized as a citizen within the 
 United States, may at any time before May 12, 1872, publicly declare 
 his renunciation of such naturalization by subscribing an instrument 
 in writing, substantially in the form hereunto appended, and desig- 
 nated as Annex (A). 
 
 Such remind ation by an original citizen of the United States, of 
 British nationality, shall, within the territories and jurisdiction of the 
 United States, be made in duplicate, in the presence of any court 
 authorized by law for the time being to admit aliens to naturalization, 
 or before the clerk or prothonotary of any such court ; if the declarant 
 be beyond the territories of the United States, it shall be made in 
 duplicate, before any diplomatic or consular officer of the United 
 States. One of such duplicates shall remain of record in the custody 
 of the court or officer in whose presence it was made ; the other shall 
 be, without delay, transmitted to the department of State. 
 
 Such renunciation, if declared by an original British subject, of his 
 acquired nationality as a citizen of the United States, shall, if the 
 declarant be in the United Kingdom of Great Britain and Ireland, be 
 made in duplicate, in the presence of a justice of peace ; if elsewhere 
 in Her Britannic Majesty's dominions, in triplicate, in the presence of 
 any judge of civil or criminal jurisdiction, of any justice of the peace, 
 or of any other officer for the time being authorized by law, in the 
 place in which the declarant is, to administer an oath for any judicial 
 or other legal purpose ; if out of Her Majesty's dominions, in triplicate, 
 in the presence of any officer in the diplomatic or consular service of 
 Her Majesty. 
 
 ARTICLE II. 
 
 The contracting parties hereby engage to communicate each to the 
 other, from time to time, lists of the persons who, within their respective 
 dominions and territories, or before their diplomatic and consular otficers, 
 have declared their renunciation of naturalization, with the dates and 
 places of making such declarations, and such information as to the 
 abode of the declarants, and the times and places of their naturaliza- 
 tion, as they may have furnished. 
 
 ARTICLE III. 
 
 The present Convention shall be ratified by Her Britannic Majesty, 
 and by the President of the United States by and with the advice and
 
 NATURALIZATION. 643 
 
 consent of the Senate thereof, and the ratifications shall be exchanged at 
 Washington as soon as may be convenient. 
 
 In witness whereof, the respective plenipotentiaries have signed the 
 same, and have affixed thereto their respective seals. 
 
 Done at Washington, the twenty-third day of February, in the year 
 of our Lord one thousand eight hundred and seventy-one. 
 
 (L.S.) EDWD. THORNTON. 
 (L.S.) HAMILTON FISH. 
 
 ANNEX (A.) 
 
 I, A. B., of (insert abode), being originally a citizen of the United 
 States of America (or a British subject), and having become natu- 
 ralized within the dominions of Her Britannic Majesty as a British 
 subject (or as a citizen within the United States of America), do hereby 
 renounce my naturalization as a British subject (or citizen of the United 
 States) ; and declare that it is my desire to resume my nationality as a 
 citizen o the United States (or British subject). 
 
 (Signed) A. B.) 
 
 Made and subscribed before me in (insert country or 
 
 other subdivision, and State province, colony, legation, or consulate), this 
 day of , 187 . 
 
 (Signed) E. F., 
 
 Justice of the Peace (or otJier title). 
 
 (L.S.) EDWD. THORNTON. 
 (L.S.) HAMILTON FISH. 
 
 II. AMERICAN ACT. 
 REVISED STATUTES. TITLE XXX. 
 
 Natiiralization. 
 
 Sec. 2165. An alien maybe admitted to become a citizen of the Aliens how- 
 United States in the following manner, and not otherwise : natural- 
 (1.) He shall declare on oath, before a circuit or district court of lzet '' 
 
 the United States, or a district or supreme court of the Declaration 
 
 territories, or a court of record of any of the States having . in 
 common law jurisdiction, and a seal and clerk, two years ' 
 
 at least prior to his admission, that it is bond fide his 1802^" *2 
 
 intention to become a citizen of the United States and to pp . 153', 
 
 renounce for ever all allegiance and fidelity to any foreign 155 ; 26 
 
 prince, potentate, State, or sovereignty, and, pai'ticularly ^ a >' 1824, 
 
 by name, to the prince, potentate, State, or sovereignty v ' ' p< 69 
 of which the alien may be at the time a citizen or 
 subject (b). 
 
 (b) [Campbell v. Gordon, 6 Cranch, 176; Stark v. Chetapeake Ins. Co., 
 7 Cranch, 420 ; Chirack v. Chirack, 2 Wheaton, 259 ; Otborn v. U. S. Bank, 9 
 Wheaton, 827 ; Spratt v. Spratt, 4 Peters, 393.] 
 
 T T 2
 
 644 
 
 APPENDIX. 
 
 Oath to 
 support 
 Constitu- 
 tion of the 
 United 
 States. 
 14 April, 
 1802, v. 2, 
 p. 153. 
 
 Residence 
 in the 
 United 
 States, or 
 State, and 
 good moral 
 character. 
 
 Titles of 
 nobility 
 renounced. 
 
 Aliens 
 honourably 
 discharged 
 from mili- 
 tary service. 
 17 July, 
 1862, v. 
 12, p. 597. 
 
 Minor 
 residents. 
 26 May, 
 1824, v. 4, 
 p. 69. 
 
 ^2.) He shall at the time of his application to be admitted, 
 declare, on oath, before some one of the courts above 
 specified, that he will support the Constitution of the 
 United States, and that he absolutely and entirely re- 
 nounces and abjures all allegiance and fidelity to every 
 foreign prince, potentate, State, or sovereignty, and, par- 
 ticularly by name, to the prince, potentate, State, or 
 sovereignty of which he was before a citizen or subject ; 
 which proceedings shall be recorded by the clerk of the 
 court. 
 
 (3.) It shall be made to appear to the satisfaction of the court 
 admitting such alien that he has resided within the United 
 States five years at least, and within the State or Territory 
 where such court is at the time held, one year at least ; 
 and that during that time he has behaved as a man of a 
 good moral character, attached to the principles of the 
 Constitution of the United States, and well disposed to 
 the good order and happiness of the same ; but the oath 
 of the applicant shall in no case be allowed to prove his 
 residence. 
 
 (4.) In case the alien applying to be admitted to citizenship has 
 borne any hereditary title, or been of any of the orders 
 of nobility in the kingdom or State from which he came, 
 he shall, in addition to the above requisites, make an 
 express renunciation of his title or order of nobility in the 
 court to which his application is made, and his renuncia- 
 tion shall be recorded in the court. 
 
 Sec. 2166. Any alien of the age of 21 years and upwards, who has 
 enlisted, or may enlist, in the armies of the United States, either the 
 regular or volunteer forces, and has been, or may be hereafter, honour- 
 ably discharged, shall be admitted to become a citizen of the United 
 States, upon his petition, without any previous declaration of his inten- 
 tion to become such ; and he shall not be required to prove more than 
 one year's residence within the United States previous to his applica- 
 tion to become such citizen ; and the court admitting such alien shall, 
 in addition to such proof of residence and good moral character, as now 
 provided by law, be satisfied by competent proof of such person's having 
 been honourably discharged from the service of the United States. 
 
 Sec. 2167. Any alien being under the age of 21 years, who has 
 resided in the United States three years next preceding his arrival at 
 that age, and who has continued to reside therein to the time he may 
 make application to be admitted a citizen thereof, may after he arrives 
 at the age of 21 years, and after he has resided five years within 
 the United States, including the three years of his minority, be ad- 
 mitted a citizen of the United States without having made the decla- 
 ration required in the first condition of sec. 2165, but such alien shall 
 make the declaration required therein at the time of his admission ; 
 and shall further declare on oath, and prove to the satisfaction of the 
 court, that, for two years next preceding, it has .been his bond fide 
 intention to become a citizen of the United States ; and he shall in all 
 respects comply with the laws in regard to naturalization.
 
 NATURALIZATION. 645 
 
 Sec. 2168. When any alien, who has complied with the first con- Widow and 
 
 dition in section 2165, dies before he is actually naturalized, the 2J* 
 
 widow and the children of such alien shall be considered as citizens of ^s March' 
 
 the United States, and shall be entitled to all rights and privileges as 1804, v. -2, 
 
 such, upon taking the oaths prescribed by law. P- 293. 
 
 Sec. 2169. The provisions of this title shall apply to aliens of Alien of 
 African nativity, and to persons of African descent. 
 
 Sec. 2170. No alien shall be admitted to become a citizen who has ^d^J 
 
 not for the continued term of five years next preceding his admission SC ent. 
 
 resided within the United States. 14 July, 
 
 Sec. 2171. No alien who is a native citizen or subject, or a denizen 1870, v. 16, 
 
 of any country, State, or sovereignty with which the United States are **' . 
 
 at war, at the time of his application, shal] be then admitted to become ^J. enci 
 
 a citizen of the United States. years in 
 
 See. 2172. The children of persons who have been duly naturalized United 
 
 under any law of the United States, or who, previous to the passing of States. 
 
 any law on that subject by the government of the United States, may l^ T< f' 2 
 
 have become citizens of any one of the States, under the laws thereof, p g-Q 
 
 being under the age of 21' years at the time of the naturalization of Alien ene . 
 
 their parents, shall, if dwelling in the United States, be considered as mies not 
 
 citizens thereof, and the children of persons who now are or have been, admitted. 
 
 citizens of the United States, shall, though born out of the limits and Jg^^'o 
 jurisdiction of the United States, be considered as citizens thereof (c). 15*3^ 
 
 By sec. 2174, foreign seamen who have served for three years on 30 July, 
 
 board a United States merchant vessel, may be naturalized. 1813, v. 3, 
 
 p. 53. 
 Children of 
 persons na- 
 
 APPENDIX B. turalized 
 
 _ under cer- 
 
 tain laws 
 
 ENGLISH AND AMEEICAN EXTRADITION ACTS. 
 
 14 April, 
 1802, v. 2, 
 I. ENGLISH ACTS. 33 & 34 VICT. CHAP. 52. p. 155. 
 
 An Act for amending the Law relating to Hie Extradition of Criminals, tion of sea- 
 
 [9th August, 1870.] men. 
 
 WHEREAS it is expedient to amend the law relating to the surrender 1872, v. 
 to foreign States of persons accused or convicted of the commission of 17, p. 268. 
 certain crimes within the jurisdiction of such States, and to the trial of 
 criminals surrendered by foreign States to this country : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 Preliminary. 
 
 1. This Act may be cited as " The Extradition Act, 1870." 
 
 2. Where an arrangement has been made with any foreign State Where ar- 
 with respect to the surrender to such State of any fugitive criminals, ran 8 cm ' 
 
 (c) [CampbM v. Gordon, 6 Cranch, 176.]
 
 646 
 
 APPENDIX. 
 
 for sur- 
 render of 
 criminals 
 made, 
 Order in 
 Council to 
 apply Act. 
 
 Restric- 
 tions on 
 surrender 
 of crimi- 
 nals. 
 
 Provisions 
 of arrange- 
 ment for 
 surrender. 
 
 Publication 
 and effect 
 of order. 
 
 Her Majesty may, by Order in Council, direct that this Act shall apply 
 in the case of such foreign State. 
 
 Her Majesty may, by the same or any subsequent order, limit the 
 operation of the order, and restrict the same to fugitive criminals who 
 are in or suspected of being in the part of Her Majesty's dominions 
 specified in the order, and render the operation thereof subject to such 
 conditions, exceptions, and qualifications as may be deemed expedient. 
 
 Every such order shall recite or embody the terms of the arrange- 
 ment, and shall not remain in force for any longer period than the 
 arrangement. 
 
 Every such order shall be laid before both Houses . of Parliament 
 within six weeks after it is made, or, if Parliament be not then sitting, 
 within six weeks after the then next meeting of Parliament, and shall 
 also be published in the London Gazette. 
 
 3. The following restrictions shall be observed with respect to the 
 surrender of fugitive criminals : 
 
 (1.) A fugitive criminal shall not be surrendered if the offence in 
 respect of which his surrender is demanded is one of a 
 political character, or if he prove to the satisfaction of the 
 police 'magistrate or the court before whom he is brought 
 on habeas corpus, or to the Secretary of State, that the 
 requisition for his surrender has in fact been made with 
 a view to try or punish him for an offence of a political 
 character : 
 
 (2.) A fugitive criminal shall not be surrendered to a foreign 
 State unless provision is made by the law of that State, or 
 by arrangement, that the fugitive criminal shall not, until 
 he has been restored or had an opportunity of returning 
 to Her Majesty's dominions, be detained or tried in that 
 foreign State for any offence committed prior to his sur- 
 render other than the extradition crime proved by the 
 facts on which the surrender is grounded : 
 
 (3.) A fugitive criminal who has been accused of some offence 
 within English jurisdiction not being the offence for which 
 his surrender is asked, or is undergoing sentence under any 
 conviction in the United Kingdom, shall not be surrendered 
 until after he has been discharged, whether by acquittal or 
 on expiration of his sentence or otherwise : 
 
 (4.) A fugitive criminal shall not be surrendered until the expira- 
 tion of fifteen days from the date of his being committed 
 to prison to await his surrender. 
 
 4. An Order in Council for applying this Act in the case of any 
 foreign State shall not be made unless the arrangement 
 
 (1.) provides for the determination of it by either party to it after 
 the expiration of a notice not exceeding one year ; and 
 
 (2.) is in conformity with the provisions of this Act, and in par- 
 ticular with the restrictions on the surrender of fugitive 
 criminals contained in this Act. 
 
 5. When an order applying this Act in the case of any foreign State 
 has been published in the London Gazette, this Act (after the date speci- 
 fied in the order, or if no date is specified, after the date of the publi-
 
 EXTRADITION. 647 
 
 cation,) shall, so long as the order remains in force, but subject to 
 the limitations, restrictions, conditions, exceptions, and qualifications, if 
 any, contained in the order, apply in the case of such foreign State. 
 An Order in Council shall be conclusive evidence that the arrangement 
 therein referred to complies with the requisitions of this Act, and that 
 this Act applies in the case of the foreign State mentioned in the order, 
 and the validity of such order shall not be questioned in any legal pro- 
 ceedings whatever. 
 
 6. Where this Act applies in the case of any foreign State, every Liability of 
 fugitive criminal of that State who is in or suspected of being in any criminal to 
 part of Her Majesty's dominions, or that part which is specified in surren " er - 
 the order applying this Act (as the case may be), shall be liable to 
 
 be apprehended and surrendered in manner provided by this Act, 
 whether the crime in respect of which the surrender is sought was 
 committed before or after the date of the order, and whether there is 
 or is not any concurrent jurisdiction in any Coxirt of Her Majesty's 
 dominions over that crime (d). 
 
 7. A requisition for the surrender of a fugitive criminal of any Order of 
 foreign State, who is in or suspected of being in the United Kingdom, Secretary 
 shall be made to a Secretary of State by some person recognised by ? a Q j 
 the Secretary of State as a diplomatic representative of that foreign -warrant in 
 State. A Secretary of State may, by order under his hand and seal, United 
 signify to a police magistrate that such requisition has. been made, Kingdom 
 and require him to issue his warrant for the apprehension of the l crime 1S 
 fugitive criminal. political 
 
 If the Secretary of State is of opinion that the offence is one of a character, 
 political character, he may, if he think fit, refuse to send any such 
 order, and may also at any time order a fugitive criminal accused or 
 convicted of such offence to be discharged from custody. 
 
 8. A warrant for the apprehension of a fugitive criminal, whether Issue of 
 accused or convicted of crime, who is in or suspected of being in the warrant by 
 United Kingdom, may be issued magistrate, 
 
 (1.) by a police magistrate on the receipt of the said order of the j us ti c e, &c! 
 Secretary of State, and on such evidence as would in his 
 opinion justify the issue of the warrant if the crime had 
 been committed or the criminal convicted in England; and 
 (2.) by a police magistrate or any justice of the peace in any part 
 of the United Kingdom, on such information or complaint 
 and such evidence or after such proceedings as would in 
 the opinion of the person issuing the warrant justify the 
 issue of a warrant if the crime had been committed or the 
 criminal convicted in that part of the United Kingdom in 
 which he exercises jurisdiction. 
 
 Any person issuing a warrant under this section without an order 
 from a Secretary of State shall forthwith send a report of the fact 
 of such issue, together with the evidence and information or complaint, 
 or certified copies thereof, to a Secretary of State, who may if he think 
 fit order the warrant to be cancelled, and the person who has been appre- 
 hended on the warrant to be discharged. 
 
 A fugitive criminal, when apprehended on a warrant issued without 
 (d) See sec. 2 of the next Act.
 
 648 
 
 APPENDIX. 
 
 Hearing of 
 case and 
 evidence of 
 political 
 character 
 of crime. 
 
 Committal 
 or dis- 
 charge of 
 prisoner. 
 
 Surrender 
 of fugitive 
 to foreign 
 State by 
 warrant of 
 Secretary of 
 State. 
 
 the order of a Secretary of State, shall be brought before some person 
 having power to issue a warrant under this section, who shall by 
 warrant order him to be brought and the prisoner shall accordingly be 
 brought before a police magistrate. 
 
 A fugitive criminal apprehended on a warrant issued without the 
 order of a Secretary of State shall be discharged by the police 
 magistrate, unless the police magistrate, within such reasonable time 
 as, with reference to the circumstances of the case, he may fix, 
 receives from a Secretary of State an order signifying that a requisi- 
 tion has been made for the surrender of such criminal. 
 
 9. When a fugitive criminal is brought before the police magistrate, 
 the police magistrate shall hear the case in the same manner, and have 
 the same jurisdiction and powers, as near as may be, as if the prisoner 
 were brought before him charged with an indictable offence committed 
 in England. 
 
 The police magistrate shall receive any evidence which may be 
 tendered to show that the crime of which the prisoner is accused or 
 alleged to have been convicted is an offence of a political character or 
 is not an extradition crime. 
 
 10. In the case of a fugitive criminal accused of an extradition 
 crime, if the foreign warrant authorizing the arrest of such criminal 
 is duly authenticated, and such evidence is produced as (subject to 
 the provisions of this Act) would, according to the law of England, 
 justify the committal for trial of the prisoner if the crime of which 
 he is accused had been committed in England, the police magistrate 
 shall commit him to prison, but otherwise shall order him to be 
 discharged. 
 
 In the case of a fugitive criminal alleged to have been convicted 
 of an extradition crime, if such evidence is produced as (subject to 
 the provisions of this Act) would, according to the law of England, 
 prove that the prisoner was convicted of such crime, the police magis- 
 trate shall commit him to prison, but otherwise shall order him to be- 
 discharged. 
 
 If he commits such criminal to prison, he shall commit him to 
 the Middlesex House of Detention, or to some other prison in 
 Middlesex, there to await the warrant of a Secretary of State for 
 his surrender, and shall forthwith send to a Secretary of State a 
 certificate of the committal, and such report upon the case as he may 
 think fit. 
 
 11. If the police magistrate commits a fugitive criminal to prison, 
 he shall inform such criminal that he will not be surrendered until 
 after the expiration of fifteen days, and that he has a right to apply for 
 a writ of habeas corpus. 
 
 Upon the expiration of the said fifteen days, or, if a writ of habeas 
 corpus is issued, after the decision of the court upon the return to the 
 writ, as the case may be, or after such further period as may be allowed 
 in either case by a Secretary of State, it shall be lawful for a Secretary 
 of State, by warrant under his hand arid seal, to order the fugitive 
 criminal (if not delivered on the decision of the court) to be sur- 
 rendered to such person as may in his opinion be duly authorized to 
 receive the fugitive criminal by the foreign State from which the
 
 EXTRADITION. 649 
 
 requisition for the surrender proceeded, and such fugitive criminal shall 
 be surrendered accordingly. 
 
 It shall be lawful for any person to whom such warrant is directed 
 and for the person so authorized as aforesaid to receive, hold in 
 custody, and convey within the jurisdiction of such foreign State 
 the criminal mentioned in the warrant ; and if the criminal escapes 
 out of any custody to which he may be delivered on or in pursuance 
 of such warrant, it shall be lawful to retake him in the same manner 
 as any person accused of any crime against the laws of that part of 
 Her Majesty's dominions to which he escapes may be retaken upon 
 an escape. 
 
 12. If the fugitive criminal who has been committed to prison is Discharge 
 not surrendered and conveyed out of the United Kingdom within two apure- 8 n ' 
 mouths after such committal, or, if a writ of habeas corpus is issued, bended if 
 after the decision of the court upon the return to the writ, it shall be not con- 
 luwful for any judge of one of Her Majesty's Superior Courts at 
 Westminster, upon application made to him by or on behalf of the 
 criminal, and upon proof that reasonable notice of the intention to within two 
 make .such application has been given to a Secretary of State, to order months. 
 the criminal to be discharged out of custody, unless sufficient cause is 
 
 shown to the contrary. 
 
 1 3. The warrant of the police magistrate issued in pursuance of this Executu n 
 Act may be executed in any part of the United Kingdom in the same . war . rar 
 manner as if the same had been originally issued or subsequently magistrate, 
 indorsed by a justice of the peace having jurisdiction in the place 
 
 where the same is executed. 
 
 14. Depositions or statements on oath, taken in a foreign State, Depositions 
 and copies of such original depositions or statements, and foreign * ^ e ev '~ 
 certificates of or judicial documents stating the fact of conviction, g^^'vict 
 may, if duly authenticated, be received in evidence in proceedings c . 76. 
 under this Act. 
 
 15. Foreign warrants and depositions or statements on oath, and Authenti- 
 copies thereof, and certificates of or judicial documents stating the ^ a Jj t 
 fact of a conviction, shall be deemed duly authenticated for the pur- an d war . 
 poses of this Act if authenticated in manner provided for the time rants, 
 being by law or authenticated as folio ws : 29 & 30 
 
 (1.) If the warrant purports to be signed by a judge, magistrate, ji ' ' 
 
 or officer of the foreign State where the same was issued ; 
 (2.) If the depositions or statements or the copies thereof purport 
 to be certified under the hand of a judge, magistrate, or 
 officer of the foreign State where the same were taken to 
 be the original depositions or statements, or to be true 
 copies thereof, as the case may require ; and 
 
 (3.) If the certificate of or judicial document stating the fact of 
 conviction purports to be certified by a judge, magistrate, 
 or officer of the foreign State where the conviction took 
 place ; and 
 
 if in every case the warrants, depositions, statements, copies, certificates, 
 and judicial documents (as the case may be) are authenticated by the 
 oath of some witness or by being sealed with the official seal of the 
 minister of justice, or some other minister of state : And all Courts of
 
 650 
 
 APPENDIX. 
 
 Justice, justices, and magistrates shall take judicial notice of such 
 official seal, and shall admit the documents so authenticated by it to be 
 received in evidence without further proof. 
 
 Crimes committed at Sea. 
 
 Jurisdic- 16. Where the crime in respect of which the surrender of a fugitive 
 
 tion as to criminal is sought was committed on board any vessel on the high seas 
 crimes com- w hi cn comes into any port of the United Kingdom, the following pro- 
 mrtted at yigion8 gh&11 haye effect . 
 
 (1.) This Act shall be construed as if any stipendiary magistrate in 
 England or Ireland, and any sheriff or sheriff substitute in 
 Scotland, were substituted for the police magistrate through- 
 out this Act, except the part relating to the execution of 
 the warrant of the police magistrate : 
 
 (2.) The criminal may be committed to any prison to which the 
 person committing him has power to commit persons 
 accused of the like crime : 
 
 (3.) If the fugitive criminal is apprehended on a warrant issued 
 without the order of a Secretary of State, he shall be 
 brought before the stipendiary magistrate, sheriff, or sheriff 
 substitute who issued the warrant, or who has jurisdiction 
 in the port where the vessel lies, or in the place nearest 
 to that port. 
 
 Fugitive Criminals in British Possessions. 
 
 Proceed- 1 7. This Act, when applied by Order in Council, shall, unless it is 
 
 ings as to otherwise provided by such order, extend to every British possession in 
 fugitive t ne same manner as if throughout this Act the British possession were 
 in* BrHi h substituted for the United Kingdom or England, as the case may require, 
 us. b ut with the following modifications ; namely, 
 
 (1.) The requisition for the surrender of a fugitive criminal who 
 is in or suspected of being in a British possession may be 
 made to the governor of that British possession by any 
 person recognized by that governor, as a consul general, 
 consul, or vice-consul, or (if the fugitive criminal has 
 escaped from a colony or dependency of the foreign State 
 on behalf of which the requisition is made) as the governor 
 of such colony or dependency : 
 
 (2). No warrant of a Secretary of State shall be required, and all 
 powers vested in or acts authorized or required to be done 
 under this Act by the police magistrate and the Secretary 
 of State, or either of them, in relation to the surrender of 
 a fugitive criminal, may be done by the governor of the 
 British possession alone : 
 (3.) Any prison in the British possession may be substituted for 
 
 a prison in Middlesex : 
 
 (4.) A judge of any court exercising in the British possession the 
 like powers as the Court of Queen's Bench exercises in 
 England may exercise the power of discharging a criminal 
 when not conveyed within two months out of such British 
 possession.
 
 EXTRADITION. 651 
 
 1 8. If by any law or ordinance, made before or after the passing of Saving of 
 this Act by the Legislature of any British possession, provision is made 
 
 lor carrying into effect within such possession the surrender of fugitive 
 criminals who are in or suspected of being in such British possession, 
 Her Majesty may, by the Order in Council applying this Act in the case 
 of any foreign State, or by any subsequent Order, either 
 
 suspend the operation within any such British possession of this 
 Act, or of any part thereof, so far as it relates to such foreign 
 State, and so long as such law or ordinance continues in force, 
 there, and no longer ; 
 
 or direct that such law or ordinance, or any part thereof, shall 
 have effect in such British possession, with or without modifi- 
 cations and alterations, as if it were part of this Act. 
 
 General Provisions. 
 
 19. Where, in pursuance of any arrangement with a foreign State, Criminal 
 any person accused or convicted of any crime which, if committed in surrender- 
 England, would be one of the crimes described in the first schedule to ec ^ ty 
 this Act is surrendered by that foreign State, such person shall not, g^Jf " O t 
 until he has been restored or had an opportunity of returning to such triable for 
 foreign State, be triable or tried for any offence committed prior to the previous 
 surrender in any part of Her Majesty's dominions other than such of the crime 
 
 d crimes as may be proved by the facts on which the surrender is ^t' ^ 
 grounded. 
 
 20. The forms set forth in the second schedule to this Act, or forms As to use 
 as near thereto as circumstances admit, may be used in all matters to of forms in 
 which such forms refer, and in the case of a British possession may be se ?. j 
 
 so used, nrutatis mutandis, and when used shall be deemed to be valid 
 and sufficient in law. 
 
 21. Her Majesty may, by Order in Council, revoke or alter, subject Revocation, 
 to the restrictions of this Act, any Order in Council made in pursuance &c -> of . 
 
 of this Act, and all the provisions of this Act with respect to the original * er .l n 
 order shall (so far as applicable) apply, mutatis mutandis, to any such 
 new order. 
 
 22. This Act (except so far as relates to the execution of warrants in Application 
 the Channel Islands) shall extend to the Channel Islands and Isle of f Act in 
 Man in the same manner as if they were part of the United Kingdom ; jgia^jsand 
 and the royal courts of the Channel Islands are hereby respectively Isle of Man. 
 authorized and required to register this Act. 
 
 23. Nothing in this Act shall affect the lawful powers of Her Majesty Saving for 
 or of the Governor-General of India in Council to make treaties for Indian 
 the extradition of criminals with Indian native States, or with other 
 
 Asiatic States conterminous with British India, or to carry into execu- 
 tion the provisions of any such treaties made either before or after the 
 passing of this Act. 
 
 24. The testimony of any witness may be obtained in relation to any Power of 
 criminal matter pending in any Court or tribunal in a foreign State in 
 
 like manner as it may be obtained in relation to any civil matter under 
 
 the Act of the session of the nineteenth and twentieth years of the reign dence in 
 
 of Her present Majesty, chapter one hundred and thirteen, intituled United 
 
 Kingdom.
 
 652 
 
 APPENDIX. 
 
 Foreign 
 State in- 
 cludes 
 
 Definition 
 of terms. 
 " British 
 
 "Legisla- 
 ture : " 
 
 "Gover- 
 nor : " 
 
 "Extra- 
 dition 
 crime : " 
 
 4 ' Convic- 
 tion : " 
 
 " Fugitive 
 criminal : " 
 
 ' ' Fugitive 
 criminal of 
 a foreign 
 State : " 
 "Secretary 
 of State : " 
 
 "Police 
 magis- 
 trate : " 
 
 "Justice of 
 peace : " 
 
 " War- 
 rant." 
 
 " An Act to provide for taking evidence in Her Majesty's dominions in 
 relation to civil and commercial matters pending before foreign tri- 
 bunals ; " and all the provisions of that Act shall be construed as if the 
 term civil matter included a criminal matter, and the term cause 
 included a proceeding against a criminal : Provided that nothing in 
 this section shall apply in the case of any criminal matter of a political 
 character. 
 
 25. For the purposes of this Act, every colony, dependency, and 
 constituent part of a foreign State, and every vessel of that State, shall 
 (except where expressly mentioned as distinct in this Act) be deemed 
 to be within the jurisdiction of and to be part of such foreign 
 State. 
 
 26. In this Act, unless the context otherwise requires, 
 
 The term " British possession " means any colony, plantation, 
 island, territory, or settlement within Her Majesty's domi- 
 nions, and not within the United Kingdom, the Channel 
 Islands, and Isle of Man ; and all colonies, plantations, 
 islands, territories, and settlements under one legislature, as 
 hereinafter denned, are deemed to be one British posses- 
 sion : 
 
 The term "legislature" means any person or persons who can 
 exercise legislative authority in a British possession, and 
 where there are local legislatures as well as a central legisla- 
 ture, means the central legislature only : 
 
 The term " governor " means any person or persons administering 
 the government of a British possession, and includes the 
 governor of any part of India : 
 
 The term " extradition crime " means a crime which, if committed 
 in England or within English jurisdiction, would be one of 
 the crimes described in the first schedule to this Act : 
 
 The terms " conviction " and " convicted " do not include or refer 
 to a conviction which under foreign law is a conviction for 
 contumacy, but the term " accused person " includes a person 
 so convicted for contumacy : 
 
 The term " fugitive criminal " means any person accused or con- 
 victed of an extradition crime committed within the jurisdic- 
 tion of any foreign State who is in or is suspected of being 
 in some part of Her Majesty's dominions ; and the term 
 " fugitive criminal of a foreign State " means a fugitive 
 criminal accused or convicted of an extradition crime com- 
 mitted within the jurisdiction of that State : 
 
 The term " Secretary of State " means one of Her Majesty's 
 Principal Secretaries of State : 
 
 The term " police magistrate " means a chief magistrate of the 
 metropolitan police courts, or one of the other magistrates of 
 the metropolitan police court in Bow Street : 
 
 The term "justice of the peace " includes in Scotland any sheriff, 
 sheriff's substitute, or magistrate : 
 
 The term " warrant," in the case of any foreign State, includes 
 any judicial document authorizing the arrest of a person 
 accused or convicted of crime.
 
 EXTRADITION. 653 
 
 Repeal of Acts. 
 
 27. The Acts specified in the third schedule to this Act are hereby Repeal of 
 repealed as to the whole of Her Majesty's dominions ; and this Act ^ c . ts m 
 (with the exception of anything contained in it which is inconsistent , j F 
 with the treaties referred to in the Acts so repealed) shall apply (as 
 regards crimes committed either before or after the passing of this Act), 
 in the case of the foreign States with which those treaties are made, in 
 the same manner as if an Order in Council referring to such treaties 
 had been made in pursuance of this Act, and as if such order had 
 directed that every law and ordinance which is in force in any British 
 possession with respect to such treaties should have effect as part of 
 this Act. 
 
 Provided that if any proceedings for or in relation to the surrender 
 of a fugitive criminal have been commenced under the said Acts 
 previously to the repeal thereof, such proceedings may be completed, 
 and the fugitive surrendered, in the same manner as if this Act had 
 not 
 
 SCHEDULES. 
 
 FIRST SCHEDULE. 
 
 LIST OF CEIMES. 
 
 The following list of crimes is to be construed according to the law 
 existing in England, or in a British possession (as the case may be), at 
 the date of the alleged crime, whether by common law or by statute 
 made before or after the passing of this Act : 
 
 Murder, and attempt and conspiracy to murder. 
 
 Manslaughter. 
 
 Counterfeiting and altering money and uttering counterfeit or 
 
 altered money. 
 Forgery, counterfeiting, and altering, and uttering what is forged 
 
 or counterfeited or altered. 
 Embezzlement and larceny. 
 Obtaining money or goods by false pretences. 
 Crimes by bankrupts against bankruptcy law. 
 Fraud by a bailee, banker, agent, factor, trustee, or director, or 
 member, or public officer of any company made criminal by 
 any Act for the time being in force. 
 Rape. 
 Abduction. 
 Child stealing. 
 Burglary and housebreaking. 
 Arson. 
 
 Robbery with violence. 
 Threats by letter or otherwise with intent to extort.
 
 APPENDIX. 
 
 Piracy by law of nations. 
 
 Sinking or destroying a vessel at sea, or attempting or conspiring 
 
 to do so. 
 Assaults on board a ship on the high seas with intent to destroy 
 
 life or to do grievous bodily harm. 
 Revolt or conspiracy to revolt by two or more persons on board 
 
 a ship on the high seas against the authority of the master. 
 
 SECOND SCHEDULE. 
 Form of Order of Secretary of State to the Police Magistrate. 
 
 To the chief magistrate of the metropolitan police courts or other 
 magistrate of the metropolitan police court in Bow Street 
 [or the stipendiary magistrate at ]. 
 
 WHEREAS, in pursuance of an arrangement with , 
 
 referred to in an Order of Her Majesty in Council dated the 
 day of , a requisition has been made to me, 
 
 , one of Her Majesty's Principal Secretaries of State, 
 by , the diplomatic representative of 
 
 , for the surrender of 
 
 late of , accused [or convicted] of the com- 
 
 mission of the crime of 
 within the jurisdiction of 
 
 Now I hereby, by this my order under my hand and seal, signify to 
 you that such requisition has been made, and require you to issue your 
 warrant for the apprehension of such fugitive, provided that the condi- 
 tions of The Extradition Act, 1870, relating to the issue of such 
 warrant, are in your judgment complied with. 
 
 Given under the hand and seal of the undersigned, one of Her 
 Majesty's Principal Secretaries of State, this 
 day of 18 . 
 
 Form of Warrant of Apprehension by Order of Secretary of State. 
 Metropolitan police 1 -po all and each of the constables of the metro- 
 
 of ] 
 
 WHEREAS the Right Honourable 
 
 one of Her Majesty's Principal Secretaries of State, by order under his 
 hand and seal, hath signified to me that requisition hath been duly 
 made to him for the surrender of 
 
 late of accused [or convicted] of the 
 
 commission of the crime of within the 
 
 jurisdiction of : This is therefore to command 
 
 you in her Majesty's name forthwith to apprehend the said
 
 EXTRADITION. 655 
 
 pursuant to The Extradition Act, 1870, wherever 
 he may be found in the United Kingdom or Isle of Man, and bring 
 him before me or some other [* magistrate sitting in this court] to show 
 cause why he should not be surrendered in pursuance of the said Extra- 
 dition Act, for which this shall be your warrant. 
 
 Given under my hand and seal at [* Bow Street, one of the police 
 courts of the metropolis] this day of 
 
 18 . 
 
 J. P. 
 * Note. Alter as required. 
 
 Form of Warrant of Apprehension ivithout Order of Secretary 
 of State. 
 
 Metropolitan police 
 
 district, [or county or 
 
 borough of ] 
 
 To all and each of the constables of the metro- 
 politan police force [or of the county or borough 
 to wit. of ]. 
 
 WHEREAS it has been shown to the undersigned, one of Her 
 Majesty's justices of the peace in and for the metropolitan police 
 district [or the said county or borough of ] that 
 
 late of is accused [or convicted] of the 
 
 commission of the crime of within the jurisdiction 
 
 of : This is therefore to command you in Her 
 
 Majesty's name forthwith to apprehend the said and 
 
 to bring him before me or some other magistrate sitting at this court 
 [or one of Her Majesty's justices of the peace in and for the county 
 [or borough] of ] to be further dealt with according to 
 
 law, for which this shall be your warrant. 
 
 Given under my hand and seal at Bow Street, one of the police 
 courts of the metropolis, [or in the county or 
 
 borough aforesaid] this day of 
 
 18 
 
 J. P. 
 
 Form 'of Warrant for bringing Prisoner before the Police 
 Magistrate. 
 
 To constable of the police force of 
 
 County [*] and to all other peace officers of 
 
 the said county [or borough] of 
 
 WHEREAS late of accused [or alleged 
 
 to be convicted] of the commission of the crime of 
 within the jurisdiction of has been apprehended and 
 
 brought before the undersigned, one of Her Majesty's justices of the 
 peace in and for the said county [or borough] of
 
 656 APPENDIX. 
 
 And whereas by The Extradition Act, 1870, he is required to be 
 brought before the chief magistrate of the metropolitan police court, 
 or one of the police magistrates of the metropolis sitting at Bow Street, 
 within the metropolitan police district [or the stipendiary magistrate 
 for ] : This is therefore to command you, the said 
 
 constable, in Her Majesty's name forthwith to take and convey the 
 said to the metropolitan police district [or the said 
 
 ] and there carry him before the said chief 
 
 magistrate or one of the police magistrates of the metropolis sitting at 
 Bow Street within the said district [or before a stipendiary magistrate 
 sitting in the said ] to show cause why he should not 
 
 be surrendered in pursuance of The Extradition Act, 1870, and 
 otherwise to be dealt with in accordance with law, for which this shall 
 be your warrant. 
 
 Given under my hand and seal at in the county 
 
 [or borough] aforesaid, this day of 
 
 18 
 
 J. P. 
 
 Form of Warrant of Committal. 
 
 Metropolitan police ) T O one of the constables of the 
 
 district [or the county f metropolitan police force, [or of the police 
 
 or borough of ] I f orce O f the county or borough of ], 
 
 and to the keeper of the 
 
 BE it remembered, that on this day of 
 
 in the year of our Lord late of 
 
 is brought before me 
 
 the chief magistrate of the metropolitan police courts [or one of the 
 police magistrates of the metropolis] sitting at the police court in Bow 
 Street, within the metropolitan police district, [or a stipendiary magis- 
 trate for ,] to show cause why he should not be 
 surrendered in pursuance of The Extradition Act, 1870, on the ground 
 of his being accused [or convicted] of the commission of the crime 
 of within the jurisdiction of , and 
 forasmuch as no sufficient cause has been shown to me why he should 
 not be surrendered in pursuance of the said Act : 
 
 This is therefore to command you, the said constable, in Her Majesty's 
 name forthwith to convey and deliver the body of the said 
 
 into the custody of the said keeper of the at 
 
 , and you the said keeper to receive the said 
 
 into your custody, and him there safely to keep 
 
 until he is thence delivered pursuant to the provisions of the said 
 Extradition Act, for which this shall be your warrant. 
 
 Given under my hand and seal at Bow Street, one of the police 
 courts of the metropolis, [or at the said ] this 
 
 day of 18 . 
 
 J. P.
 
 EXTRADITION. 
 
 657 
 
 Form nf Warrant of Secretary of State for Surrender of Fugitive. 
 
 To the keeper of and 
 
 to 
 
 WHEREAS late of accused 
 
 [or convicted] of the commission of the crime of 
 
 within the jurisdiction of , was delivered into the 
 
 custody of you the keeper of by 
 
 warrant dated pursuant to the Extradition 
 
 Act, 1870 : 
 
 Now I do hereby, in pursuance of the said Act, order you the said 
 keeper to deliver the body of the said into 
 
 the custody of the said , and I command you the 
 
 said to receive the said into your 
 
 custody, and to convey him within the jurisdiction of the said 
 , and there place him in the custody of any person 
 or persons appointed by the said to receive him, 
 
 for which this shall be your warrant. 
 
 Given under the hand and seal of the undersigned, one of Her 
 Majesty's Principal Secretaries of State, thia 
 day of 
 
 THIRD SCHEDULE. 
 
 Year and Chapter. 
 
 6 & 7 Viet. c. 75. 
 6 & 7 Viet. c. 76. 
 8 & 9 Viet. c. 120. 
 25 & 26 Viet. c. 70. 
 29 & 30 Viet. c. 121. , 
 
 An Act for giving effect to a convention between Her 
 Majesty and the King of the French for the appre- 
 hension of certain offenders. 
 
 An Act for giving effect to a treaty between Her 
 Majesty and the United States of America for the 
 apprehension of certain offenders. 
 
 An Act for facilitating execution of the treaties with 
 France and the United States of America for the 
 apprehension of certain offenders. 
 
 An Act for giving effect to a convention between Her 
 Majesty and the King of Denmark for the mutual 
 surrender of criminals. 
 
 An Act for the amendment of the law relating to 
 treaties of extradition. 
 
 36 & 37 VICT. CHAP. 60. 
 
 An Act to amend the Extradition Act, 1870. [5th August, 1873.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and with 
 
 the advice and consent of the Lords Spiritual and Temporal, and
 
 658 
 
 APPENDIX. 
 
 Construc- 
 tion of Act 
 and short 
 title. 
 33 & 34 
 
 tion of sect. 
 6 of 33 & 
 34 Viet, 
 c. 52. 
 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 1. This Act shall be construed as one with the Extradition Act, 1870, 
 (in this Act referred to as the principal Act,) and the principal Act and 
 this Act maybe cited together as the Extradition Acts, 1870 and 1873, 
 vIciT c.~52- an( l this Act may be cited alone as the Extradition Act, 1873. 
 Explana- ^' Whereas by section six of the principal Act it is enacted as 
 
 follows : 
 
 " Where this Act applies in the case of any foreign State, every 
 fugitive criminal of that State who is in or suspected of being in any 
 part of Her Majesty's dominions, or that part which is specified in the 
 order applying this Act (as the case may be), shall be liable to be 
 apprehended and surrendered in manner provided by this Act, whether 
 the crime in respect of which the surrender is sought was committed 
 before or after the date of the order, and whether there is or is not any 
 concurrent jurisdiction in any Court of Her Majesty's dominions over 
 that crime." 
 
 And whereas doubts have arisen as to the application of the said 
 section to crimes committed before the passing of the principal Act, and 
 it is expedient to remove such doubts, it is therefore hereby declared 
 that 
 
 A crime committed before the date of the order includes in the 
 said section a crime committed before the passing of the 
 principal Act, and the principal Act and this Act shall be 
 construed accordingly. 
 
 3. Whereas a person who is accessory before or after the fact, or 
 counsels, procures, commands, aids, or abets the commission of any 
 indictable offence, is by English law liable to be tried and punished as 
 if he were the principal offender, but doubts have arisen whether such 
 person as well as the principal offender can be surrendered under the 
 principal Act, and it is expedient to remove such doubts ; it is therefore 
 hereby declared that 
 
 Every person who is accused or convicted of having counselled, 
 procured, commanded, aided, or abetted the commission of 
 any extradition crime, or of being accessory before or after 
 the fact to any extradition crime, shall be deemed for the 
 purposes of the principal Act and this Act to be accused or 
 convicted of having committed such crime, and shall be liable 
 to be apprehended and surrendered accordingly. 
 
 4. Be it declared, that the provisions of the principal Act relating to 
 depositions and statements on oath taken in a foreign State, and copies 
 
 34 Viet. of such original depositions and statements, do and shall extend to affir- 
 52, as to mations taken in a foreign State, and copies of such affirmations. 
 
 Liability of 
 accessories 
 to be sur- 
 rendered. 
 
 Explana- 
 tion of sect. 
 
 statements 
 on oath in- 
 cluding 
 affirma- 
 tions. 
 Power of 
 
 evidence in a PP ea: " n g before him for the purpose in like manner as if such witness 
 United appeared on a charge against some defendant for an indictable offence, 
 Kingdom and shall certify at the foot of the depositions so taken that such evi- 
 
 5. A Secretary of State may, by order under his hand and seal, 
 require a police magistrate or a justice of the peace to take evidence for 
 the purposes of any criminal matter pending in any court or tribunal in 
 any foreign State ; and the police magistrate or justice of the peace, 
 upon the receipt of such order, shall take the evidence of every witness
 
 EXTRADITION. 659 
 
 dence was taken before him, and shall transmit the same to the Secre- for foreign 
 tary of State ; such evidence may be taken in the presence or absence of criminal 
 the person charged, if any, and the fact of such presence or absence m 
 shall be stated in such deposition. 
 
 Any person may, after payment or tender to him of a reasonable sum 
 for his costs and expenses in this behalf, be compelled, for the purposes 
 of this section, to attend and give evidence and answer questions and 
 produce documents, in like manner and subject to the like conditions as 
 he may in the case of a charge preferred for an indictable offence. 
 
 Every person who wilfully gives false evidence before a police 
 magistrate or justice of the peace under this section shall be guilty of 
 perjury. 
 
 Provided that nothing in this section shall apply in the case of any 
 criminal matter of a political character. 
 
 6. The jurisdiction conferred by section sixteen of the principal Act Explana- 
 on a stipendiary magistrate, and a sheriff or sheriff substitute, shall be * 1 n s ^ c * - 
 deemed to be in addition to, and not in derogation or exclusion of, the g^ yj ct 
 jurisdiction of the police magistrate. c. 52. 
 
 7. For the purposes of the principal Act and this Act a diplomatic Explana- 
 representative of a foreign State shall be deemed to include any tion of dip- 
 person recognised by the Secretary of State as a consul-general of lomatic 
 that State, and a consul or vice-consul shall be deemed to include any ffP 1 * 8 "**" 
 person recognised by the governor of a British possession as a consular C . jn8u i f 
 officer of a foreign State. 
 
 8. The principal Act shall be construed as if there were included Addition 
 in the first schedule to that Act the list of crimes contained in the * ^ st f 
 schedule to this Act. 
 
 SCHEDULE. 
 
 LIST OF CRIMES. 
 
 The following list of crimes is to be construed according to the law 
 existing in England or in a British possession (as the case may be) at 
 the date of the alleged crime, whether by common law or by statute 
 made before or after the passing of this Act : 
 
 Kidnapping and false imprisonment. 
 
 Perjury, and subornation of perjury, whether under common or 
 statute law. 
 
 Any indictable offence under the Larceny Act, 1861, or any Act 24 4. 25 
 amending or substituted for the same, which is not included in the 
 ' first schedule to the principal Act. 
 
 Any indictable offence under the Act of the session of the twenty- 
 fourth and twenty-fifth years of the reign of Her present Majesty, 
 chapter ninety-seven, "To consolidate and amend the 'statute law of 
 England and Ireland relating to malicious injuries to property," or any 
 Act amending or substituted for the same, which is not included in 
 the first schedule to the principal Act. 
 
 r r 2
 
 660 
 
 APPENDIX. 
 
 Any indictable offence under the Act of the session of the twenty- 
 fourth and twenty-fifth years of the reign of Her present Majesty, 
 chapter ninety-eight, " To consolidate and amend the statute law of 
 England and Ireland, relating to indictable offences by forgery," or 
 any Act amending or substituted for the same, which is not included 
 in the first schedule to the principal Act. 
 
 Any indictable offence under the Act of the session of the twenty- 
 fourth and twenty-fifth years of the reign of Her present Majesty, 
 chapter ninety-nine, " To consolidate and amend the statute law of the 
 United Kingdom against offences relating to the coin," or any Act 
 amending or substituted for the same, which is not included in the first 
 schedule to the principal Act. 
 
 Any indictable offence under the Act of the session of the twenty- 
 fourth and twenty-fifth years of the reign of Her present Majesty, 
 chapter one hundred, " To consolidate and amend the statute law of 
 England and Ireland relating to offences against the person," or any 
 Act amending or substituted for the same, which is not included in 
 the first schedule to the principal Act. 
 
 Any indictable offence under the laws for the time being in force in 
 relation to bankruptcy which is not included in the first schedule to 
 the principal Act. 
 
 Existing English Extradition Treaties. 
 
 Extradition treaties are now in force between England and Austria 
 (3rd December, 1873); Belgium (20th May, 1876); Brazil (13th 
 November, 1872) ; Denmark (31st March, 1873) ; France (13th 
 February, 1843); Germany (14th May, 1872); Hayti (7th December, 
 1874) ; Honduras (6th January, 1874) ; Italy (5th February and 7th 
 May, 1873); The Netherlands (10th June, 1874); Sweden and 
 Norway (26th June, 1873) ; Switzerland (31st March, 1874) ; and 
 the United States (9th August, 1842). 
 
 Fugitives 
 from the 
 justice of 
 a foreign 
 country. 
 12th Aug. 
 1848, c. 
 107, s. 1, 
 v. 9, p. 
 302. 
 
 II. AMERICAN ACT. 
 REVISED STATUTES, TITLE LXVL, EXTRADITION. 
 
 Sec. 5270. Whenever there is a treaty or convention for extra- 
 dition between the government of the United States and any foreign 
 government, any justice of the Supreme Court, circuit judge, district 
 judge, commissioner authorized to do so by any of the courts of the 
 United States, or judge of a court of record of general jurisdiction of 
 any State, may, upon complaint made under oath charging any person 
 found within the limits of any State, district, or territory, with having 
 committed within the jurisdiction of any such foreign government any 
 of the crimes provided for by such treaty or convention, issue his war- 
 rant for the apprehension of the person so charged, that he may be 
 brought before such justice, judge, or commissioner, to the end that 
 the evidence of criminality may be heard and considered. If, on such 
 hearing, he deems the evidence sufficient to sustain the charge under the 
 provisions of the proper treaty or convention, he shall certify the same,
 
 EXTRADITION. 661 
 
 together with a copy of all the testimony taken before him, to the 
 Secretary of State, that a warrant may issue upon the requisition of the 
 proper authorities of such foreign government, for the surrender of such 
 pereon, according to the stipulations of the treaty or convention ; and he 
 shall issue his warrant for the commitment of the person so charged to 
 the proper jail, there to remain until such surrender shall be made (/). 
 
 Sec. 5271. In every case of complaint, and of a hearing upon the Evidence 
 return of the warrant of arrest, copies of the depositions, upon which an n . 
 original warrant in any foreign country may have been granted, certi- i^th^ue 
 fled under the hand of the person issuing such warrant, and attested 1848, c. 
 upon the oath of the party producing them to be true copies of the 167, s. 2. 
 original depositions, may be received in evidence of the criminality of ^ ^ 1J< 
 the person so apprehended, if they are authenticated in such manner as 22nd June 
 would entitle them to be received for similar purposes by the tribunals i860, c. 
 of the foreign country from which the accused party escaped. The 184. v. 
 certificate of the principal diplomatic officer or consular officer of the 1 ^' P- ^- 
 United States resident in such foreign country shall be proof that any 
 paper or other document so offered is authenticated in the manner re- 
 quired by this section (g) 
 
 Sec. 5272. It shall be lawful for the Secretary of State, under his Surrender 
 hand and seal of office, to order the person so committed to be delivered ^ ve ' e ugl " 
 to such pereon as shall be authorized, in the name and on behalf of i2th Aug. 
 such foreign government, to be tried for the crime of which such person 1848, c. 
 shall be so accused, and such person shall be delivered up accordingly ; 167, s. 3, 
 and it shall be lawful for the person so authorized to hold such person g'^' **' 
 in custody and to take him to the territory of such foreign government, 
 pursuant to such treaty. If the person so accused shall escape out of 
 any custody to which he shall be committed, or to which he shall be 
 delivered, it shall be lawful to retake such person in the same manner 
 as any person accused of any crime against the laws in force in that part 
 of the United States to which he shall so escape, may be retaken on an 
 escape (li). 
 
 Sec. 5273. Whenever any person who is committed under this title, Time al- 
 or any treaty, to remain until delivered up in pursuance of a requisition, ^ ... 
 is to be delivered up and conveyed out of the United States within two ^j on 
 calendar months after such commitment, over and above the time actually V. 9, p. 
 required to convey the prisoner from the jail to which he was committed, 303. 
 by the readiest way, out of the United States, it shall be lawful for any 
 judge of the United States, or of any State upon application made to him 
 by or on behalf of the person so committed, and upon proof made to him 
 that reasonable notice of the intention to make such application has been 
 given to the Secretary of State, to order the person so committed to be 
 discharged out of custody, unless sufficient cause is shown to such judge 
 why such discharge ought not to be ordered. 
 
 Sec. 5274. The provisions of this title relating to the surrender of Continu- 
 ance of 
 
 (/) {In re Kaine, 11 Howard, 103; Ex pnrte Von Aerman, 3 Blatchford, 
 160 ; In re Heinrich, 5 ibid. 414; Case of J. F. Dos Santos, 2 Brock, 493 ; 
 U. S. v. Davis, 2 Sumner, 9'2 ; The Britisk Prisonvns,\ Wood & M. 6. j 
 
 (>j) [In re Kaine, 14 Howard, 103; In re lleinrick, 5 Blatchford, 414; In ru 
 Francois Farez, 7 ibid. 345.] 
 
 (h) [In re Kaine, 14 Howard, 103.]
 
 662 
 
 APPENDIX. 
 
 provisions 
 limited. 
 Ib. 3rd 
 March, 
 1869, c. 
 141, s. 1, 
 v. 15, p. 
 337. 
 
 persons who have committed crimes in foreign countries, shall continue 
 in force during the existence of any treaty of extradition with any 
 foreign government, and no longer. 
 
 The other sections of this title (Sees. 5275 to 5280) relate to the 
 mode in which a person demanded by the United States from a foreign 
 country is to be protected and guarded, to fugitives from one State of 
 the Union to another, and to the arrest of seamen deserting from ships 
 in ports of the United States. 
 
 Existing American Extradition Treaties. 
 
 Besides the treaties with England and France mentioned in the text, 
 the United States have extradition treaties with Austria (proclaimed 
 15th December, 1856); Baden (19th May, 1857); Bavaria (12th 
 September, 1853) ; Belgium (1st May, 1874) ; Dominican Republic 
 (24th October, 1867) ; Ecuador (24th December, 1873) ; German 
 (North) Confederation (22nd February, 1868) ; Hayti (3rd November, 
 1864) ; Italy (30th September, 1868, and llth May, 1869) ; Mexico 
 (20th June, 1862) ; Nicaragua (25th June, 1870) ; Orange Free 
 State (23rd August, 1873) ; Peru (27th July, 1874) ; Prussia (16th 
 June, 1852, and 22nd February, 1868); Salvador (4th March, 1874); 
 Sweden and Norway (21st December, 1860) ; Swiss Confederation 
 (9th November, 1855); Venezuela (25th September, 1861). 
 
 APPENDIX C. 
 
 ENGLISH AND AMERICAN FOREIGN ENLISTMENT ACTS. 
 I. ENGLISH ACT. 33 & 34 VICT. CHAP. 90. 
 
 An Act to regulate the conduct of Her Majesty's Subjects during the 
 existence of hostilities between foreign States with which Her Majesty 
 is at peace. [9th August, 1870.] 
 
 WHEREAS it is expedient to make provision for the regulation of the 
 conduct of Her Majesty's subjects during the existence of hostilities 
 between foreign States with which Her Majesty it at peace : 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 Preliminary. 
 
 Short title 1- This Act may be cited for all purposes as " The Foreign Enlist- 
 
 of Act. ment Act, 1870." 
 
 Applica- 2. This Act shall extend to all the dominions of Her Majesty, 
 
 tion of Act. including the adjacent territorial waters. 
 
 Commence- 3. This Act shall come into operation in the United Kingdom im-
 
 FOREIGN ENLISTMENT. 663 
 
 mediately on the passing thereof, and shall be proclaimed in every nient of 
 British possession by the governor thereof as soon as may be after he Act> 
 receives notice of this Act, and shall come into operation in that British 
 possession on the day of such proclamation, and the time at which this 
 Act comes into operation in any place is, as respects such place, in this 
 Act referred to as the commencement of this Act. 
 
 llle<jal Enlistment. 
 
 4. If any person, without the license of Her Majesty, being a British Penalty on 
 subject, within or without Her Majesty's dominions, accepts or agrees enlistment 
 to accept any commission or engagement in the military or naval service in , f ( ei . v -" r e 
 of any foreign State at war with any foreign State at peace with Her g tate 
 Majesty, and in this Act referred to as a friendly State, or whether a 
 
 British subject or not within Her Majesty's dominions, induces any 
 other person to accept or agree to accept any commission or engagement 
 in the military or naval service of any such foreign State as aforesaid, 
 He shall be guilty of an offence against this Act, and shall be 
 punishable by fine and imprisonment, or either of such punish- 
 ments, at the discretion of the Court before which the offender is 
 convicted ; and imprisonment, if awarded, may be either with or 
 without hard labour. 
 
 5. If any person, without the license of Her Majesty, being a Penalty on 
 British subject, quits or goes on board any ship with a view of quitting leaving Hor 
 Her Majesty's dominions, with intent to accept any commission or Majesty s 
 engagement in the military or naval service of any foreign State at war ^"^n'teut 
 Avith a friendly State, or, whether a British subject or not, within Her to serve 
 Majesty's dominions, induces any other person to quit or to go on board a foreign 
 any ship with a view of quitting Her Majesty's dominions with the like State- 
 intent, 
 
 He shall be guilty of an offence against this Act, and shall be 
 punishable by fine and imprisonment, or either of such punish- 
 ments, at the discretion of the Court before which the offender is 
 convicted ; and imprisonment, if awarded, may be either with or 
 without hard labour. 
 
 6. If any person induces any other person to quit Her Majesty's Penalty on 
 dominions or to embark on any ship within Her Majesty's dominions embarking 
 
 under a misrepresentation or false representation of the service in which P ersons 
 
 . , , T .,, .-, . i .1 , i umler false 
 
 such person is to be engaged, with the intent or in order that such re presenta- 
 
 person may accept or agree to accept any commission or engagement in tions as to 
 the military or naval service of any foreign state at war with a friendly service. 
 State, 
 
 He shall be guilty of an offence against this Act, and shall be 
 punishable by fine and imprisonment, or either of such punish- 
 ments, at the discretion of the Court before which the offender is 
 convicted ; and imprisonment, if awarded, may be either with or 
 without hard labour. 
 
 7. If the master or owner of any ship, without the license of Her Penalty 
 Majesty, knowingly either takes on board, or engages to take on board, ?j" ^" >g 
 or has on board such ship within Her Majesty's dominions any of the en ]^te<l 
 following persons, in this Act referred to as illegally enlisted persons ; persons 
 that is to say, on hoard 
 
 ship.
 
 664 APPENDIX. 
 
 (1.) Any person who, being a British subject within or without 
 the dominions of Her Majesty, has, without the license of 
 Her Majesty, accepted or agreed to accept any commission 
 or engagement in the military or naval service of any 
 foreign State at war with any friendly State : 
 
 (2.) Any person, being a British subject, who, without the license 
 of Her Majesty, is about to quit Her Majesty's dominions 
 with intent to accept any commission or engagement in 
 the military or naval service of any foreign State at war 
 with a friendly State : 
 
 (3.) Any person who has been induced to embark under a mis- 
 representation or false representation of the service in 
 which such person is to be engaged, with the intent or in 
 order that such person may accept or agree to accept any 
 commission or engagement in the military or naval service 
 of any foreign State at war with a friendly State : 
 Such master or owner shall be guilty of an offence against this Act, 
 and the following consequences shall ensue ; that is to say, 
 
 (1.) The offender shall be punishable by fine and imprisonment, 
 or either of such punishments, at the discretion of the 
 Court before which the offender is convicted ; and impri- 
 sonment, if awarded, may be either with or without hard 
 labour : and 
 
 (2.) Such ship shall be detained until the trial and conviction or 
 acquittal of the master or owner, and until all penalties 
 inflicted on the master or owner have been paid, or the 
 master or owner has given security for the payment of 
 such penalties to the satisfaction of two justices of the 
 peace, or other magistrate or magistrates having the 
 authority of two justices of the peace : and 
 
 (3.) All illegally enlisted persons shall immediately on the dis- 
 covery of the offence be taken on shore, and shall not be 
 allowed to return to the ship. 
 
 Illegal Shipbuilding and Illegal Expeditions. 
 
 Penalty on 3. If any person within Her Majesty's dominions, without the 
 
 illegalship- jj cen8e o f jj er Majesty, does any of the following acts ; that is to say, 
 
 and illegal (!) Builds or agrees to build, or causes to be built any ship with 
 
 expedi- intent or knowledge, or having reasonable cause to believe 
 
 tions. that the same shall or will be employed in the military or 
 
 naval service of any foreign State at war with any friendly 
 
 State : or 
 
 (2.) Issues or delivers any commission for any ship with intent 
 or knowledge, or having reasonable cause to believe that 
 the same shall or will be employed in the military or 
 naval service of any foreign State at war with any friendly 
 State : or 
 
 (3.) Equips any ship with intent or knowledge, or having reason- 
 able cause to believe that the same shall or will be em- 
 ployed in the military or naval service of any foreign 
 State at war with any friendly State : or
 
 FOREIGN ENLISTMENT. 665 
 
 (4.) Despatches, or causes or allows to be despatched, any ship 
 with intent or knowledge, or having reasonable cause to 
 helieve 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, and the following consequences shall ensue : 
 
 (1.) The offender shall be punishable by fine and imprisonment, 
 or either of such punishments, at the discretion of the 
 Court before which the offender is convicted ; and impri- 
 sonment, if awarded, may be either with or without hard 
 labour : 
 (2.) The ship in respect of which any such offence is committed, 
 
 and her equipment, shall be forfeited to Her Majesty : 
 Provided that a person building, causing to be built, or equipping a 
 ship in any of the cases aforesaid, in pursuance of a contract made 
 before the commencement of such war as aforesaid, shall not be liable 
 to any of the penalties imposed by this section in respect of such 
 building or equipping if he satisfies the conditions following ; (that is 
 to say,) 
 
 (1.) If forthwith upon a proclamation of neutrality being issued by 
 Her Majesty he gives notice to the Secretary of State that 
 he is so building, causing to be built, or equipping such 
 ship, and furnishes such particulars of the contract and of 
 any matters relating to, or done, or to be done under the 
 contract as may be required by the Secretary of State : 
 (2.) If he gives such security, and takes and permits to be taken 
 such other measures, if any, as the Secretary of State may 
 prescribe for ensuring that such ship shall not be de- 
 spatched, delivered, or removed without the license of Her 
 Majesty until the termination of such war as aforesaid. 
 
 9. Where any ship is built by order of or on behalf of any foreign Presump- 
 State when at war with a friendly State, or is delivered to or to the tion as to 
 order of such foreign State, or any person who to the knowledge of ?' ace ,. 
 the person building is an agent of such foreign State, or is paid for by iii ega i ship, 
 such foreign State or such agent, and is employed in the military or 
 
 naval service of such foreign State, such ship shall, until the contrary 
 is proved, be deemed to have been built with a view to being so em- 
 ployed, and the burden shall lie on the builder of such ship of proving 
 that he did not know that the ship was intended to be so employed in 
 the military or naval service of such foreign State. 
 
 10. If any person within the dominions of Her Majesty, and without Penalty on 
 the license of Her Majesty, aidin S tho 
 
 By adding to the number of the guns, or by changing those on board w ^ ; ' . 
 for other guns, or by the addition of any equipment for war, increases O f foreign 
 or augments, or procures to be increased or augmented, or is knowingly ships, 
 concerned in increasing or augmenting the warlike force of any ship 
 which at the time of her being within the dominions of Her Majesty 
 was a ship in the military or naval service of any foreign State at war 
 with any friendly State, 
 
 Such person shall be guilty of an offence against this Act, and
 
 666 APPENDIX. 
 
 shall be punishable by fine and imprisonment, or either of such 
 punishments, at the discretion of the Court before which the 
 offender is convicted ; and imprisonment, if awarded, may be 
 either with or without hard labour. 
 
 Penalty on 11. If any person within the limits of Her Majesty's dominions, and 
 fitting out w i tn out the license of Her Majesty, 
 
 military Prepares or fits out any naval or military expedition to proceed 
 
 expeditions against the dominions of any friendly State, the following consequences 
 without shall ensue : 
 
 license. (1.) Every person engaged in such preparation or fitting out, or 
 
 assisting therein, or employed in any capacity in such 
 expedition, shall be guilty of an offence against this Act, 
 and shall be punishable by fine and imprisonment, or 
 either of such punishments, at the discretion of the Court 
 before which the offender is convicted ; and imprisonment, 
 if awarded, may be either with or without hard labour. 
 (2.) All ships, and their equipments, and all arms and munitions 
 of war, used in or forming part of such expedition, shall be 
 forfeited to Her Majesty. 
 
 Punish- 12. Any person who aids, abets, counsels, or procures the commission 
 
 ment of O f ail y offence against this Act, shall be liable to be tried and punished 
 accessories. ag & principal O ff en der. 
 
 Limitation 13. The term of imprisonment to be awarded in respect of any 
 of term of offence against this Act shall not exceed two years. 
 imprison- 
 ment. Illegal Prize. 
 
 Illegal prize 14. If, during the continuance of any war in which Her Majesty 
 
 brought may be neutral, any ship, goods, or merchandise captured as prize 
 
 into British o f war w ithin the territorial jurisdiction of Her Majesty, in violation 
 
 *' t . j ie ~ of the neutrality of this realm, or captured by any ship which may 
 
 have been built, equipped, commissioned, or despatched, or the force of 
 
 Avhich may have been augmented, contrary to the provisions of this 
 
 Act, are brought within the limits of Her Majesty's dominions by the 
 
 captor, or any agent of the captor, or by any person having come into 
 
 possession thereof with knowledge that the same was prize of war so 
 
 captured as aforesaid, it shall be lawful for the original owner of such 
 
 prize, or his agent, or for any person authorized in that behalf by the 
 
 Government of the foreign State to which such owner belongs, to make 
 
 application to the Court of Admiralty for seizure and detention of such 
 
 prize, and the Court shall, on due proof of the facts, order such prize 
 
 to be restored. 
 
 Every such order shall be executed and carried into effect in the 
 same manner, and subject to the same right of appeal, as in case of any 
 order made in the exercise of the ordinary jurisdiction of such Court ; 
 and in the meantime and until a final order has been made on such 
 application the Court shall have power to make all such provisional 
 and other orders as to the care or custody of such captured ship, goods, 
 or merchandise, and (if the same be of perishable nature, or incurring 
 risk of deterioration) for the sale thereof, and with respect to the 
 deposit or investment of the proceeds of any such sale, as may be made 
 by such Court in the exercise of its ordinary jurisdiction.
 
 FOREIGN ENLISTMENT. 667 
 
 General Provision. 
 
 15. For the purposes of this Act, a license by Her Majesty shall le License by 
 under the sign manual of Her Majesty, or be signified by Order in ^ ^^ 
 Council or by proclamation of Her Majesty. granted. 
 
 Legal Procedure. 
 
 16. Any offence against this Act shall, for all purposes of and Jurisdic- 
 incidental to the trial and punishment of any person guilty of any such tlon m 
 offence, be deemed to have been committed either in the place in which o^^esV 
 the offence was wholly or partly committed, or in any place within persons 
 Her Majesty's dominions in which the person who committed such against 
 offence may be. ^ ct - 
 
 1 7. Any offence against this Act may be described in any indict- Venue in 
 
 ment or other document relating to such offence, in cases where the re ^P ect * 
 
 . i i i otiences by 
 
 mode or trial requires such a description, as having been committed at p ersons . 
 
 the place where it was wholly or partly committed, or it may be 24 & 25 
 averred generally to have been committed within Her Majesty's do- Viet. c. 97. 
 minions, and the venue or local description in the margin may be that 
 of the county, city, or place in which the trial is held. 
 
 18. The following authorities, that is to say, in the United Kingdom Power to 
 any judge of a Superior Court, in any other place within the jurisdic- ie j no | e 
 tion of any British court of justice, such Court, or, if there are more f oi e tr i a i. 
 courts than one, the Court having the highest criminal jurisdiction in 
 
 that place, may, by warrant or instrument in the nature of a warrant 
 in this section included in the term " warrant," direct that any 
 offender charged with an offence against this Act shall be removed to 
 some other place in Her Majesty's dominions for trial in cases 
 where it appears to the authority granting the warrant that the 
 removal of such offender would be conducive to the interests of justice, 
 and any prisoner so removed shall be triable at the place to which he is 
 removed, in the same manner as if his offence had been committed at 
 such place. 
 
 Any warrant for the purposes of this section may be addressed to 
 the master of any ship or to any other person or persons, and the 
 person or persons to whom such warrant is addressed shall have 
 power to convey the prisoner therein named to any place or places 
 named in such warrant, and to deliver him, when arrived at such 
 place or places, into the custody of any authority designated by such 
 warrant. 
 
 Every prisoner shall, during the time of his removal under any 
 such warrant as aforesaid, be deemed to be in the legal custody of the 
 person or persons empowered to remove him. 
 
 19. All proceedings for the condemnation and forfeiture of a ship, Jurisdic- 
 or ship and equipment, or arms and munitions of war, in pursuance of tj 1 
 this Act shall require the sanction of the Secretary of State or such forfeiture 
 chief executive authority as is in this Act mentioned, and shall be had O f s hip s 
 in the Court of Admiralty, and not in any other Court ; and the Court for offences 
 of Admiralty shall, in addition to any power given to the Court a S a i nst 
 by this Act, have in respect of any ship or other matter brought 
 before it in pursuance of this Act all powers which it has in the
 
 668 
 
 APPENDIX. 
 
 Regula- 
 tions as to 
 proceedings 
 against the 
 offender 
 and against 
 the ship. 
 
 Officers 
 authorized 
 to seize 
 offending 
 ehips. 
 
 Powers of 
 officers 
 authorized 
 to seize 
 ehips. 
 
 Special 
 
 case of a ship or matter brought before it in the exercise of its ordinary 
 jurisdiction. 
 
 20. Where any offence against this Act has been committed by any 
 person by reason whereof a ship, or ship and equipment, or arms and 
 munitions of war, has or have become liable to forfeiture, proceedings 
 may be instituted contemporaneously or not, as may be thought fit, 
 against the offender in any Court having jurisdiction of the offence, and 
 against the ship, or ship and equipment, or arms and munitions of 
 war, for the forfeiture in the Court of Admiralty ; but it shall not be 
 necessary to take proceedings against the offender because proceedings 
 are instituted for the forfeiture, or to take proceedings for the forfeiture 
 because proceedings are taken against the offender. 
 
 2 1 . The following officers, that is to say, 
 
 (1.) Any officer of Customs in the United Kingdom, subject 
 nevertheless to any special or general instructions from the 
 Commissioners of Customs or any officer of the Board of 
 Trade, subject nevertheless to any special or general in- 
 structions from the Board of Trade : 
 
 (2.) Any officer of Customs or public officer in any British 
 possession, subject nevertheless to any special or general 
 instructions from the governor of such possession : 
 (3.) Any commissioned officer on full pay in the military service 
 of the Crown, subject nevertheless to any special or general 
 instructions from his commanding officer : 
 
 (4.) Any commissioned officer on full pay in the naval service of 
 the Crown, subject nevertheless to any special or general 
 instructions from the Admiralty or his superior officer, 
 may seize or detain any ship liable to be seized or detained in pursu- 
 ance of this Act, and such officers are in this Act referred to as the 
 " local authority ; " but nothing in this Act contained shall derogate 
 from the power of the Court of Admiralty to direct any ship to 
 be seized or detained by any officer by whom such Court may have 
 power under its ordinary jurisdiction to direct a ship to be seized or 
 detained. 
 
 22. Any officer authorized to seize or detain any ship in respect of 
 any offence against this Act may, for 'the purpose of enforcing such 
 seizure or detention, call to his aid any constable or officers of police, 
 or any officers of Her Majesty's army or navy or marines, or any excise 
 officers or officers of Customs, or any harbour-master or dock-master, or 
 any officers having aiithority by law to make seizures of ships, and may 
 put on board any ship so seized or detained any one or more of such 
 officers to take charge of the same, and to enforce the provisions of this 
 Act, and any officer seizing or detaining any ship under this Act may 
 use force, if necessary, for the purpose of enforcing seizure or detention, 
 and if any person is killed or mainied by reason of his resisting such 
 officer in the execution of his duties, or any person acting under his 
 orders, such officer so seizing or detaining the ship, or other person, 
 shall be freely and fully indemnified as well against the Queen's 
 Majesty, her heirs and successors, as against all persons so killed, 
 maimed, or hurt. 
 
 23. If the Secretary of State or the chief executive authority is
 
 FOREIGN ENLISTMENT. 669 
 
 satisfied that there is a reasonable and probable cause for believing power of 
 that a ship within Her Majesty's dominions has been or is being built, Secretary 
 commissioned, or equipped contrary to this Act, and is about to be ^ief 
 taken beyond the limits of such dominions, or that a ship is about to executive 
 be despatched contrary to this Act, such Secretary of State or chief authority 
 executive authority shall have power to issue a warrant stating that to detain 
 there is reasonable and probable cause for believing as aforesaid, and s lp ' 
 upon such wan-ant the local authority shall have power to seize and 
 search such ship, and to detain the same until it has been either 
 condemned or released by process of law, or in manner herein-after 
 mentioned. 
 
 The owner of the ship so detained, or his agent, may apply to the 
 Court of Admiralty for its release, and the Court shall as soon as pos- 
 sible put the matter of such seizure and detention in course of trial 
 between the applicant and the Crown. 
 
 If the applicant establish to the satisfaction of the Court that the 
 ship was not and is not being built, commissioned, or equipped, or 
 intended to be despatched contrary to this Act, the ship shall be 
 released and restored. 
 
 If the applicant fail to establish to the satisfaction of the Court that 
 the ship was not and is not being built, commissioned, or equipped, or 
 intended to be despatched' contrary to this Act, then the ship shall be 
 detained till released by order of the Secretary of State or chief execu- 
 tive authority. 
 
 The Court may in cases where no proceedings are pending for its 
 condemnation, release any ship detained under this section on the 
 owner giving security to the satisfaction of the Court that the ship 
 shall not be employed contrary to this Act, notwithstanding that the 
 applicant may have failed to establish to the satisfaction of the Court 
 that the ship was not and is not being built, commissioned, or intended 
 to be despatched contrary to this Act. The Secretary of State or the 
 chief executive authority may likewise release any ship detained under 
 this section on the owner giving security to the satisfaction of such 
 Secretary of State or chief executive authority that the ship shall not 
 be employed contrary to this Act, or may release the ship without 
 such security if the Secretary of State or chief executive authority 
 think fit so to release the same. 
 
 If the Court be of opinion that there was not reasonable and pro- 
 bable cause for the detention, and if no such cause appear in the course 
 of the proceedings, the Court shall have power to declare that the 
 owner is to be indemnified by the payment of costs and damages in 
 respect of the detention, the amount thereof to be assessed by the 
 Court, and any amount so assessed shall be payable by the Commis- 
 sioners of the Treasury out of any moneys legally applicable for that 
 purpose. The Court of Admiralty shall also have power to make a 
 like order for the indemnity of the owner, on the application of such 
 owner to the Court, in a summary way, in cases where the ship is re- 
 leased by the order of the Secretary of State or the chief executive 
 authority, before any application is made by the owner or his agent to 
 the Court for such release. 
 
 Nothing in this section contained shall affect any proceedings insti-
 
 670 
 
 APPENDIX. 
 
 Special 
 power of 
 local au- 
 thority to 
 detain ship. 
 
 Power of 
 Secretary 
 of State or 
 executive 
 authority 
 to grant 
 search 
 warrant. 
 Exercise of 
 
 tuted or to be instituted for the condemnation of any ship detained 
 under this section where such ship is liable to forfeiture, subject to 
 this provision, that if such ship is restored in pursuance of this sec- 
 tion, all proceedings for such condemnation shall be stayed ; and where 
 the Court declares that the owner is to be indemnified by the payment 
 of costs and damages for the detainer, all costs, charges, and expenses 
 incurred by such owner in or about any proceedings for the condemna- 
 tion of such ship shall be added to the costs and damages payable to 
 him in respect of the detention of the ship. 
 
 Nothing in this section contained shall apply to any foreign 
 non-commissioned ship despatched from any part of Her Majesty's 
 dominions after having come within them under stress of weather 
 or in the course of a peaceful voyage, and upon which ship no fitting 
 out or equipping of a warlike character has taken place in this 
 country. 
 
 24. Where it is represented to any local authority, as defined by 
 this Act, and such local authority believes the representation, that there 
 is a reasonable and probable cause for believing that a ship within Her 
 Majesty's dominions has been or is being built, commissioned, or 
 equipped contrary to this Act, and is about to be taken beyond the 
 limits of such dominions, or that a ship is about to be despatched con- 
 trary to this Act, it shall be the duty of such local authority to detain 
 such ship, and forthwith to communicate the fact of such detention to 
 the Secretary of State or chief executive authority. 
 
 Upon the receipt of such communication, the Secretary of State or 
 chief executive authority may order the ship to be released if he thinks 
 there is no cause for detaining her, but if satisfied that there is reason- 
 able and probable cause for believing that such ship was built, commis- 
 sioned, or equipped or intended to be despatched in contravention of 
 this Act, he shall issue his warrant stating that there is reasonable and 
 probable cause for believing as aforesaid, and upon such warrant being 
 issued further proceedings shall be had as in cases where the seizure or 
 detention has taken place on a warrant issued by the Secretary of State 
 without any communication from the local authority. 
 
 Where the Secretary of State or chief executive authority orders the 
 ship to be released on the receipt of a communication from the local 
 authority without issuing his warrant, the owner of the ship shall be 
 indemnified by the payment of costs and damages in respect of the 
 detention upon application to the Court of Admiralty in a summary 
 way in like manner as he is entitled to be indemnified where the Secre- 
 tary of State having issued his warrant under this Act releases the ship 
 before any application is made by the owner or his agent to the Court 
 for such release. 
 
 25. The Secretary of State or the chief executive authority may, by 
 warrant, empower any person to enter any dockyard or other place 
 within Her Majesty's dominions and inquire as to the destination of any 
 ship which may appear to him to be intended to be employed in the 
 naval or military service of any foreign State at war with a friendly 
 State, and to search such ship. 
 
 26. Any powers or jurisdiction by this Act given to the Secretary 
 of State may be exercised by him throughout the dominions of Her
 
 FOREIGN ENLISTMENT. G71 
 
 Majesty, and such powers and jurisdiction may also be exercised powers of 
 by any of the following officers, in this Act referred to as the chief Secretary 
 executive authority, within their respective jurisdictions; that is to r c ^ e f 
 say, executive 
 
 (1.) In Ireland by the Lord Lieutenant or other the chief authority, 
 governor or governors of Ireland for the time being, or 
 the chief secretary to the Lord Lieutenant : 
 (2.) In Jersey by the Lieutenant Governor : 
 (3.) In Guernsey, Alderney, and Sark, and the dependent islands 
 
 by the Lieutenant Governor : 
 
 (4.) In the Isle of Man by the Lieutenant Governor : 
 (5.) In any British possession by the Governor. 
 A copy of any warrant issued by a Secretary of State or by any 
 officer authorized in pursuance of this Act to issue such warrant in 
 Ireland, the Channel Islands, or the Isle of Man shall be laid before 
 Parliament. 
 
 27. An appeal may be had from any decision of a Court of Admi- Appeal 
 ralty under this Act to the same tribunal and in the same manner to f, ur 
 and in which an appeal may be had in cases within the ordinary juris- m i ra ity. 
 diction of the Court as a Court of Admiralty. 
 
 28. Subject to the provisions of this Act providing for the award Indemnity 
 of damages in certain cases in respect of the seizure or detention of a to omcers - 
 ship by the Court of Admiralty no damages shall be payable, and no 
 
 officer or local authority shall be responsible, either civilly or crimi- 
 nally, in respect of the seizure or detention of any ship in pursuance of 
 this Act. 
 
 29. The Secretary of State shall not, nor shall the chief executive Indemnity 
 authority, be responsible in any action or other legal proceedings * g^ '" 
 whatsoever for any warrant issued by him in pursuance of this Act, or or ^^f 
 be examinable as a witness, except at his own request, in any court executive 
 of justice in respect of the circumstances which led to the issue of the authority, 
 warrant. 
 
 Interpretation Clause. 
 
 30. In this Act, if not inconsistent with the context, the following Interpre- 
 terms have the meanings herein-after respectively assigned to them ; tation of 
 that is to say, terms - 
 
 " Foreign State" includes any foreign prince, colony, province, or "Foreign 
 part of any province or people, or any person or persons state : " 
 exercising or assuming to exercise the powers of government 
 in or over any foreign country, colony, province, or part of 
 any province or people : 
 
 "Military service" shall include military telegraphy and any "Military 
 other employment whatever, in or in connexion with any service : " 
 military operation : 
 
 " Naval service " shall, as respects a person, include service as a "Naval 
 marine, employment as a pilot in piloting or directing the service : " 
 course of a ship of war or other ship when such ship of war 
 or other ship is being used in any military or naval opera- 
 tion, and any employment whatever on board a ship of war, 
 transport, store ship, privateer or ship under letters of
 
 672 
 
 APPENDIX. 
 
 " United 
 Kingdom:' 
 
 "British 
 
 "The Se- 
 cretary of 
 State : " 
 "Go- 
 
 " Court of 
 Admiral- 
 ty:" 
 
 "Ship: " 
 
 " Build- 
 ing:" 
 
 "Equip- 
 ping : " 
 
 "Ship and 
 equip- 
 ment : " 
 
 Repeal of 
 Foreign 
 Enlistment 
 Act. 
 
 59 G. 3, 
 
 c. 69. 
 
 marque ; and as respects a ship, include any user of a snip 
 as a transport, store ship, privateer or ship under letters of 
 marque : 
 
 " United Kingdom " includes the Isle of Man, the Channel 
 Islands, and other adjacent islands : 
 
 " British possession " means any territory, colony, or place being 
 part of Her Majesty's dominions, and not part of the United 
 Kingdom, as defined by this Act : 
 
 " The Secretary of State " shall mean any one of Her Majesty's 
 Principal Secretaries of State : 
 
 " The Governor " shall as respects India mean the Governor- 
 General or the governor of any presidency, and where a 
 British possession consists of several constituent colonies, 
 mean the Governor-General of the whole possession, or the 
 governor of any of the constituent colonies, and as respects 
 any other British possession it shall mean the officer for the 
 time being administering the government of such possession ; 
 also any person acting for or in the capacity of a governor, 
 shall be included under the term " Governor " : 
 
 "Court of Admiralty" shall mean the High Court of Admiralty 
 of England or Ireland, the Court of Session of Scotland, 
 or any Vice- Admiralty Court within Her Majesty's do- 
 dominions : 
 
 " Ship " shall include any description of boat, vessel, floating 
 battery, or floating craft ; also any description of boat, 
 vessel, or other craft or battery, made to move either on 
 the surface of or under water, or sometimes on the surface 
 of and sometimes under water : 
 
 " Building" in relation to a ship shall include the doing any act 
 towards or incidental to the construction of a ship, and all 
 words having relation to building shall be construed ac- 
 cordingly : 
 
 " Equipping" in relation to a ship shall include the furnishing a 
 ship with any tackle, apparel, furniture, provisions, arms, 
 munitions, or stores, or any other thing which is used in 
 or about a ship for the purpose of fitting or adapting her 
 for the sea or for naval service, and all words relating to 
 equipping shall be construed accordingly. 
 
 " Ship and equipment " shall include a ship and everything in or 
 belonging to a ship : 
 
 " Master " shall include any person having the charge or command 
 of a ship. 
 
 Repeal of Acts and Saving Clauses. 
 
 31. From and after the commencement of this Act, an Act passed 
 in the fifty-ninth year of the reign of His late Majesty King George 
 the Third, chapter sixty-nine, intituled "An Act to prevent the 
 enlisting or engagement of His Majesty's subjects to serve in foreign 
 service, and the fitting out or equipping, in His Majesty's dominions, 
 vessels for warlike purposes, without His Majesty's Hcense," shall be 
 repealed : Provided that such repeal shall not affect any penalty, for-
 
 FOREIGN ENLISTMENT. 673 
 
 feiture, or other punishment incurred or to be incurred in respect of Saving as 
 
 any offence committed before this Act comes into operation, nor the t" 00 111 "!- 
 
 institution of any investigation or legal proceeding, or any other fo^gn 
 
 remedy for enforcing any such penalty, forfeiture, or punishment as ships, 
 aforesaid. 
 
 32. Nothing in this Act contained shall subject to forfeiture any Penalties 
 commissioned ship of any foreign State, or give to any British Court nofc * 
 over or in respect of any ship entitled to recognition as a commissioned pg^ns en- 
 ship of any foreign State any jurisdiction which it would not have had taring into 
 if this Act had not passed. military 
 
 33. Nothing in this Act contained shall extend or be construed to service in 
 extend to subject to any penalty any person who enters into the 
 military service of any prince, State, or potentate in Asia, with such ^ d - 3> 
 leave or license as is for the time being required by law in the case of 
 subjects of Her Majesty entering into the military service of princes, 
 
 States, or potentates in Asia. 
 
 IT. AMERICAN ACT. 
 
 An Act in addition to the " Act for the Punishment of certain Crimes 
 against the United States," and to repeal the Acts therein mentioned 
 (1818) (i). 
 
 BE it enacted by the Senate and House of Representatives of the 
 United States of America, in Congress assembled, That if any citizen 
 of the United States .shall, within the territory or jurisdiction thereof, 
 accept and exercise a commission to serve a foreign prince, State, 
 colony, district, or people, in war, by land or by sea, against any 
 prince, State, colony, district, or people, with whom the United States 
 are at peace, the person so offending shall be deemed guilty of a high 
 misdemeanour, and shall be fined not more than two thousand dollars, 
 and shall be imprisoned not exceeding three years. 
 
 Sect. 2. And be it further enacted, That if any person shall, within 
 the territory or jurisdiction of the United States, enlist or enter him- 
 self, or hire or retain another person to enlist or enter himself, or to go 
 beyond the limits or jurisdiction of the United States with intent to 
 be enlisted or entered in the service of any foreign prince, State, 
 colony, district, or people, as a soldier, or as a marine or seaman, on 
 board of any vessel of war, letter of marque, or privateer, every per- 
 son so offending shall be deemed guilty of a high misdemeanour, and 
 shall be fined not exceeding one shousand dollars, and be imprisoned 
 not exceeding three years : Provided, that this Act shall not be con- 
 strued to extend to any subject or citizen of any foreign prince, State, 
 colony, district, or people, who shall transiently be within the United 
 States, and shall on board of any vessel of war, letter of marque, 
 
 (i) [This Act is given as it was originally passed in order to retain the 
 numbering of the sections referred to in the text. It will be found in the 
 U.S. Uu vised Statutes under the title of Neutrality.] 
 
 X X
 
 G74 APPENDIX. 
 
 or privateer, which at the time of its arrival within the United States, 
 was fitted and equipped as such, enter and enlist himself, or hire or 
 retain another subject or citizen of the same foreign prince, State, 
 colony, district, or people, who is transiently within the United States, 
 to enlist or enter himself to serve such foreign prince, State, colony, 
 district, or people, on board such vessel of war, letter of marque, or 
 privateer, if the United States shall then be at peace with such foreign 
 prince, State, colony, district, or people. 
 
 Sect. 3. And be it further enacted, That if any person shall, within 
 the limits of the United States, fit out and arm, or attempt to fit out 
 and arm, or procure to be fitted out and armed, or shall knowingly be 
 concerned in the furnishing, fitting out, or arming, of any ship or vessel 
 with intent that such ship on vessel shall be employed in the service of 
 any foreign prince or State, or of any colony, district, or people, to 
 cruise or commit hostilities against the subjects, citizens, or property of 
 any foreign prince or State, or of any colony, district, or people with 
 whom the United States are at peace, or shall issue or deliver a com- 
 mission within the territory or jurisdiction of the United States, for 
 any ship or vessel, to the intent that she may be employed as afore- 
 said, every person so offending shall be guilty of a high misdemeanour, 
 and shall be fined not more than ten thousand dollars, and imprisoned 
 not more than three years ; and every such ship or vessel, with her 
 tackle, apparel, and furniture, together with all materials, arms, ammu- 
 nition, and stores, which may have been procured for the building and 
 equipment thereof, shall be forfeited ; one-half to the use of the in- 
 former, and the other half to the use of the United States. 
 
 Sect. 4. And be it further enacted, That if any citizen or citizens 
 of the United States shall, without the limits thereof, fit out and arm, 
 or attempt to fit out and arm, or procure to be fitted out and armed, 
 or shall knowingly aid or be concerned in the furnishing, fitting out, 
 or arming, any private ship or vessel of war, or privateer, with intent 
 that such ship or vessel shall be employed to cruise, or commit hos- 
 tilities, upon the citizens of the United States, or their property, or 
 shall take the command of, or enter on board of any such ship or 
 vessel, for the intent aforesaid, or shall purchase any interest in any 
 such ship or vessel, with a view to share in the profits thereof, such 
 persons so offending shall be deemed guilty of a high misdemeanour, 
 and fined not more than ten thousand dollars, and imprisoned not 
 more than ten years ; and the trial for such offence, if committed 
 within the limits of the United States, shall be in the district in which 
 the offender shall be apprehended or first brought. 
 
 Sect. 5. And be it further enacted, That if any persons shall, within 
 the territory or jurisdiction of the United States, increase or augment, 
 or procure to be increased or augmented, or shall knowingly be con- 
 cerned in increasing or augmenting the force of any ship of war, 
 cruiser, or other armed vessel, which, at the time of her arrival within 
 the United States, Avas a ship of war, or cruiser, or armed vessel, in 
 the service of any foreign prince or State, or of any colony, district, or 
 people, or belonging to the subjects or citizens of any such prince or 
 State, colony, district, or people, the same being at war with any 
 foreign prince or State, or of any colony, district, or people with whom
 
 FOREIGN ENLISTMENT. 675 
 
 the United States are at peace, by adding to the number of the guns 
 of such vessel, or by changing those on board of her for guns of a 
 larger calibre, or by the addition thereto of any equipment solely 
 applicable to war, every person so offending shall be deemed guilty of 
 a high misdemeanour, shall be fined not more than one thousand 
 dollars, and be imprisoned not more than one year. 
 
 Sect 6. And be it further enacted, That if any person shall, within 
 the territoiy or jurisdiction of the United States, begin or set on foot, or 
 provide or prepare the means for any military expedition or enterprise, 
 to be carried on from thence against the territory or dominions of any 
 foreign prince or State, or of any colony, district, or people, with 
 whom the United States are at peace, every person so offending shall 
 be deemed guilty of a high misdemeanour, and shall be fined not ex- 
 ceeding three thousand dollars, and be imprisoned not more than one 
 year. 
 
 Sect. 7. And be it further enacted, That the District Courts shall 
 take cognizance of complaints, by whomsoever instituted, in cases of 
 captures made within the waters of the United States, or within a 
 marine league of the coasts or shores thereof. 
 
 Sect. 8. And be it further enacted, That in every case in which a 
 vessel shall be fitted out and armed, or attempted to be fitted out and 
 armed, or in which the force of any vessel of war, cruiser, or other 
 armed vessel, shall be increased or augmented, or in which any military 
 expedition or enterprise shall be begun or set on foot, contrary to the 
 provisions and prohibitions of this Act ; and in every case of the 
 capture of a ship or vessel within the jurisdiction or protection of the 
 United States as before defined, and in every case in which any process 
 issuing out of any Court of the United States shall be disobeyed or re- 
 sisted by any person or persons having the custody of any vessel of 
 war, cruiser, or other armed vessel of any foreign prince or State, or of 
 any colony, district, or people, or of any subjects or citizens of any 
 foreign prince or State, or of any colony, district, or people, in every 
 case it shall be lawful for the President of the United States, or such 
 other person as he shall have empowered for that purpose, to employ 
 such part of the land or naval forces of the United States, or of the 
 militia thereof, for the purpose of taking possession of and detaining 
 any such ship or vessel, with her prize or prizes, if any, in order to the 
 execution of the prohibitions and penalties of this Act, and to the 
 restoring the prize or prizes in the cases in which restoration shall have 
 been adjudged, and also for the purpose of preventing the carrying on 
 any such expedition or enterprise from the territories or j urisdiction of 
 the United States against the territories or dominions of any foreign 
 prince or State, or of any colony, district, or people, with whom the 
 United States are at peace. 
 
 Sect. 9. And be it further enacted, That it shall be lawful for the 
 President of the United States, or such person as he shall empower for 
 that purpose, to employ such part of the land or naval forces of the 
 United States, or of the militia thereof, as shall be necessary to compel 
 any foreign ship or vessel to depart the United States in all cases in 
 which by the law of nations or the Treaties of the United States, they 
 ought not to remain within the United States. 
 
 X X 2
 
 676 APPENDIX. 
 
 Sect. 10. And be it further enacted, That the owners or consignees 
 of every armed ship or vessel sailing out of the ports of the United 
 States, belonging wholly or in part to citizens thereof, shall enter into 
 bond to the United States, with sufficient sureties, prior to clearing out 
 the same, in double the amount of the value of the vessel and cargo on 
 board, including her armament, that the said ship or vessel shall not 
 be employed by such owners 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. 
 
 Sect. 11. And be it further enacted, That the collectors of the 
 Customs be, and they are, hereby respectively authorized and required 
 to detain any vessel manifestly built for warlike purposes, and about 
 to depart the United States, of which the cargo shall principally con- 
 sist of arms and munitions of war, when the number of men shipped 
 on board, or other circumstances, shall render it probable that such 
 vessel is intended to be employed by the owner or owners to cruise or 
 commit hostilities upon the subjects, citizens, or property of any foreign 
 State, or of any Colony, district, or people, with whom the United 
 States are at peace, until the decision of the President be had thereon, 
 or until the owner or owners shall give such bond and security as is 
 required of the owners of armed ships by the preceding section of 
 this Act. 
 
 Sect. '12. And be it further enacted, That the Act passed on the 
 fifth day of June One thousand seven hundred and ninety-four, entitled, 
 " An Act in addition to the Act for the punishment of certain crimes 
 against the United States," continued in force, for a limited time, by 
 the Act of the second of March One thousand seven hundred and 
 ninety-seven, and perpetuated by the Act passed on the twenty-fourth 
 of April One thousand eight hundred, and the Act passed on the four- 
 teenth day of June One thousand seven hundred and ninety-seven, 
 entitled, " An Act to prevent citizens of the United States from priva- 
 teering against nations in amity with, or against the citizens of, the 
 United States," and the Act passed the third day of March One thou- 
 sand eight hundred and seventeen, entitled, " An Act more effectually 
 to preserve the neutral relations of the United States," be, and the 
 same are hereby severally repealed : Provided nevertheless, that persons 
 having heretofore offended against any of the Acts aforesaid may be 
 prosecuted, convicted, and punished as if the same were not repealed ; 
 and no forfeiture heretofore incurred by a violation of any of the Acts 
 aforesaid shall be affected by such repeal. 
 
 Sect. 13. And be it further enacted, That nothing in the foregoing 
 Act shall be construed to prevent the prosecution or punishment of 
 treason, or any piracy denned by the laws of the United States,
 
 NAVAL PRIZE. 677 
 
 APPENDIX D. 
 
 ENGLISH NAVAL PRIZE ACT. 
 
 27 & 28 VICT. CHAP. 26. 
 An Act for regulating Naval Prize of War. [23rd June, 1864.] 
 
 WHEREAS it is expedient to enact permanently, with amendments, 
 such provisions concerning Naval Prize, and matters connected there- 
 with, as have heretofore been usually passed at the beginning of a war : 
 
 Be it therefore enacted by the Queen's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and Temporal 
 and Commons, in this present Parliament assembled, and by the autho- 
 rity of the same, as follows : 
 
 Preliminary. 
 
 1. This Act may be cited as The Naval Prize Act, 1864. Short title. 
 
 2. In this Act Interpre- 
 The term " the Lords of the Admiralty " means the Lord High tati n of 
 
 Admiral of the United Kingdom, or the Commissioners for terms - 
 
 executing the, office of Lord High Admiral : 
 The term " the High Court of Admiralty " means the High Court 
 
 of Admiralty of England : 
 The term " any of Her Majesty's ships of war " includes any of 
 
 Her Majesty's vessels of war, and any hired armed ship or 
 
 vessel in Her Majesty's service : 
 The term " officers and crew " includes flag officers, commanders, 
 
 and other officers, engineers, seamen, marines, soldiers, and 
 
 others on board any of Her Majesty's ships of war : 
 The term " ship " includes vessel and boat, with the tackle, 
 
 furniture, and apparel of the ship, vessel, or boat : 
 The term " ship papers " includes all books, passes, sea briefs, 
 
 charter parties, bills of lading, cockets, letters, and other 
 
 documents and writings delivered up or found on board a 
 
 captured ship : 
 The term " goods " includes all such things as are by the course 
 
 of admiralty and law of nations the subject of adjudication 
 
 as prize (other than ships). 
 
 I. PRIZE COURTS. 
 
 3. The High Court of Admiralty, and every Court of Admiralty or High Court 
 of Vice-Admiralty, or other court exercising admiralty jurisdiction in of A Ci- 
 ller Majesty's dominions, for the time being authorized to take cogni- , y , am 
 zance of and judicially proceed in matters of prize, shall be a Prize t |_, e p r i ze 
 Court within the meaning of this Act. Courts for 
 
 Every such court, other than the High Court of Admiralty, is com- purposes 
 prised in the term " Vice-Admiralty Prize Court," when hereafter ust'd of Act " 
 in this Act. 
 
 High Court of Admiralty. 
 
 4. The High Court of Admiralty .shall have jurisdiction throughout Jurisdic- 
 Her Majesty's dominions as a Prize Court. tioii of
 
 678 
 
 APPENDIX. 
 
 High Court 
 of Admi- 
 ralty. 
 
 Appeal to 
 Queen in 
 Council, in 
 
 Jurisdic- 
 tion of 
 Judicial 
 Committee 
 in prize 
 appeals. 
 
 Custody of 
 processes, 
 papers, &c. 
 
 Limit of 
 time for 
 appeal. 
 
 Enforce- 
 ment of 
 orders of 
 High Court, 
 &c. 
 
 Salaries of 
 judges of 
 Vice-Admi- 
 ralty Prize 
 Courts. 
 
 Retiring 
 pensions of 
 
 The High Court of Admiralty as a prize court shall have power to 
 enforce any order or decree of a Vice- Admiralty Prize Court, and any 
 order or decree of the judicial committee of the privy council in a 
 prize appeal. 
 
 Appeal ; Judicial Committee. 
 
 5. An appeal shall lie to Her Majesty in Council from any order or 
 decree of a prize court, as of right in case of a final decree, and in 
 other cases with the leave of the Court making the order or decree. 
 
 Every appeal shall be made in such manner and form and subject 
 to such regulations (including regulations as to fees, costs, charges, and 
 expenses), as may for the time being be directed by order in council, 
 and in the absence of any such order, or so far as any such order does 
 not extend, then in such manner and form and subject to such regu- 
 lations as are for the time being prescribed or in force respecting 
 maritime causes of appeal. 
 
 6. The Judicial Committee of the Privy Council shall have juris- 
 diction to hear and report on any such appeal, and may therein exer- 
 cise all such powers as for the time being appertain to them in respect 
 of appeals from any Court of Admiralty Jurisdiction, and all such 
 powers as are under this Act vested in the High Court of Admiralty, and 
 all such powers as were wont to be exercised by the Commissioners of 
 Appeal in Prize Causes. 
 
 7. All processes and documents required for the purposes of any 
 such Appeal shall be transmitted to and shall remain in custody of the 
 Registrar of Her Majesty in Prize Appeals. 
 
 8. In every such appeal the usual inhibition shall be extracted from 
 the Registry of Her Majesty in Prize Appeals within three months 
 after the date of the order or decree appealed from if the Appeal be from 
 the High Coitrt of Admiralty, and within six months after that date if it 
 be from a Vice-Admiralty Prize Court. 
 
 The Judicial Committee may, nevertheless, on sufficient cause shown, 
 allow the inhibition to be extracted and the Appeal to be prosecuted 
 after the expiration of the respective periods aforesaid. 
 
 Vice- Admiralty Prize Courts. 
 
 9. Every Vice-Admiralty Prize Court shall enforce within its juris- 
 diction all orders and decrees of the Judicial Committee in Prize 
 Appeals and of the High Court of Admiralty in Prize Causes. 
 
 10. Her Majesty in Council may grant to the Judge of any Vice- 
 Admiralty Prize Court a salary not exceeding five hundred pounds a 
 year, payable out of money provided by Parliament, subject to such 
 regulations as seem meet. 
 
 A Judge to whom a salary is so granted shall not be entitled to any 
 further emolument, arising from fees or otherwise, in respect of prize 
 business transacted in his Court. 
 
 An account of all such fees shall be kept by the Registrar of the 
 Court, and the amount thereof shall be carried to and form part of the 
 Consolidated Fund of the United Kingdom. 
 
 11. In accordance, as far as circumstances admit, with the principles 
 and regulations laid down in the Superannuation Act, 1859, Her
 
 NAVAL PRIZE. 679 
 
 Majesty in Council may grant to the Judge of any Vice-Admiralty judges, as 
 
 Prize Court an annual or other allowance, to take effect on the termi- *?. 2 '^ * ^3 
 nation of his service, and to be payable out of money provided by lc ' c> 
 Parliament. 
 
 12. The Registrar of every Vice- Admiralty Prize Court shall, on Returns 
 the First day of January and First day of July in every year, make from \ ice- 
 out a return (in such form as the Lords of the Admiralty from time to p r ; ze r y 
 time direct) of all cases adjudged in the Court since the last half- Courts, 
 yearly return, and shall with all convenient speed send the same to 
 
 the Registrar of the High Court of Admiralty, who shall keep the 
 same in the Registry of that Court, and who shall, as soon as con- 
 veniently may be, send a copy of the returns of each half-year to the 
 Lords of the Admiralty, who shall lay the same before both Houses of 
 Parliament. 
 
 General. 
 
 13. The Judicial Committee of the Privy Council, with the Judge General 
 of the High Court of Admiralty, may from time to time frame General orders for 
 Orders for regulating (subject to the provisions of this Act) the pro- (^j^g 
 cedure and practice of Prize Courts, and the duties and conduct of the 
 
 officers thereof and of the practitioners therein, and for regulating the 
 fees to be taken by the officers of the Courts, and the costs, charges, and 
 expenses to be allowed to the practitioners therein. 
 
 Any such General Orders shall have full effect, if and when approved 
 by Her Majesty in Council, but not sooner or otherwise. 
 
 Every Order in Council made under this section shall be laid before 
 both Houses of Parliament. 
 
 Every such Order in Council shall be kept exhibited in a con- 
 spicuous place in each Court to which it relates. 
 
 1 4. It shall not be lawful for any registrar, marshal, or other officer Prohibition 
 of any Prize Court, or for the Registrar of Her Majesty in Prize of officer of 
 Appeals, directly or indirectly to act or be in any manner concerned as ^ r '. ze Court 
 advocate, proctor, solicitor, or agent, or otherwise, in any Prize Cause p roct o r & c 
 or Appeal, on pain of dismissal or suspension from office, by order of 
 
 the Court or of the Judicial Committee (as the case may require). 
 
 15. It shall not be lawful for any proctor or solicitor, or person Prohibition 
 practising as a proctor or solicitor, being employed by a party in a of proctors 
 Prize Cause or Appeal, to be employed or concerned, by himself or his being con- 
 partner, or by any other person, directly or indirectly, by or on behalf Adverse ^ 
 of any adverse party in that Cause or Appeal, on pain of exclusion or parties in 
 suspension from practice in prize matters, by order of the Court or of a cause, 
 the Judicial Committee (as the case may require). 
 
 II. PROCEDURE IN PRIZE CAUSES. 
 Proceediiigs by Captors. 
 
 1 6. Every ship taken as prize, and brought into port within the Custody of 
 jurisdiction of a Prize Court, shall forthwith, and without bulk broken, P" ze S ^'P- 
 be delivered up to the marshal of the Court. 
 
 If there is no such marshal, then the ship shall be in like manner 
 delivered up to the principal officer of Customs at the port.
 
 680 
 
 APPENDIX. 
 
 Bringing 
 in of ship 
 papers. 
 
 Issue of 
 monition. 
 
 Examina- 
 tions on 
 standing 
 interroga- 
 tories. 
 
 Adjudica- 
 tion by 
 Court. 
 
 Further 
 proof. 
 
 Custody, 
 &c., of 
 ships of 
 
 The ship shall remain in the custody of the marshal, or of such 
 officer, subject to the orders of the Court. 
 
 17. The captors shall, with all practicable speed after the ship is 
 brought into port, bring the ship papers into the registry of the 
 Court. 
 
 The officer in command, or one of the chief officers of the capturing 
 ship, or some other person who was present at the capture, and saw 
 the ship papers delivered up or found on board, shall make oath that 
 they are brought in as they were taken, without fraud, addition, sub- 
 duction, or alteration, or else shall account on oath to the satisfaction 
 of the Court for the absence or altered condition of the ship papers or 
 any of them. 
 
 Where no ship papers are delivered up or found on board the 
 captured ship, the officer in command, or one of the chief officers of the 
 capturing ship, or some other person who was present at the capture, 
 shall make oath to that effect. 
 
 18. As soon as the affidavit as to ship papers is filed, a monition 
 shall issue, returnable within twenty days from the service thereof, 
 citing all persons in general to show cause why the captured ship 
 should not be condemned. 
 
 19. The captors shall, with all practicable speed after the captured 
 ship is brought into port, bring three or four of the principal persons 
 belonging to the captured ship before the Judge of the Court or some 
 person authorized in this behalf, by whom they shall be examined on 
 oath on the standing interrogatories. 
 
 The preparatory examinations on the standing interrogatories shall, 
 if possible, be concluded within five days from the commencement 
 thereof. 
 
 20. After the return of the monition, the Court shall, on production 
 of the preparatory examinations and ship papers, proceed with all con- 
 venient speed either to condemn or to release the captured ship. 
 
 21. Where, on production of the preparatory examinations and ship 
 papers, it appears to the Court doubtful whether the captured ship is 
 good prize or not, the Court may direct further proof to be adduced 
 either by affidavit or by examination of witnesses, with or without 
 pleadings, or by production of further documents ; and on such 
 further proof being adduced the Court shall with all convenient speed 
 proceed to adjudication. 
 
 22. The foregoing provisions, as far as they relate to the custody of 
 the ship, and to examination on the standing interrogatories, shall not 
 apply to ships of war taken as prize. 
 
 Entry of 
 claim ; 
 security for 
 costs. 
 
 Claim. 
 
 23. At any time before final decree made in the cause, any person 
 claiming an interest in the ship may enter in the registry of the Court 
 a claim, verified on oath. 
 
 Within five days after entering the claim, the claimant shall give 
 security for costs in the sum of sixty pounds ; but the Court shall have 
 power to enlarge the time for giving security, or to direct security to be 
 given in a larger sum, if the circumstances appear to require it.
 
 NAVAL PRIZE. 681 
 
 Appraisement. 
 
 24. The Court may, if it thinks fit, at any time direct that the Power to 
 .... -1 Court to 
 
 captured ship be appraised. ,. . 
 
 Every appraisement shall be made by competent persons sworn to p ra i semen t. 
 make the same according to the best of their skill and knowledge. 
 
 Delivery on Bail. 
 
 25. After appraisement, the Court may, if it thinks fit, direct that Power to 
 the captured ship be delivered up to the claimant, on his giving Court t 
 security to the satisfaction of the Court to pay to the captors the jj"^ y ^' 
 appraised value thereof in case of condemnation. claimant 
 
 on bail. 
 
 Sale. 
 
 26. The Court may at any time, if it thinks fit, on account of the Power to 
 condition of the captured ship, or on the application of a claimant, Court to 
 order that the captured ship be appraised as aforesaid (if not already onier sale * 
 appraised), and be sold. 
 
 27. On or after condemnation the Court may, if it thinks fit, order Sale on con- 
 that the ship be appraised as aforesaid (if not already appraised), and damnation. 
 be sold. 
 
 28. Every sale shall be> made by or under the superintendence of How sales 
 the Marshal of the Court or of the officer having the custody of the to be made> 
 captured ship. 
 
 29. The proceeds of any sale, made either before or after condem- Payment of 
 nation, and after condemnation the appraised value of the captured proceeds to 
 ship, in case she has been delivered up to a claimant on bail, shall be <-j.' iyi " r as j ei " 
 paid under an order of the Court either into the Bank of England to ot f lc i a ] ac _ 
 the credit of Her Majesty's Paymaster-General, or into the hands of countant. 
 an official accountant (belonging to the commissariat or some other 
 department) appointed for this purpose by the commissioners of Her 
 Majesty's Treasury or by the Lords of the Admiralty, subject in either 
 
 case to such regulations as may from time to time be made, by Order 
 in Council, as to the custody and disposal of money so paid. 
 
 Small-Armed Ships. 
 
 30. The captors may include in one adjudication any number, not One ad- 
 exceeding six, of armed ships not exceeding one hundred tons each, indication 
 taken within three months next before institution of proceedings. smaU ships 
 
 Goods. 
 
 31. The foregoing provisions relating to ships shall extend and Applica- 
 apply, mutatis mutandis, to goods taken as prize on board ship ; and * ion f 
 the Court may direct such goods to be unladen, inventoried and p^v^Jufg 
 warehoused. to pr i ze 
 
 Monition to Captors to proceed. goods. 
 
 32. If the captors fail to institute or to prosecute with effect pro- Power to 
 ceedings for adjudication, a monition shall, on the application of a Court to 
 claimant, issue against the captors, returnable within six days from the ca , on 
 service thereof, citing them to appear and proceed to adjudication ; and proceed to 
 on the return thereof the Court shall either forthwith proceed to adjudica- 
 tion.
 
 682 APPENDIX. 
 
 adjudication or direct further proof to be adduced as aforesaid, and 
 then proceed to adjudication. 
 
 Claim on Appeal. 
 
 Person 33. Where any person, not an original party in the cause, intervenes 
 
 intervening on a p pea i 5 he shall enter a claim, verified on oath, and shall give 
 to n e a n P t P e e r security for costs, 
 claim. 
 
 III. SPECIAL CASES OF CAPTURE. 
 
 Land Expeditions. 
 
 Jurisdic- 34. Where, in an expedition of any of Her Majesty's naval or naval 
 
 tion of and military forces against a fortress or possession on land, goods 
 Prize Court belonging to the State of the enemy or to a public trading company of 
 capture in ^ e enemy exercising powers of government are taken in the fortress or 
 land expe- possession, or a ship is taken in waters defended by or belonging to the 
 dition. fortress or possession, a Prize Court shall have jurisdiction as to the 
 
 goods or ship so taken, and any goods taken on board the ship, as in 
 
 case of prize. 
 
 Conjunct Capture with Ally. 
 
 Jurisdic- 35. Where any ship or goods is or are taken by any of Her 
 
 tion of Majesty's naval or naval and military forces while acting in conjunction 
 
 in ri c Z aseof Vt with any forces of any of Her Majesty's allies, a Prize Court shall 
 
 expedition have jurisdiction as to the same as in case of prize, and shall have 
 
 with ally. power, after condemnation, to apportion the due share of the proceeds 
 
 to Her Majesty's ally, the proportionate amount and the disposition of 
 
 which share shall be such as may from time to time be agreed between 
 
 Her Majesty and Her Majesty's ally. 
 
 Joint Capture. 
 
 Restriction 36. Before condemnation, a petition on behalf of asserted joint 
 on petitions captors shall not (except by special leave of the Court) be admitted, 
 uniesg an( j until they give security to the satisfaction of the Court 
 to contl> rt>ute to the actual captors a just proportion of any costs, 
 charges, or expenses or damages that may be incurred by or awarded 
 against the actual captors on account of the capture and detention of 
 the prize. 
 
 After condemnation, such a petition shall not (except by special 
 leave of the Court) be admitted unless and until the asserted joint 
 captors pay to the actual captors a just proportion of the costs, 
 charges, and expenses incurred by the actual captors in the case, and 
 give such security as aforesaid, and show sufficient cause to the Court 
 why their petition was not presented before condemnation. 
 
 Provided, that nothing in the present section shall extend to the 
 asserted interest of a flag officer claiming to share by virtue of his 
 flag. 
 
 Offences against Law of Prize. 
 
 In case of 37. A Prize Court, on proof of any offence against the law of 
 o ence by na tions, or against this Act, or any Act relating to naval discipline, or
 
 NAVAL PRIZE. 683 
 
 against any Order in Council or Royal Proclamation, or of any breach captors, 
 of Her Majesty's instructions relating to prize, or of any act of dis- V***^? 
 obedience to the orders of the Lords of the Admiralty, or to the com- c^ 
 inand of a superior officer, committed by the captors in relation to 
 any ship or goods taken as prize, or in relation to any person on 
 board any such ship, may, on condemnation, reserve the prize to Her 
 Majesty's disposal, notwithstanding any grant that may have been 
 made by Her Majesty in favour of captors. 
 
 Pre-emption. 
 
 38. Where a ship of a foreign nation passing the seas laden with Purchase 
 naval or victualling stores intended to be carried to a port of any ^j t Ad f l ~ 
 enemy of Her Majesty is taken and brought into a port of the United pu jjii c 
 Kingdom, and the purchase for the service of Her Majesty of the service of 
 stores on board the ship appears to the Lords of the Admiralty expe- 
 
 dient without the condemnation thereof in a Prize Court, in that case 
 the Lords of the Admiralty may purchase, on the account or for the g^jps 
 service of Her Majesty, all or any of the stores on board the ship ; and 
 the Commissioners of Customs may permit the stores purchased to be 
 entered and landed within any port. 
 
 Capture by Ship other than a Ship of War. 
 
 39. Any ship or goods taken as prize by any of the officers and crew Prizes 
 of a ship other than a ship of war of Her Majesty shall, on condemnation, taken by 
 belong to Her Majesty in her Office of Admiralty. ' ffi? d? 
 
 of war to 
 IV.-PKIZE 
 
 40. Where any ship or goods belonging to any of Her Majesty's Salvage to 
 subjects, after being taken as prize by the enemy, is or are retaken re-captors 
 from the enemy by any of Her Majesty's ships of war, the same shall of British 
 be restored by decree of a Prize Court to the owner, on his paying as S 00 ^ s f rom 
 prize salvage one-eighth part of the value of the prize to be decreed and enemy. 
 ascertained by the Court, or such sum not exceeding one-eighth part of 
 
 the estimated value of the prize as may be agreed on between the 
 owner and the recaptors, and approved by order of the Court ; pro- 
 vided, that where the re-capture is made under circumstances of special 
 difficulty or danger, the Prize Court may, if it thinks fit, award to the 
 re-captors as prize salvage a larger part than one-eighth part, but not 
 exceeding in any case one-fourth part, of the value of the prize. 
 
 Provided also, that where a ship after being so taken is set forth or 
 used by any of Her Majesty's enemies as a ship of war, this provision 
 for restitution shall not apply, and the ship shall be adjudicated on as 
 in other cases of prize. 
 
 41. Where a ship belonging to any of Her Majesty's subjects, after Permission 
 being taken as prize by the enemy, is retaken from the enemy by any to re-cap- 
 of Her Majesty's ships of war, she may, with the consent of the re- * ure ^ ship 
 captors, prosecute her voyage, and it shall not be necessary for the re- Q ^^ e 
 captors to proceed to adjudication till her return to a port of the United 
 Kingdom. 
 
 The master or owner, or his agent, may, with the consent of the re-
 
 684 
 
 APPENDIX. 
 
 captors, unload and dispose of the goods on board the ship before 
 adjudication. 
 
 In case the ship does not, within six months, return to a port of the 
 United Kingdom, the re-captors may nevertheless institute proceedings 
 against the ship or goods in the High Court of Admiralty, and the 
 Court may thereupon award prize salvage as aforesaid to the re-captors, 
 and may enforce payment thereof, either by warrant of arrest against 
 the ship or goods, or by monition and attachment against the owner. 
 
 Prize 
 bounty to 
 officers and 
 crew pre- 
 sent at en- 
 gagement 
 with an 
 enemy. 
 
 Ascertain- 
 ment of 
 amount 
 of prize 
 bounty by 
 decree of 
 Prize Court. 
 
 Payment 
 of prize 
 bounty 
 awarded. 
 
 V. PEIZE BOUNTY. 
 
 42. If, in relation to any war, Her Majesty is pleased to declare, by 
 proclamation or Order in Council, her intention to grant prize bounty 
 to the officers and crews of her ships of war, then such of the officers 
 and crew of any of Her Majesty's ships of war as are actually present 
 at the taking or destroying of any armed ship of any of Her Majesty's 
 enemies shall be entitled to have distributed among them as prize 
 bounty a sum calculated at the rate of five pounds for each person on 
 board the enemy's ship at the beginning of the engagement. 
 
 43. The number of the persons so on board the enemy's ship shall 
 be proved in a Prize Court, either by the examinations on oath of the 
 survivors of them, or of any three or more of the survivors, or if there 
 is no survivor by the papers of the enemy's ship, or by the examina- 
 tions on oath of three or more of the officers and crew of Her Majesty's 
 ship, or by such other evidence as may seem to the Court sufficient in 
 the circumstances. 
 
 The Court shall make a decree declaring the title of the officers and 
 crew of Her Majesty's ship to the prize bounty, and stating the amount 
 thereof. 
 
 The decree shall be subject to appeal as other decrees of the Court. 
 
 44. On production of an official copy of the decree the commissioners 
 of Her Majesty's Treasury shall, out of money provided by Parliament, 
 pay the amount of prize bounty decreed, in such manner as any Order 
 in Council may from time to time direct. 
 
 Power for 
 regulating 
 ransom by 
 order in 
 council. 
 
 VI. MISCELLANEOUS PROVISIONS. 
 Ransom. 
 
 45. Her Majesty in Council may from time to time, in relation to 
 any war, make such orders as may seem expedient, according to 
 circumstances, for prohibiting or allowing, wholly or in certain cases, 
 or subject to any conditions or regulations or otherwise, as may from 
 time to time seem meet, the ransoming or the entering into any contract 
 or agreement for the ransoming of any ship or goods belonging to any 
 of Her Majesty's subjects, and taken as prize by any of Her Majesty's 
 enemies. 
 
 Any contract or agreement entered into, and any bill, bond, or other 
 security given for ransom of any ship or goods, shall be under the 
 exclusive jurisdiction of the High Court of Admiralty as a Prize Court 
 (subject to appeal to the Judicial Committee of the Privy Council), 
 and if entered into or given in contravention of any such Order in
 
 NAVAL PRIZE. 685 
 
 Council shall be deemed to have been entered into or given for an 
 illegal consideration. 
 
 If any person ransoms or enters into any contract or agreement for 
 ransoming any ship or goods, in contravention of any such. Order in 
 Council, he shall for every such offence be liable to be proceeded 
 against in the High Court of Admiralty at the suit of Her Majesty in 
 her Office of Admiralty, and 011 conviction to be fined, in the discretion 
 of the Court, any sum not exceeding five hundred pounds. 
 
 Convoy. 
 
 46. If the master or other person having the command of any ship Punish- 
 of any of Her Majesty's subjects, under the convoy of any of Her ment f 
 Majesty's ships of war, wilfully disobeys any lawful signal, instruction, 
 
 or command of the commander of the convoy, or without leave deserts vess els 
 the convoy, he shall be liable to be proceeded against in the High der convoy 
 Court of Admiralty at the suit of Her Majesty in her Office of disobeying 
 Admiralty, and upon conviction to be fined, in the discretion of the orders or 
 Court, any sum not exceeding five hundred pounds, and to suffer convoy 
 imprisonment for such time, not exceeding one year, as the Court may 
 adjudge. 
 
 Customs Duties and Regulations. 
 
 47. All ships and goods taken as prize and brought into a port of Prize ships 
 the United Kingdom shall be liable to and be charged with the same and goods 
 rates and charges and duties of customs as under any Act relating to li a ^ e to 
 the Customs may be chargeable on other ships and goods of the like JjJjJiJ? 
 description ; and 
 
 All goods brought in as prize which would on the voluntary impor- 
 tation thereof be liable to forfeiture or subject to any restriction under 
 the laws relating to the Customs, shall be deemed to be so liable and 
 subject, unless the Commissioners of Customs see fit to authorize the 
 sale or delivery thereof for home use or exportation, unconditionally or 
 subject to such conditions and regulations as they may direct. 
 
 48. Where any ship or goods taken as prize is or are brought into a Regula- 
 port of the United Kingdom, the master or other person in charge or tlons f 
 command of the ship which has been taken or in which the goods are ^^3^^ 
 brought shall, on arrival at such port, bring to at the proper place of ag to . )r j ze 
 discharge, and shall, when required by any officer of Customs, deliver ships and 
 an account in writing under his hand concerning such ship and goods, goods, 
 giving such particulars relating thereto as may be in his power, and 
 
 shall truly answer all questions concerning such ship or goods asked by 
 any such officer, and in default shall forfeit a sum not exceeding one 
 hundred pounds, such forfeiture to be enforced as forfeitures for offences 
 against the laws relating to the Customs are enforced, and every such 
 ship shall be liable to such searches as other ships are liable to, and 
 the officers of the Customs may freely go on board such ship and bring 
 to the Queen's warehouse any goods on board the same, subject never- 
 theless to such regulations in respect of ships of war belonging to Her 
 Majesty as shall from time to time be issued by the Commissioners of 
 Her Majesty's Treasury.
 
 686 
 
 APPENDIX. 
 
 Power for 
 Treasury 
 to remit 
 Customs 
 duties in 
 certain 
 
 Punish- 
 ment of 
 persons 
 guilty of 
 perjury. 
 
 49. Goods taken as prize may be sold either for home consumption 
 or for exportation ; and if in the former case the proceeds thereof, 
 after payment of duties of Customs, are insufficient to satisfy the 
 just and reasonable claims thereon, the Commissioners of Her Majesty's 
 Treasury may remit the whole or such part of the said duties as they 
 see fit. 
 
 Perjury. 
 
 50. If any person wilfully aud corruptly swears, declares, or affirms 
 falsely in any prize cause or appeal, or in any proceeding under this 
 Act, or in respect of any matter required by this Act to be verified on 
 oath, or suborns any other person to do so, he shall be deemed guilty 
 of perjury, or of subornation of perjury (as the case may be), and 
 shall be liable to be punished accordingly. 
 
 Actions 
 against 
 persons 
 executing 
 Act not to 
 be brought 
 without 
 notice, &c. 
 
 Limitation of Actions, &c. 
 
 51. Any action or proceeding shall not lie in any part of Her 
 Majesty's dominions against any person acting under the authority or 
 in the execution or intended execution or in pursuance of this Act for 
 any alleged irregularity or trespass, or other act or thing done or 
 omitted by him under this Act, unless notice in writing (specifying 
 the cause of the action or proceeding) is given by the intending 
 plaintiff or prosecutor to the intended defendant one month at least 
 before the commencement of the action or proceeding, nor unless the 
 action or proceeding is commenced within six months next after the 
 act or thing complained of is done or omitted, or, in case of a con- 
 tinuation of damage, within six months next after the doing of such 
 damage has ceased. 
 
 In any such action the defendant may plead generally that the act 
 or thing complained of was done or omitted by him when acting under 
 the authority or in the -execution or intended execution or in pursuance 
 of this Act, and may give all special matter in evidence ; and the 
 plaintiff shall not succeed if tender of sufficient amends is made by the 
 defendant before the commencement of the action ; and in case no 
 tender has been made, the defendant may, by leave of the Court in 
 which the action is brought, at any time pay into Court such sum of 
 money as he thinks fit, whereupon such proceeding and order shall be 
 had and made in and by the Court as may be had and made on the 
 payment of money into Court in an ordinary action ; and if the 
 plaintiff does not succeed in the action, the defendant shall receive such 
 full and reasonable indemnity as to all costs, charges, and expenses 
 incurred in and about the action as may be taxed and allowed by the 
 proper officer, subject to review ; and though a verdict is given for the 
 plaintiff in the action he shall not have costs against the defendant, 
 unless the judge before whom the trial is had certifies his approval of 
 the action. 
 
 Any such action or proceeding against any person in Her Majesty's 
 Naval service, or in the employment of the Lords of the Admiralty, 
 shall not be brought or instituted elsewhere than in the United 
 Kingdom.
 
 NAVAL PRIZE. G87 
 
 Petitions of Right. 
 
 52. A petition of right, under The Petitions of Right Act, I860, Ji-isdic- 
 may, if the suppliant thinks fit, be intituled in the High Court of Jjj" h c ourt 
 Admiralty, in case the subject matter of the petition or any material O f Admi- 
 part thereof arises out of the exercise of any belligerent right on behalf ralty on 
 
 of the Crown, or would be cognizable in a Prize Court within Her petitions 
 Majesty's dominions if the same were a matter in dispute between J^ ltm 
 private persons. cases> as j n 
 
 Any petition of right under the last-mentioned Act, whether intituled 23 & 24 
 in the High Court of Admiralty or not, may be prosecuted in that Viet. c. 34. 
 Court, if the Lord Chancellor thinks fit so to direct. 
 
 The provisions of this Act relative to appeal, and to the framing 
 and approval of general orders for regulating the procedure and prac- 
 tice of the High Court of Admiralty, shall extend to the case of any 
 such petition of right intituled or directed to be prosecuted in that 
 Court ; and, subject thereto, all the provisions of The Petitions of 
 Right Act, 1860, shall apply, mutatis mutandis, in the case of any such 
 petition of right ; and for the purposes of the present section, the 
 terms " Court " and " Judge " in that Act shall respectively be under- 
 stood to include and to mean the High Court of Admiralty and the 
 judge thereof, and other terms shall have the respective meanings given 
 to them in that Act. 
 
 Orders in Council. 
 
 53. Her Majesty in Council may from time to time make such Power to 
 Orders in Council as seem meet for the better execution of this Act. m ^ e . 
 
 54. Every Order in Council under this Act shall be published in COU ncil. 
 the London Gazette, and shall be laid before both Houses of Parliament Order in 
 within thirty days after the making thereof, if Parliament is then council to 
 sitting, and, if not, then within thirty days after the next meeting of be gazetted, 
 Parliament. &c - 
 
 Savings, 
 
 55. Nothing in this Act shall 
 
 (1.) give to the officers and crew of any of Her Majesty's ships of Not to affect 
 war any light or claim in or to any ship or goods taken 
 as prize or the proceeds thereof, it being the intent of this 
 Act that such officers and crews shall continue to take only treaties, 
 such interest (if any) in the proceeds of prizes as may be &c. 
 from time to time granted to them by the Crown ; or 
 
 (2.) affect the operation of any existing treaty or convention with 
 any foreign power ; or 
 
 (3.) take away or abridge the power of the Crown to enter into 
 any treaty or convention with any foreign power containing 
 any stipulation that may seem meet concerning any matter 
 to which this Act relates ; or 
 
 (4.) take away, abridge, or control, further or otherwise than as 
 expressly provided by this Act, any right, power, or 
 prerogative of Her Majesty the Queen in right of her 
 Crown, or in right of her Office of Admiralty, or any right 
 or power of the Lord High Admiral of the United King-
 
 688 APPENDIX. 
 
 dom, or of the commissioners for executing the office of 
 Lord High Admiral ; or 
 
 (5.) take away, abridge, or control, further or otherwise than as 
 expressly provided by this Act, the jurisdiction or autho- 
 rity of a Prize Court to take cognizance of and judicially 
 proceed upon any capture, seizxire, prize, or reprisal of 
 any ship or goods, and to hear and determine the same, 
 and, according to the course of Admiralty and the law of 
 nations, to adjudge and condemn any ship or goods, or 
 any other jurisdiction or authority of or exerciseable by a 
 Prize Court. 
 
 Commencement. 
 
 Commence- 56. This Act shall commence on the commencement of the Naval 
 mentof Agency and Distribution Act, 1864. 
 
 APPENDIX E. 
 
 THE TREATY OF WASHINGTON, 1871. 
 
 Concluded May 8, 1871 ; Ratificatinos Exchanged June 17, 1871 ; 
 Proclaimed July 4, 1871. 
 
 THE United States of America and Her Britannic Majesty, being 
 desirous to provide for an amicable settlement of all causes of difference 
 between the two countries, have for that purpose appointed their re- 
 spective Plenipotentiaries, that is to say : the President of the United 
 States has appointed, on the part of the United States, as Commis- 
 sioners in a Joint High Commission and Plenipotentiaries, Hamilton 
 Fish, Secretary of State ; Robert Gumming Schenck, Envoy Extraor- 
 dinary and Minister Plenipotentiary to Great Britain ; Samuel Nelson, 
 an Associate Justice of the Supreme Court of the United States ; 
 Ebenezer Rockwood Hoar, of Massachusetts ; and George Henry Wil- 
 liams, of Oregon ; and Her Britannic Majesty, on her part, has ap- 
 pointed as Her High Commissioners and Plenipotentiaries, the Right 
 Honourable George Frederick Samuel, Earl de Grey and Earl of Ripon, 
 Viscount Goderich, Baron Grantham, a Baronet, a Peer of the United 
 Kingdom, Lord President of Her Majesty's most Honourable Privy 
 Council, Knight of the Most Noble Order of the Garter, &c., &c. ; the 
 Right Honourable Sir Stafford Henry Northcote, Baronet, one of Her 
 Majesty's Most Honourable Privy Council, a Member of Parliament, 
 a Companion of the Most Honourable Order of the Bath, &c., &c. ; Sir 
 Edward Thornton, Knight Commander of the Most Honourable Order 
 of the Bath, Her Majesty's Envoy Extraordinary and Minister Pleni- 
 potentiary to the United States of America ; Sir John Alexander 
 Macdonald, Knight Commander of the Most Honourable Order of the 
 Bath, a member of Her Majesty's Privy Council for Canada, and
 
 TREATY OF WASHINGTON, 1871. 689 
 
 Minister of Justice and Attorney-General of her Majesty's Dominion of 
 Canada ; and Mountague Bernard, Esquire, Chichele Professor of Inter- 
 national Law in the University of Oxford. 
 
 And the said Plenipotentiaries, after having exchanged their full 
 powers, which were found to be in due and proper form, have agreed 
 to and concluded the following articles : 
 
 ARTICLE I. 
 
 Whereas differences have arisen between the government of the Alabama 
 United States and the government of Her Britannic Majesty; and still claims to 
 exist, growing out of the acts committed by the several vessels which be referred 
 have given rise to the claims genetically known as the " Alabama *? arbltra - 
 Ulaims": 
 
 An 1 whereas Her Britannic Majesty has authorized Her High Com- 
 mi^sioners and Plenipotentiaries to express, in a friendly spirit, the 
 regret felt by Her Majesty's government for the escape, under whatever 
 circumstances, of The Alabama and other vessels from British ports, 
 and for the depredations committed by those vessels : 
 
 Now, in order to remove and adjust all complaints and claims on Arbitra- 
 the part of the United States, and to provide for the speedy settlement of tors, how- 
 such claims, which are riot admitted by Her Britannic Majesty's govern- to * ie 
 ment, the High Contracting Parties agree that all the said claims, growing 
 out of acts committed by the aforesaid vessels and generically known 
 as the " Alabama Claims" shall be referred to a Tribunal of Arbitra- 
 tion to be composed of five Arbitrators, to be appointed in the follow- 
 ing manner, that is to say : One shall be named by the President of the 
 United States ; one shall be named by Her Britannic Majesty ; His 
 Majesty the King of Italy shall be requested to name one ; the Presi- 
 dent of the Swiss Confederation shall be requested to name one ; and 
 His Majesty the Emperor of Brazil shall be requested to name one. 
 
 In case of the death, absence, or incapacity to serve of any or either Vacancies, 
 of the said Arbitrators, or, in the event of either of the said Arbitrators how tilled, 
 omitting or declining or ceasing to act as such, the President of the 
 United States, or Her Britannic Majesty, or His Majesty the King of 
 Italy, or the President of the Swiss Confederation, or His Majesty the 
 Emperor of Brazil, as the case may be, may forthwith name another 
 person to act as Arbitrator in the place and stead of the Arbitrator 
 originally named by such Head of a State. 
 
 And in the event of the refusal or omission for two months after 
 receipt of the request from either of the High Contracting parties of 
 His Majesty the King of Italy, or the President of the Swiss Confedera- 
 tion, or His Majesty the Emperor of Brazil, to name an Arbitrator 
 either to fill the original appointment or in the place of one who may 
 have died, be absent, or incapacitated, or who may omit, decline, or 
 from any cause cease to act as such Arbitrator, His Majesty the King 
 of Sweden and Norway shall be requested to name one or more persons, 
 as the case may be, to act as such Arbitrator or Arbitrators. 
 
 ARTICLE II. 
 
 The Arbitrators shall meet at Geneva, in Switzerland, at the earliest Arbitra- 
 convenient day after they shall have been named, and shall proceed tors to
 
 690 
 
 APPENDIX. 
 
 meet, when, 
 and where ; 
 their 
 
 ers ' 
 
 a majority 
 to ( ;ide. 
 
 g h rt 
 
 impartially and carefully to examine and decide all questions that shall 
 be ^^ before them on the part of the governments of the United 
 States and Her Britannic Majesty respectively. All questions con- 
 sidered by the tribunal, including the final award, shall be decided by 
 a ma j rity o f a u the Arbitrators. 
 
 Each of the High Contracting parties s hall also name one person to 
 a ttend the tribunal as its agent to represent it generally in all matters 
 connected with the arbitration. 
 
 Case of 
 each party, 
 &c., w ieu 
 
 to arbftra- n 
 tors. 
 
 ARTICLE III. 
 
 The written or printed case of each of the two parties, accompanied 
 the documents, the official correspondence, and other evidence on 
 each re lies, shall be delivered in duplicate to each of the Arbi- 
 tutors and to the agent of the other party as soon as may be after the 
 organization of the tribunal, but within a period not exceeding six 
 months from the date of the exchange of the ratifications of this treaty. 
 
 ARTICLE IV. 
 
 Counter 
 case, &c. 
 
 Time may 
 
 Docu 
 
 Within four months after the delivery on both sides of the written 
 or p^ted case, either party may, in like manner, deliA r er in duplicate 
 to each of the said Arbitrators, and to the agent of the other party, a 
 counter-case, and additional documents, correspondence, and evidence, 
 in reply to the case, documents, correspondence, and evidence so pre- 
 sented by the other party. 
 
 The Arbitrators may, however, extend the time for delivering such 
 counter-case, documents, correspondence, and evidence, when, in their 
 judgment, it becomes necessary, in consequence of the distance of the 
 place from which the evidence to be presented is to be procured. 
 
 If in the case submitted to the Arbitrators either party shall have 
 and papers specified or alluded to any report or document in its own exclusive 
 ," e P ro " possession without annexing a copy, such party shall be bound, if the 
 other party thinks proper to apply for it, to furnish that party with a 
 copy thereof; and either party may call upon the other, through the 
 Arbitrators, to produce the originals or certified copies of any papers 
 adduced as evidence, giving in each instance such reasonable notice as 
 the Arbitrators may require. 
 
 and briefs. 
 
 ARTICLE V. 
 
 It shall be the duty of the agent of each party, wdthin two months 
 a f ter tlie expiration of the time limited for the delivery of the counter- 
 case on both sides, to deliver in duplicate to each of the said Arbi 
 trators and to the agent of the other party a written or printed argu- 
 ment showing the points and referring to the evidence upon which his 
 government relies : and the Arbitrators may, if they desire further 
 elucidation with regard to any point, require a written or printed state- 
 ment or argument, or oral argument by counsel upon it ; but in such 
 case the other party shall be entitled to reply either orally or in writing, 
 as the case may be.
 
 TREATY OF WASHINGTON, 1871. 691 
 
 ARTICLE VI. 
 
 In deciding the matters submitted to the Arbitrators, they shall be Rules to 
 
 governed by the following three rules, which are agreed upon by the govern 
 
 High Contracting Parties as rules to be taken as applicable to the case. j n thg^. 018 
 
 and by such principles of international law not inconsistent there- decision, 
 with as the Arbitrators shall determine to have been applicable to the 
 case. 
 
 RULES. 
 
 A neutral government is bound 
 
 First, to use due diligence to prevent the fitting out, arming, or Obligation 
 equipping, within its jurisdiction, of any vessel which it has reasonable of neutral 
 ground to believe is intended to cruise or to carry on war against a Power o overn ~ 
 with which it is at peace ; and also to use like diligence to prevent the ^m ng ou t 
 departure from its jurisdiction of any vessel intended to cruise or carry vessels in 
 on war as above, such vessel having being specially adapted, in whole i* s waters ; 
 or in part within such jurisdiction, to warlike use. 
 
 Secondly, not to permit or suffer either belligerent to make use of as to the 
 its ports or waters as the base of naval operations against the other, or use ^ ^ 
 for the purpose of the renewal or augmentation of military supplies or po s> 
 arms, or the recruitment of men. 
 
 Thirdly, to exercise due diligence in its own ports and waters, and, to prevent 
 
 as to all persons within its jurisdiction, to prevent any violation of the v il at i u f 
 f 1V ,. j j ,. its obliga- 
 
 toregoing obligations and duties. t j ong 
 
 Her Britannic Majesty has commanded Her High Commissioners and ~, 
 
 Plenipotentiaries to declare that Her Majesty's government can not not^d * 
 
 assent to the foregoing rules as a statement of principles of international mitted to 
 
 law which were in force at the time when the claims mentioned in have been 
 
 Article I. arose ; but that Her Majesty's government, in order to evince in , c ^ 
 
 its desire of strengthening the friendly relations between the two ^f^g 
 
 countries and of making satisfactory provision for the future, agrees arose, 
 that, in deciding the questions between the two countries arising out 
 of those claims, the Arbitrators should assume that Her Majesty's 
 Government had undertaken to act upon the principles set forth in 
 these rules. 
 
 And the High Contracting Parties agree to observe these rules as Ru les to 
 
 between themselves in future, and to bring them to the knowledge of g .^ c 
 
 other maritime powers, and to invite them to accede to them. cases. 
 
 ARTICLE VII. 
 
 The decision of the tribunal shall, if possible, be made within three Decision to 
 
 months from the close of the argument on both sides. ^e ma< k 
 
 It shall be made in writing and dated, and shall be signed by the ^ n ^j,' a t' 1 
 
 Arbitrators who may assent to it. f orm ; 
 
 The said tribunal shall first determine as to each vessel separately 
 whether Great Britain has, by any act or omission, failed to fulfil any 
 
 Y Y 2
 
 G92 
 
 APPENDIX. 
 
 If Great 
 Britain is 
 found in 
 fault, a 
 gross sum 
 IE ay be 
 awarded. 
 
 Award to 
 be in dupli- 
 cate. 
 
 of the duties set forth in the foregoing three rules, or recognized by the 
 principles of international law not inconsistent with such rules, and 
 shall certify such fact as to each of the said vessels. In case the tri- 
 bunal find that Great Britain has failed to fulfil any duty or duties as 
 aforesaid, it may, if it think proper, proceed to award a sum in gross 
 to be paid by Great Britain to the United States for all the claims 
 referred to it ; and in such case the gross sum so awarded shall be paid 
 in coin by the government of Great Britain to the government of the 
 United States, at Washington, within twelve months after the date of 
 the award. 
 
 The award shall be in duplicate, one copy whereof shall be delivered 
 to the agent of the United States for his government, and the other 
 copy shall be delivered to the agent of Great Britain for his govern- 
 ment. 
 
 Expenses 
 of the 
 arbitration 
 how to be 
 defrayed. 
 
 ARTICLE VIII. 
 
 Each government shall pay its own agent, and provide for the 
 proper remuneration of the counsel employed by it and of the Arbi- 
 trator appointed by it, and for the expense of preparing and submit- 
 ting its case to the tribunal. All other expenses connected with the 
 arbitration shall be defrayed by the two governments in equal moieties. 
 
 ARTICLE IX. 
 
 Arbitrators The Arbitrators shall keep an accurate record of their proceedings, 
 record 1 * * !mcl inay a PP oint antl eni P lo y ^ e necessary officers to assist them. 
 
 If Great 
 Britain is 
 fo..nd in 
 fault, and 
 a gross 
 sum is not 
 awarded, 
 board of 
 assessors 
 to be ap- 
 pointed to 
 determine 
 claims. 
 
 Board, 
 when to 
 meet. 
 Members 
 to subscribe 
 a declara- 
 
 ARTICLE X. 
 
 In case the tribunal finds that Great Britain has failed to fulfil any 
 duty or duties as aforesaid, and does not award a sum in gross, the 
 High Contracting Parties agree that a Board of Assessors shall be ap- 
 pointed to ascertain and determine what claims are valid, and what 
 amount or amounts shall be paid by Great Britain to the United 
 States on account of the liability arising from such failure, as to each 
 vessel according to the extent of such liability as decided by the Arbi- 
 trators. 
 
 The Board of Assessors shall be constituted as follows : One member 
 thereof shall be named by the President of the United States, one 
 member thereof shall be named by Her Britannic Majesty, and one 
 member thereof shall be named by the representative at Washington 
 of His Majesty the King of Italy ; and in case of a vacancy happening 
 from any cause, it shall be filled in the same manner in which the 
 original appointment was made. 
 
 As soon as possible after such nominations the Board of Assessors 
 shall be organized in Washington, with power to hold their sittings 
 there, or in New York, or in Boston. The members thereof shall 
 severally subscribe a solemn declaration that they will impartially and 
 carefully examine and decide, to the best of their judgment, and ac-
 
 TREATY OF WASHINGTON, 1871. 693 
 
 cording to justice and equity, all matters submitted to them, and shall 
 forthwith proceed, under such rules and regulations as they may pre- 
 scribe, to the investigation of the claims which shall be presented to 
 them by the government of the United States, arid shall examine and 
 decide upon them in such order and manner as they may think proper, 
 but upon such evidence or information only as shall be furnished by 
 or on behalf of the governments of the United States and of Great 
 Britain respectively. They shall be bound to hear on each separate 
 claim, if required, one person on behalf of each government, as counsel 
 or agent. A majority of the Assessors in each case shall be sufficient for 
 a decision. 
 
 The decision of the Assessors shall be given upon each claim in Decision, 
 wiiting, and shall be signed by them respectively and dated. when and 
 
 Every claim shall be presented to the Assessors within six months given, 
 
 from the day of their first meeting ; but they may, for good cause Claims, 
 shown, extend the time for the presentation of any claim to a further ^sented^ 
 period not exceeding three months. 
 
 The Assessors shall report to each government at or before the ex- Report of 
 piration of one year from the date of their first meeting the amount assessors ; 
 of claims decided by them up to the date of such report ; if further 
 claims then remain undecided, they shall make a further report at or 
 before the expiration of two years from the date of such first meeting ; 
 and in case any claims remain undetermined at that time, they shall 
 make a final report within a further period of six months. 
 
 The report or reports shall be made in duplicate, and one copy bow to be 
 thereof shall be delivered to the Secretary of State of the United j^j^' 1 
 States, and one copy thereof to the representative of Her Britannic Delivered 
 Majesty at Washington. 
 
 All sums of money which may be awarded under this article shall Awards, 
 be payable at Washington, in coin, within twelve months after the ^j| en "f ' 
 delivery of each report. b e p a i<j. 
 
 The Board of Assessors may employ such clerks as they shall think ^j ej .^ 
 necessary. 
 
 The expenses of the Board of Assessors shall be borne equally by -Expenses. 
 the two governments, and paid from time to time, as may be found 
 expedient on the production of accounts certified by the Board. The 
 remuneration of the Assessors shall also be paid by the two govern- 
 ments in equal moieties in a similar manner. 
 
 ARTICLE XL 
 
 The High Contracting Parties engage to consider the result of the 
 
 proceedings of the Tribunal of Arbitration and of the Board of Assessors, arbitrators 
 
 should such Board be appointed, as a full, perfect, and final settlement and as- 
 
 of all the claims hereinbefore referred to ; and further engage that sessors to 
 
 every such claim, whether the same may or may not have been pre- fc 
 
 sented to the notice of, made, preferred, or laid before the Tribunal or Claims not 
 
 Board, shall, from and after the conclusion of the proceedings of the ^ e ^g n 
 
 Tribunal or Board, be considered and treated as finally settled, barred, deemed 
 
 and thenceforth inadmissible. finally 
 
 settled.
 
 694 
 
 APPENDIX. 
 
 Certain 
 
 th^th 
 the A laba- 
 ma claims) 
 against 
 
 "overn- 
 menUo be 
 referred to 
 three com- 
 missioners. 
 
 Their 
 duties 8 
 
 ARTICLE XII. 
 
 The High Contracting Parties agree that all claims on the part of 
 corporations, companies, or private individuals, citizens of the United 
 States, upon the government of Her Britannic Majesty, arising out of acts 
 committed against the persons or property of citizens of the United States 
 during the period between the 13th of April, 1861, and the 9th of 
 April, 1865, inclusive, not being claims growing out of the acts of the 
 vessels referred to in Article I. of this treaty, and all claims, with the 
 like exception, on the part of corporations, companies, or private indi- 
 viduals, subjects of Her Britannic Majesty, upon the government of the 
 United States, arising out of acts committed against the persons or pro- 
 perty of subjects of Her Britannic Majesty during the same period, 
 which may have been presented to either government for its interposi- 
 tion with the other, and which yet remain unsettled, as well as any 
 other such claims which may be presented within the time specified in 
 Article XIV. of this treaty, shall be referred to three Commissioners, 
 to be appointed in the following manner, that is to say : One Commis- 
 sioner shall be named by the President of the United States, one by 
 Her Britannic Majesty, and a third by the President of the United 
 States and Her Britannic Majesty conjointly ; and in case the third 
 Commissioner shall not have been so named within a period of three 
 months from the date of the exchange of the ratifications of this treaty, 
 then the third Commissioner shall be named by the representative at 
 Washington of His Majesty the King of Spain. In case of the death, 
 absence, or incapacity of any Commissioner, or in the event of any 
 Commissioner omitting or ceasing to act, the vacancy shall be filled in 
 the manner hereinbefore provided for making the original appointment ; 
 the period of three months in case of such substitution being calculated 
 from the date of the happening of the vacancy. 
 
 The Commissioners so named shall meet at Washington at the 
 ear ^ iest convenient period after they have been respectively named ; 
 and shall, before proceeding to any business, make and subscribe a 
 solemn declaration that they will impartially and carefully examine 
 and decide, to the best of their judgment, and according to justice and 
 equity, all such claims as shall be laid before them on the part of the 
 governments of the United States and of Her Britannic Majesty, re- 
 spectively ; and such declaration shall be entered on the record of their 
 proceedings. 
 
 Claims to 
 be investi- 
 gated. 
 
 ARTICLE XIII. 
 
 The Commissioners shall then forthwith proceed to the investigation 
 o f the claims which shall be presented to them. They shall investigate 
 fln( j d eC Ki e such claims in such order and such manner as they may 
 think proper, but upon such evidence or information only as shall be 
 furnished by or on behalf of the respective governments. They shall 
 be bound to receive and consider all written documents or statements 
 which may be presented to them by or on behalf of the respective 
 governments in support of, or in answer to, any claim, and to hear, if 
 required, one person on each side, on behalf of each government, as
 
 TREATY OF WASHINGTON, 1871. 695 
 
 counsel or agent for such government, on each and every separate 
 claim. A majority of the Commissioners shall be sufficient for an A majority 
 award in each case. The award shall be given upon each claim in to decide, 
 writing, and shall be signed by the Commissioners assenting to it. It 
 shall be competent for each government to name one person to attend 
 the Commis.sionera as its agent, to present and support claims on its 
 behalf, and to answer claims made upon it, and to represent it gene- 
 rally in all matters connected with the investigation and decision 
 thereof. 
 
 The High Contracting Parties hereby engage to consider the decision Decisions 
 of the Commissioners as absolutely tinal and conclusive upon each to ^ e ^ na '- 
 claim decided upon by them, and to give full effect to such decisions 
 without any objection, evasion or delay whatsoever. 
 
 ARTICLE XIV. 
 
 Every claim shall be presented to the Commissioners within six Claims, 
 months from the day of their first meeting, unless in any case where when to be 
 reasons for delay shall be established to the satisfaction of the Com- Presented 
 
 . . , , . , , -if .to the com- 
 
 missioners, and then, and in any such case, the period for presenting m i ss i ouers 
 
 the claim may be extended by them to any time not exceeding three 
 months longer. 
 
 The Commissioners shall be bound to examine and decide upon Wnea . to 
 every claim within two years from the day of their first meeting. It decided, 
 shall be competent for the Commissioners to decide in each case whether 
 any claim has or has not been duly made, preferred, and laid before 
 them, either wholly or to any and what extent, according to the true 
 intent and meaning of this treaty. 
 
 ARTICLE XV. 
 
 All sums of money which may be awarded by the Commissioners on Awards, 
 account of any claim shall be paid by the one government to the other, w ^ en to be 
 as the case may be, within twelve months after the date of the final pai ' 
 award, without interest, and without any deduction save as specified in 
 Article XVI. of this treaty. 
 
 ARTICLE XVI. 
 
 The Commissioners shall keep an accurate record and correct mi- Records, 
 nutes or notes of all their proceedings, with the dates thereof, and may 
 appoint and employ a secretary, and any other necessary officer or Secretary, 
 officers, to assist them in the transaction of the business which may 
 come before them. 
 
 Each government shall pay its own Commissioner and agent or Expenses, 
 counsel. All other expenses shall be defrayed by the two governments 
 in equal moieties. 
 
 The whole expenses of the commission, including contingent ex- Chargeable 
 penses, shall be defrayed by a rateable deduction on the amoimt of on awards, 
 the sums awarded by the Commissioners, provided always that such
 
 696 
 
 APPENDIX. 
 
 deduction shall not exceed the rate of five per cent, on the sums so 
 awarded. 
 
 ARTICLE XVII. 
 
 Decision of The High Contracting Parties engage to consider the result of the 
 commis- proceedings of this commission as a full, perfect, and final settlement 
 befin3 t0 f aU SUch clainis as are mentioned in Article XII. of this treaty upon 
 upon all either government ; and further engage that every such claim, whether 
 claims that or not the same may have been presented to the notice of, made, pre- 
 might have ferred, or laid before the said commission, shall, from and after the 
 conclusion of the proceedings of the said commission be considered and 
 treated as finally settled, barred, and thenceforth inadmissible. 
 
 Rights of 
 the inhabi- 
 tants of 
 the United 
 
 certain sea 
 fisheries 
 in common 
 with Bri- 
 tish sub- 
 jects. 
 
 Salmon 
 and shad 
 fisheries 
 reserved 
 for British 
 fishermen. 
 
 Eights of 
 
 British 
 
 subjects 
 
 in certain 
 
 United 
 
 States sea 
 
 fisheries. 
 
 ARTICLE XVIII. 
 
 It is agreed by the High Contracting Parties, that in addition to the 
 liberty secured to the United States fishermen by the Convention 
 between the United States and Great Britain, signed at London on 
 the 20th day of October, 1818, of taking, curing, and drying fish on 
 certain coasts of the British North American Colonies therein defined, 
 the inhabitants of the United States shall have, in common with the 
 subjects of Her Britannic Majesty, the liberty, for the term of years 
 mentioned in Article XXXIII. of this treaty, to take fish of every 
 kind, except shell-fish, on the sea-coasts and shores, and in the bays, 
 harbours, and creeks, of the Provinces of Quebec, Nova Scotia, and 
 New Brunswick, and the Colony of Prince Edward's Island, and of the 
 several islands thereunto adjacent, without being restricted to any dis- 
 tance from the shore, with permission to land upon the said coasts and 
 shores and islands, and also upon the Magdalen Islands, for the pur- 
 pose of drying their nets and curing their fish ; provided that, in so 
 doing, they do not interfere with the rights of private property, or with 
 British fishermen in the peaceable use of any part of the said coasts in 
 their occupancy for the same purpose. 
 
 It is understood that the above-mentioned liberty applies solely to 
 the sea fishery, and that the salmon and shad fisheries, and all other 
 fisheries in rivers and the mouths of rivers, are hereby reserved exclu- 
 sively for British fishermen. 
 
 ARTICLE XIX. 
 
 It is agreed by the High Contracting Parties that British subjects 
 shall have, in common with the citizens of the United States, the 
 liberty, for the term of years mentioned in Article XXXIII. of this 
 treaty, to take fish of every kind, except shell-fish, on the eastern sea- 
 coasts and shores of the United States north of the thirty-ninth parallel 
 of north latitude, and on the shores of the several islands thereunto 
 adjacent, and in the bays, harbours, and creeks of the said sea-coasts 
 and shores of the United States and of the said islands, without being 
 restricted to any distance from the shore, with permission to land upon 
 the said coasts of the United States and of the islands aforesaid, for the 
 purpose of drying their nets and curing their fish : provided that, in
 
 TREATY OF WASHINGTON, 1871. G97 
 
 so doing, they do not interfere with the rights of private property, or 
 with the fishermen of the United States in the peaceable use of any 
 part of the said coasts in their occupancy for the same purpose. 
 
 It is understood that the above-mentioned liberty applies solely to Salmon 
 the sea fishery, and that salmon and shad fisheries, and all other anc * s ! la< * 
 fisheries in rivers and mouths of rivers, are hereby reserved exclusively pg^" 6 ^ 
 for fishermen of the United States. 
 
 ARTICLE XX. 
 
 It is agreed that the places designated by the Commissioners ap- Certain 
 pointed under the First Article of the treaty between the United places 
 States and Great Britain, concluded at Washington on the 5th of June, - serve d 
 1854, upon the coasts of Her Britannic Majesty's dominions and the common 
 United States, as places reserved from the common right of fishing right of 
 under that treaty, shall be regarded as in like manner reserved from fishing, 
 the common right of fishing under the preceding Articles. In case any 
 (question should arise between the governments of the United States 
 and of Her Britannic Majesty as to the common right of fishing in 
 places not thus designated as reserved, it is agreed that a Commission 
 shall be appointed to designate such places, and shall be constituted 
 in the same manner, and 'have the same powers, duties, and authority 
 as the Commission appointed under the said First Article of the treaty 
 of the 5th of June, 1854. 
 
 ARTICLE XXI. 
 
 It is agreed that, for the term of years mentioned in Article XXXIII. Certain fisli- 
 
 of this treaty, fish-oil and fish of all kinds (except fish of the inland oil and fish 
 
 lakes, and of the rivers falling into them, and except fish preserved in to lie free 
 oil), being the produce of the fisheries of the United States or of the y- 
 
 Dominion of Canada, or of Prince Edward's Island, shall be admitted 
 into each country, respectively, free of duty. 
 
 ARTICLE XXII. 
 
 Inasmuch as it is asserted by the government of Her Britannic Ma- Commis- 
 jesty that the privileges accorded to the citizens of the United States Burners to 
 under Article XVIII. of this treaty are of greater value than those Determine 
 accorded by Articles XIX- and XXI. of this treaty to the subjects of pensation, 
 Her Britannic Majesty, and this assertion is not admitted by the govern- if any, to 
 ment of the United States, it is further agreed that Commissioners b r e P aicl b y 
 shall be appointed to determine, having regard to the privileges ac- o t ni t f 
 corded by the United States to the subjects of Her Britannic Majesty, privileges 
 as stated in Articles XIX. and XXI. of this treaty, the amount of any granted by 
 compensation which, in their opinion, ought to be paid by the govern- Art. XVIII. 
 ment of the United States to the government of Her Britannic Majesty 
 in return for the privileges accorded to the citizens of the United 
 States under Article XVIII. of this treaty; and that any sum of money 
 which the said Commissioners may so award shall be paid by the 
 United States government, in a gross sum, within twelve mouths after 
 such award shall have been given.
 
 698 
 
 APPENDIX. 
 
 Commis- 
 sioners, 
 how to be 
 appointed. 
 
 When and 
 where to 
 meet ; 
 their 
 
 powers and 
 duties. 
 
 Agent for 
 each 
 govern- 
 ment. 
 
 ARTICLE XXIII. 
 
 The Commissioners referred to in the preceding Article shall be 
 appointed in the following manner, that is to say : One Commissioner 
 shall be named by the President of the United States, one by Her 
 Britannic Majesty, and a third by the President of the United States 
 and Her Britannic Majesty conjointly ; and in case the third Commis- 
 sioner shall not have been so named within a period of three months 
 from the date when this Article shall take effect, then the third Com- 
 missioner shall be named by the representative at London of His Majesty 
 the Emperor of Austria and King of Hungary. In case of the death, 
 absence, or incapacity of any Commissioner, or in the event of any 
 Commissioner omitting or ceasing to act, the vacancy shall be filled in 
 the manner hereinbefore provided for making the original appointment, 
 the period of three months in case of such substitution being calculated 
 from the date of the happening of the vacancy. 
 
 The Commissioners so named shall meet in the City of Halifax, in 
 the Province of Nova Scotia, at the earliest convenient period after 
 they have been respectively named, and shall, before proceeding to any 
 business, make and subscribe a solemn declaration that they will im- 
 partially and carefully examine and decide the matters referred to 
 them to the best of their judgment, and according to justice and 
 equity ; and such declaration shall be entered on the record of their 
 proceedings. 
 
 Each of the High Contracting Parties shall also name one person to 
 attend the Commission as its agent, to represent it generally in all 
 matters connected with the Commission. 
 
 Proceed- 
 ings before 
 these com- 
 missioners, 
 how to be 
 conducted. 
 
 Documents 
 and papers. 
 
 Cases to be 
 closed in 
 six months. 
 
 Awards. 
 
 AETICLE XXIV. 
 
 The proceedings shall be conducted in such order as the Commis- 
 sioners appointed under Articles XXII. and XXIII. of this Treaty 
 shall determine. They shall be bound to receive such oral or written 
 testimony as either government may present. If either party shall 
 offer oral testimony, the other party shall have the right of cross-exami- 
 nation, under such rules as the Commissioners shall prescribe. 
 
 If in the case submitted to the Commissioners either party shall 
 have specified or alluded to any report or document in its own exclu- 
 sive possession, without annexing a copy, such party shall be bound, 
 if the other party thinks proper to apply for it, to furnish that party, 
 with a copy thereof ; and either party may call upon the other, through 
 the Commissioners, to produce the originals or certified copies of any 
 papers adduced as evidence, giving in each instance such reasonable 
 notice as the Commissioners may require. 
 
 The case on either side shall be closed within a period of six months 
 from the date of the organisation of the Commission, and the Commis- 
 sioners shall be requested to give their award as soon as possible there- 
 after. The aforesaid period of six months may be extended for three 
 months in case of a vacancy occurring among the Commissioners under 
 the circumstances contemplated in Article XXIII. of this treaty.
 
 TREATY OF WASHINGTON, 1871. 699 
 
 ARTICLE XXV. 
 
 The Commissioners shall keep an accurate record and correct minutes Records, 
 or notes of all their proceedings, with the dates thereof, and may 
 appoint and employ a secretary, and any other necessary officer or 
 officers, to assist them in the transaction of the business which may 
 come before them. 
 
 Each of the High Contracting Parties shall pay its own Commis- Expenses, 
 sioner and agent or counsel ; all other expenses shall be defrayed by 
 the two governments in equal moieties. 
 
 ARTICLE XXVI. 
 
 The navigation of the River St.- Lawrence, ascending and descending, Navigation 
 from the forty-fifth parallel of north latitude, where it ceases to form f ^ e St. 
 the boundary between the two countries, from, to, and into the sea, 
 shall for ever remain free and open for the purposes of commerce to the 
 citizens of the United States, subject to any laws and regulations of 
 Great Britain, or of the Dominion of Canada, not inconsistent with 
 such privilege of free navigation. 
 
 The navigation of the Rivers Yukon, Porcupine, and Stikine, ascend- Other 
 ing and descending, from, to, and into the sea, shall for ever remain rlvers - 
 free and open for the purposes of commerce to the subjects of Her 
 Britannic Majesty and to the citizens of the United States, subject to 
 any laws and regulations of either country within its own territory not 
 inconsistent with such privilege of free navigation. 
 
 ARTICLE XXVII. 
 
 The government of Her Britannic Majesty engages to urge upon the Use in 
 government of the Dominion of Canada to secure to the citizens of the common of 
 United States the use of the Welland, St. Lawrence, and other canals ^^g^ 
 in the Dominion on terms of equality with the inhabitants of the ^ urge d. 
 Dominion and the government of the United States engages that the 
 subjects of Her Britannic Majesty shall enjoy the use of the St. Clair 
 Flats' Canal on terms of equality with the inhabitants of the United 
 States, and further engages to urge upon the State governments to 
 secure to the subjects of Her Britannic Majesty the use of the several 
 State canals connected with the navigation of the lakes or rivers tra- 
 versed by or contiguous to the boundary-line between the possessions 
 of the High Contracting Parties on terms of equality with the inhabi- 
 tants of the United States. 
 
 ARTICLE XXVIII. 
 
 The navigation of Lake Michigan shall also, for the term of years Navigatior 
 mentioned in Article XXXIII. of this treaty, be free and open for the of Lake 
 purposes of commerce to the subjects of Her Britannic Majesty, subject "" cn ig an - 
 to any laws and regulations of the United States or of the States bor- 
 dering thereon not inconsistent with such privilege of free navigation.
 
 700 
 
 APPENDIX. 
 
 Through 
 transit of 
 goods 
 landed in 
 one country 
 and des- 
 tined for 
 the other. 
 
 ARTICLE XXIX. 
 
 It is agreed that, for the term of years mentioned in Article XXX II I. 
 of this treaty, goods, wares or merchandise arriving at the ports of 
 New York, Boston, and Portland, and any other ports in the United 
 States which have been or may, from time to time, be specially desig- 
 nated by the President of the United States, and destined for Her 
 Britannic Majesty's possessions in North America, may be entered at 
 the proper custom-house and conveyed in transit, without the payment 
 of duties, through the territory of the United States, under such rules, 
 regulations and conditions for the protection of the revenue as the 
 government of the United States may from time to time prescribe ; 
 and, under like rules, regulations, and conditions, goods, wares, or 
 merchandise may be conveyed in transit, without the payment of 
 duties, from such possessions through' the territory of the United States 
 for export from the said ports of the United States. 
 
 It is further agreed that, for the like period, goods, wares, or mer- 
 chandise, arriving at any of the ports of Her Britannic Majesty's posses- 
 sions in North America, and destined for the United States, may be 
 entered at the proper custom-house and conveyed in transit, without 
 the payment of duties, through the said possessions, under such rules 
 and regulations and conditions for the protection of the revenue as the 
 governments of the said possessions may from time to time prescribe ; 
 and, under like rules, regulations, and conditions, goods, wares, or 
 merchandise may be conveyed in transit, without payment of duties, 
 from the United States through the said possessions to other places in 
 the United States, or for export from ports in the said possessions. 
 
 Carriage 
 of goods 
 free of 
 duty from 
 one place 
 to another 
 in the same 
 country. 
 
 Export 
 duties. 
 
 ARTICLE XXX. 
 
 It is agreed that, for the term of years mentioned in Article XXXIII. 
 of this treaty, subjects of Her Britannic Majesty may carry in British 
 vessels, without payment of duty, goods, wares, or merchandise from 
 one port or place within the territory of the United States upon the 
 St. Lawrence, the Great Lakes, and the rivers connecting the same, to 
 another port or place within the territory of the United States as afore- 
 said : provided, that a portion of such transportation is made through 
 the Dominion of Canada by land carriage and in bond, under such 
 rules and regulations as may be agreed upon between the government 
 of Her Britannic Majesty and the government of the United States. 
 
 Citizens of the United States may, for the like period, carry in 
 United States vessels, without payment of duty, goods, wares, or mer- 
 chandise from one port or place within the possessions of Her Britannic 
 Majesty in North America to another port or place within the said 
 possessions : provided, that a portion of such transportation is made 
 through the territory of the United States by land carriage and in 
 bond, under such rules and regulations as may be agreed upon between 
 the government of the United States and the government of Her 
 Britannic Majesty. 
 
 The government of the United States further engages not to impose 
 any export duties on goods, wares, or merchandise carried under this
 
 TREATY OF WASHINGTON, 1871. 701 
 
 article through the territory of the United States ; and Her Majesty's 
 government engages to urge the parliament of the Dominion of Canada 
 and the legislatures of the other Colonies not to impose any export 
 duties on goods, wares, or merchandise carried under this article ; and 
 the government of the United States may, in case such export duties 
 are imposed by the Dominion of Canada, suspend, during the period 
 that such duties are imposed, the right of carrying granted under this 
 article in favour of the subjects of Her Britannic Majesty. 
 
 The government of the United States may suspend the right of Suspension 
 carrying granted in favour of the subjects of Her Britannic Majesty * . tn . ese 
 under this article, in case the Dominion of Canada should at any time {L t jj e ' 
 deprive the citizens of the United States of the use of the canals in the United 
 said Dominion on terms of equality with the inhabitants of the Doini- States, 
 nion, as provided in Article XXVII. 
 
 ARTICLE XXXI. 
 
 The government of Her Britannic Majesty further engages to urge Duty on 
 upon the parliament of the Dominion of Canada and the legislature of lumber cut 
 New Brunswick that no export duty, or other duty, shall be levied on in ? 1 t- De ^ 
 lumber or timber of any kind cut on that portion of the American tcTthe" 131 ' 
 territory in the State of Maine watered by the River St. John and its United 
 tributaries, and floated down that river to the sea, when the same is States, 
 shipped to the United States from the Province of New Brunswick. 
 And, in case any such export or other duty continues to be levied after 
 the expiration of one year from the date of the exchange of the ratifica- 
 tions of this treaty, it is agreed that the government of the United 
 States may suspend the right of carrying hereinbefore granted under 
 Article XXX. of this treaty for such period as such export or other 
 duty may be levied. 
 
 ARTICLE XXXII. 
 
 It is further agreed that the provisions and stipulations of Articles Provisions 
 XVIII. to XXV. of this treaty, inclusive, shall extend to the Colony of Arts - 
 of Newfoundland so far as they are applicable. But if the Imperial xxv^to 1 
 parliament, the legislature of Newfoundland, or the congress of the ex t e nd to 
 United States, shall not embrace the Colony of Newfoundland in their Newfound- 
 laws enacted for carrying the foregoing articles into effect, then this l am '' 
 article shall be of 110 effect ; but the omission to make provision by 
 law to give it effect, by either of the legislative bodies aforesaid, shall 
 not in any way impair any other articles of this treaty. 
 
 ARTICLE XXXIII. 
 
 The foregoing Articles XVIII. to XXV., inclusive, and Article Arts. 
 
 XXX. of this treaty, shall take effect as soon as the laws required to XVIII. 
 
 carry them into operation shall have been passed by the Imperial par- to xxv - 
 
 liament of Great Britain, by the parliament of Canada, and by the xx^ 1 "*' 
 
 legislature of Prince Edward's Island on the one hand, and by the when to 
 
 Congress of the United States on the other. Such assent having been take effect.
 
 702 APPENDIX. 
 
 given, the said articles shall remain in force for the period uf ten years 
 from the date at which they may come into operation ; and further 
 until the expiration of two years after either of the High Contracting 
 Parties shall have given notice to the other of its wish to terminate the 
 same ; each of the High Contracting Parties being at liberty to give 
 such notice to the other at the end of the said period of ten years or at 
 any time afterward (a), 
 
 ARTICLE XXXIV. 
 
 Decision as Whereas it was stipulated by Article I. of the treaty concluded at 
 We^U^u'n Waslim g ton on tne 1 5th. of June, 1846, between the United States 
 daiytobe" anc * Her Britannic Majesty, that the line of boundary between the 
 left to territories of the United States and those of Her Britannic Majesty, 
 
 Emperor of from the point on the forty-ninth parallel of north latitude up to which 
 juTarbitf ^ ^ & ^ a ^ rea( ty keen ascertained, should be continued westward along 
 tor the said parallel of north latitude " to the middle of the channel which 
 
 separates the continent from Vancouver's Island, and thence southerly, 
 through the middle of the said channel and of Fuca Straits, to the 
 Pacific Ocean " ; and whereas the Commissioners appointed by the two 
 High Contracting Parties to determine that portion of the boundary 
 which runs southerly through the middle of the channel aforesaid were 
 imable to agree upon the same ; and whereas the government of her 
 Britannic Majesty claims that such boundary-line should, under the 
 terms of the treaty above recited, be run through the Rosario Straits, 
 and the government of the United States claims that it should run 
 through the Canal de Haro, it is agreed that the respective claims of 
 the government of the United States and of the government of Her 
 Britannic Majesty shall be submitted to the arbitration and award of 
 his Majesty the Emperor of Germany, who, having regard to the above- 
 mentioned article of the said treaty, shall decide thereupon, finally and 
 without appeal, which of those claims is most in accordance with the 
 true interpretation of the treaty of June 15, 1846. 
 
 ARTICLE XXXV. 
 
 Award to The award of His Majesty the Emperor of Germany shall be con- 
 
 be conclu- eidered as absolutely final and conclusive ; and full effect shall be given 
 form and to suc ^ awar< * wi^out any objection, evasion, or delay whatsoever, 
 effect. Such decision shall be given in writing and dated ; it shall be in what- 
 
 soever form His Majesty may choose to adopt ; it shall be delivered to 
 the representatives or other public agents of the United States and 
 of Great Britain, respectively, who may be actually at Berlin, and shall 
 be considered as operative from the day of the date of the delivery 
 thereof. 
 
 ARTICLE XXXVI. 
 
 Cases of The written or printed case of each of the two parties, accompanied 
 
 the two by the evidence offered in support of the same, shall be laid before His 
 
 (a) [See 35 & 36 Viet. c. 45].
 
 TREATY OF WASHINGTON, 1871. 703 
 
 Majesty the Emperor of Germany within six mouths from the date of parties to 
 the exchange of the ratifications of this treaty, and a copy of such case ] ' e laid 
 and evidence shall be communicated by each party to the other through arbitrator 
 their respective representatives at Berlin. 
 
 The High Contracting Parties may include in the evidence to be 
 considered by the Arbitrator such documents, official correspondence, 
 and other official or public statements bearing on the subject of the 
 reference as they may consider necessary to the support of their re- 
 spective cases. 
 
 After the written or printed case shall have been communicated by Counter- 
 each party to the other, each party shall have the power of drawing up cases - 
 and laying before the Arbitrator a second and definitive statement, if 
 it think fit to do so, in reply to the case of the other party so commu- 
 nicated, which definitive statement shall be so laid before the Arbi- 
 trator, and also be mutually communicated in the same manner as 
 aforesaid, by each party to the other, within six months from the date 
 of laying the first statement of the case before the Arbitrator. 
 
 ARTICLE XXXVII. 
 
 If, in the case submitted to the Arbitrator, either party shall specify Papers and 
 or allude to any report or document in its own exclusive possession documents, 
 without annexing a copy, such party shall be bound, if the other party 
 thinks proper to apply for it, to furnish that party with a copy thereof, 
 and either party may call upon the other, through the Arbitrator, to 
 produce the originals or certified copies of any papers adduced as evi- 
 dence, giving in each instance such reasonable notice as the Arbitrator 
 may require. And if the Arbitrator should desire further elucidation 
 or evidence with regard to any point contained in the statements laid 
 before him, he shall be at liberty to require it from either party, and 
 he shall be at liberty to hear one counsel or agent for each party, in 
 relation to any matter, and at such time, and in such manner, as he 
 may think fit. 
 
 ARTICLE XXXVIII. 
 
 The representatives or other public agents of the United States and Agents of 
 of Great Britain at Berlin, respectively, shall be considered as the each g- 
 agents of their respective governments to conduct their cases before the vern 
 Arbitrator, who shall be requested to address all his communications, 
 and give all his notices, to such representatives or other public agents, 
 who shall represent their respective governments generally in all 
 matters connected with the arbitration. 
 
 ARTICLE XXXIX. 
 
 It shall be competent to the Arbitrator to proceed in the said arbi- Proceed- 
 tration, and all matters relating thereto, as and when he shall see ia S^ f tne 
 fit, either in person, or by a person or persons named by him for that arbltrator - 
 purpose, either in the presence or absence of either or both agents, and 
 either orally or by written discussion or otherwise.
 
 704 
 
 APPENDIX. 
 
 Secretary 
 or clerk. 
 
 Expenses, 
 how to be 
 paid. 
 
 ARTICLE XL. 
 
 The Arbitrator may, if lie think fit, appoint a secretary or clerk for 
 the purposes of the proposed arbitration, at such rate of remuneration 
 as he shall think proper. This and all other expenses of and r,on- 
 nected with the said arbitration, shall be provided for as hereinafter 
 stipulated. 
 
 ARTICLE XLI. 
 
 The Arbitrator shall be requested to deliver, together with his 
 award, an account of all the costs and expenses which he may have been 
 put to in relation to this matter, which shall forthwith be repaid by 
 the two governments in equal moieties. 
 
 Form of 
 award. 
 
 Ratifica- 
 tions. 
 
 ARTICLE XLII. 
 
 The Arbitrator shall be requested to give his award in writing as 
 early as convenient after the whole case on each side shall have been 
 laid before him, and to deliver one copy thereof to each of the said 
 
 agents. 
 
 ARTICLE XLIII. 
 
 The present treaty shall be duly ratified by the President of the 
 United States of America, by and with the advice and consent of the 
 Senate thereof, and by Her Britannic Majesty ; and the ratifications 
 shall be exchanged either at Washington or at London within six 
 months from the date hereof, or earlier if possible. 
 
 In faith whereof, we, the respective Plenipotentiaries, have signed 
 this treaty, and have hereunto affixed our seals. 
 
 Done in duplicate at Washington the 8th day of May, in the year of 
 our Lord 1871. 
 
 [L.S.] HAMILTON FISH. 
 
 [L.S.] ROBT. C. SCHENCK. 
 
 [L.S.] SAMUEL NELSON. 
 
 [L.S.] EBENEZER ROCKWOOD HOAR. 
 
 [L.S.] GEO. H. WILLIAMS. 
 
 [L.S.] DE GREY AND RIPON. 
 
 [L.S.] STAFFORD H. NORTHCOTE. 
 
 [L.S.] EDWD. THORNTON. 
 
 [L.S.] JOHN A. MACDONALD. 
 
 [L.S.] MOUNTAGUE BERNARD.
 
 TREATIES RELATING TO TURKEY. 705 
 
 APPENDIX F. 
 
 EXTRACTS FROM TREATIES RELATING TO TURKEY. 
 
 The material clauses of the principal recent treaties relating to the 
 guarantee of the independence of the Ottoman Empire, and to the 
 navigation of the Black Sea, the Bosphorus and the Dardanelles, are 
 here collected together. 
 
 TREATY OF PARIS. 
 
 General Treaty of Peace between Great Britain, Austria, France, Prussia, 
 Russia, Sardinia, and Turkey. Signed at Paris, 30 th March, 1856. 
 
 Integrity and Independence of Ottoman Empire. 
 
 Iisr the name of Almighty God. 
 
 Their Majesties the Queen of the United Kingdom of Great Britain 
 and Ireland, the Emperor of the French, the Emperor of all the 
 Russias, the King of Sardinia, and the Emperor of the Ottomans, 
 animated by a desire of putting an end to the calamities of war, and 
 wishing to prevent a return, of the complications which occasioned it, 
 resolved to come to an understanding with His Majesty the Emperor 
 of Austria, as to the bases on which peace might be re-established and 
 consolidated, by securing, through effectual and reciprocal guarantees, 
 the Independence and Integrity of the Ottoman Empire. 
 
 Prussia was also invited to take a part in the deliberations preceding 
 this Treaty, and acceded to the request. 
 
 Articles I. to VI. refer to the evacuation of occupied territories, 
 the restoration of Sebastopol, &c., to Russia, and of Kars to Turkey, 
 the exchange of prisoners of war, and the amnesty to be granted by 
 each of the Powers to those of their subjects who might have been 
 compromised by any participation in the war in favour of the enemy. 
 
 Admission of the Sublime Porte into the European System* Guarantee of 
 Independence of Ottoman Empire. 
 
 ARTICLE VII. 
 
 Her Majesty the Queen of the United Kingdom of Great Britain 
 and Ireland, His Majesty the Emperor of Austria, His Majesty the 
 Emperor of the French, His Majesty the King of Prussia, His Majesty 
 the Emperor of all the Russias, and His Majesty the King of Sardinia, 
 declare the Sublime Porte admitted to participate in the advantages of 
 the Public Law and System (concert} of Europe. Their Majesties 
 engage, each on his part, to respect the independence and territorial 
 integrity of the Ottoman Empire ; guarantee in common the strict 
 observance of that engagement ; and will, in consequence, consider any 
 act tending to its violation as a question of general interest. 
 
 z z
 
 706 APPENDIX. 
 
 Mediation in event of Misunderstanding between the Sublime Porte and 
 one or more of the Contracting Parties. 
 
 ARTICLE VIII. 
 
 If there should arise between the Sublime Porte and one or more of 
 the other signing Powers any misunderstanding which might endanger 
 the maintenance of their relations, the Sublime Porte, and each of 
 such Powers, before having recourse to the use of force, shall afford the 
 other Contracting Parties the opportunity of preventing such an 
 extremity by means of their mediation. 
 
 Amelioration of condition of Christian Population of Ottoman Empire. 
 
 ARTICLE IX. 
 
 His Imperial Majesty the Sultan having, in his constant solicitude 
 for the welfare of his subjects, issued a Firman, which, while amelio- 
 rating their condition without distinction of religion or of race, records 
 his generous intentions towards the Christian population of his Empire, 
 and wishing to give a further proof of his sentiments in that respect, 
 has resolved to communicate to the Contracting Parties the said Firman, 
 emanating spontaneously from his sovereign will. 
 
 Non-interference of Allies in internal affairs of Ottoman Empire. 
 The Contracting Powers recognize the high value of this communi- 
 cation. It is clearly understood that it cannot, in any case, give to 
 the said Powers the right to interfere, either collectively or separately, 
 in the relations of His Majesty the Sultan with his subjects, nor in the 
 internal administration of his Empire. 
 
 Closing of the Straits of the Bosphorus and Dardanelles. 
 
 ARTICLE X. 
 
 The Convention of 13th of July, 1841, which maintains the ancient 
 rule of the Ottoman Empire relative to the closing of the Straits of the 
 Bosphorus and of the Dardanelles has been revised by common consent. 
 
 The Act concluded for that purpose, and in conformity -with that 
 principle, between the High Contracting Parties, is and remains an- 
 nexed to the present Treaty, and shall have the same force as if it 
 formed an integral part thereof. 
 
 Neutralization of the Black Sea. 
 
 ARTICLE XI. 
 
 The Black Sea is neutralized ; its waters and its ports, thrown open 
 to the mercantile marine of every nation, are formally and in perpe- 
 tuity interdicted to the flag of war, either of the Powers possessing 
 its coasts, or of any other Power, with the exceptions mentioned in 
 Articles XIV. and XIX. of the present Treaty (a). 
 
 (a) [This article was abrogated on the 13th March, 1871. See Post.]
 
 TREATIES RELATING TO TURKEY. 707 
 
 Commercial Regulations in the Black Sea, 
 
 ARTICLE XII. 
 
 Free from any impediment, the commerce in the ports and waters 
 of the Black Sea, shall be subject only to regulations of health, 
 customs, and police, framed in a spirit favourable to the development 
 of commercial transactions. 
 
 Appointment of foreign Consuls in ports of Black Sea. 
 In order to afford to the commercial and maritime interests of every 
 nation the security which is desired, Russia and the Sublime Porte 
 will admit Consuls into their ports situated upon the coast of the 
 Black Sea, in conformity with the principles of international law. 
 
 Military-maritime Arsenals not to be established or maintained on coasts 
 of Black Sea. 
 
 ARTICLE XIII. 
 
 The Black Sea being neutralized according to the terms of Article 
 XL, the maintenance or establishment upon its coast of military- 
 maritime arsenals becomes alike unnecessary and purposeless ; in con- 
 sequence, His Majesty the Emperor of all the Russias, and His Imperial 
 Majesty the Sultan, engage not to establish or to maintain upon that 
 coast any military-maritime arsenal (6). 
 
 Russian and Ottoman naval force in Black Sea. 
 
 ARTICLE XIV. 
 
 Their Majesties the Emperor of all the Russias and the Sultan 
 having concluded a Convention for the purpose of settling the force 
 and the number of light vessels, necessary for the service of their 
 coasts, which they reserve to themselves to maintain in the Black Sea, 
 that Convention is annexed to the present Treaty, and shall have the 
 same force and validity as if it formed an integral part thereof. It 
 cannot be either annulled or modified without the assent of the Powers 
 signing the present Treaty (6). 
 
 Articles XV. to XIX. provide for the navigation of the Danube. 
 
 Rectification of Frontier of Bessarabia. 
 
 ARTICLE XX. 
 
 In exchange for the towns, ports, and territories enumerated in 
 Article IV. of the present Treaty, and in order more fully to secure the 
 freedom of the navigation of the Danube, His Majesty the Emperor 
 of all the Russias consents to the rectification of his frontier in 
 Bessarabia. 
 
 The new frontier shall begin from the Black Sea, one kilometre to 
 
 (6) [Abrogated in 1871. See Post.] 
 
 z z 2
 
 708 APPENDIX. 
 
 the east of the Lake Bourna Sola, shall run perpendicularly to the 
 Akerman Road, shall follow that road to the Val de Trajan, pass to 
 the south of Bolgrad, ascend the course of the River Yalpuck to the 
 Height of Saratsika, and terminate at Katamori on the Pruth. Above 
 that point the old frontier between the two Empires shall not undergo 
 any modification. 
 
 Delegates to trace new frontier. 
 
 Delegates of the Contracting Powers shall fix, in its details, the line 
 of the new frontier. 
 
 Russian cessions to Bessarabia to be annexed to Moldavia. 
 ARTICLE XXI. 
 
 The territory ceded by Russia shall be annexed to the Principality 
 of Moldavia, under the Suzerainty of the Sublime Porte. 
 
 Rights and privileges of Inhabitants of ceded territory. 
 
 The inhabitants of that territory shall enjoy the rights and privileges 
 secured to the Principalities ; and during the space of three years they 
 shall be permitted to transfer their domicile elsewhere, disposing freely 
 of their property. 
 
 Guarantee of privileges and immunities of Watlachia and Moldavia. 
 ARTICLE XXII. 
 
 The Principalities of Wallachia and Moldavia shall continue to enjoy 
 under the Suzerainty of the Porte, and under the guarantee of the 
 Contracting Powers, the privileges and immunities of which they are 
 in possession. No exclusive protection shall be exercised over them 
 by any of the guaranteeing Powers. 
 
 Non-interference in internal affairs. 
 
 There shall be no separate right of interference in their internal 
 affairs. 
 
 Independent and National Administration, &c., of Principalities. 
 ARTICLE XXIII. 
 
 The Sublime Porte engages to preserve to the said Principalities 
 an independent and national administration, as well as full liberty of 
 worship, of legislation, of commerce, and navigation. 
 
 The rest of Article XXIII., and Articles XXIV. and XXV., refer 
 to the internal condition of the Principalities.
 
 TREATIES RELATING TO TURKEY. 709 
 
 National armed force in Principalities. 
 ARTICLE XXVI. 
 
 It is agreed that there shall be in the Principalities a national 
 armed force, organised with the view to maintain the security of the 
 interior, and to ensure that of the frontiers. No impediment shall be 
 opposed to the extraordinary measures of defence, which, by agreement 
 with the Sublime Porte, they may be called upon to take in order to 
 repel any external aggression. 
 
 Maintenance of internal tranquillity in Principalities. 
 ARTICLE XXVII. 
 
 If the internal tranquillity of the Principalities should be menaced or 
 compromised, the Sublime Porte shall come to an understanding with 
 the other Contracting Powers in regard to the measures to be taken for 
 maintaining or re-establishing legal order. 
 
 Non-intervention by force of amis in Principalities. 
 
 No armed intervention can take place without previous agreement 
 between those Powers. 
 
 Bights and immunities of Servia guaranteed by Contracting Powers. 
 ARTICLE XXVIII. 
 
 The Principality of Servia shall continue to hold of the Sublime 
 Porte, in conformity with the Imperial Hats which fix and determine 
 its rights and immunities placed henceforward under the collective 
 guarantee of the Contracting Powers. 
 
 Servia. Independent and National Administration. 
 
 In consequence, the said Principality shall preserve its independence 
 and national administration, as well as full liberty of worship, of legis- 
 lation, of commerce, and of navigation. 
 
 Right of garrison of Sublime Porte maintained. Non-intervention by 
 force of arms in Servia. 
 
 ARTICLE XXIX. 
 
 The right of garrison of the Sublime Porte, as stipulated by anterior 
 regulations, is maintained (d). No armed intervention can take place 
 in Servia without previous agreement between the High Contracting 
 Powers. 
 
 (d) [This right was renounced by Turkey on the 10th April, 1867.]
 
 710 APPENDIX. 
 
 Maintenance of Integrity of Russian and Ottoman possessions in Asia. 
 
 ARTICLE XXX. 
 
 His Majesty the Emperor of All the Russias and His Majesty the 
 Sultan maintain in its integrity the state of their possessions in Asia, 
 such as it legally existed before the rupture. 
 
 Line of frontier to be verified. 
 
 In order to prevent all local dispute the line of frontier shall be 
 verified, without any prejudice as regards territory being sustained by 
 either party (e). 
 
 By Articles XXXI. and XXXII. it was agreed that Russian territory 
 should be evacuated by the allied troops, and that commerce should 
 continue as before between the parties, and in other matters their 
 subjects should be respectively treated upon the footing of the most 
 favoured nation. 
 
 STRAITS CONVENTION DARDANELLES AND BOSPHORUS. 
 
 Convention between Great Britain, Austria, France, Prussia, Russia, and 
 Sardinia on the one part, and the Sultan on the other part, respecting 
 the Straits of the Dardanelles and of the Bosphorus. Signed at Paris, 
 30th March, 1856. 
 
 Prohibition to foreign ships of war to enter Bosphorus and Dardanelles. 
 
 ARTICLE I. 
 
 His Majesty the Sultan, on the one part, declares that he is firmly 
 resolved to maintain for the future the principle invariably established 
 as the ancient rule of his Empire, and in virtue of which it has, at all 
 times, been prohibited for the ships of war of foreign Powers to enter 
 the Straits of the Dardanelles and of the Bosphorus, and that so long as 
 the Porte is at peace, His Majesty will admit no foreign ship of war 
 into the said Straits. 
 
 Agreement of Six Powers to respect this Prohibition. 
 
 And their Majesties (the sovereigns of the Contracting Parties) on 
 the other part engage to respect this determination of the Sultan, and 
 to conform themselves to the principle above declared. 
 
 Admission, under Firman, of light vessels in the service of Foreign 
 Missions. 
 
 ARTICLE II. 
 
 The Sultan reserves to himself, as in past times, to deliver Firmans 
 of Passage for light vessels under flag of war, which shall be employed, 
 as is usual, in the Missions of foreign Powers. 
 
 () [A commission was appointed for this purpose.]
 
 TREATIES RELATING TO TURKEY. 711 
 
 Light vessels tinder flag of war stationed at mouths of the Danube. 
 ARTICLE III. 
 
 The same exception applies to light vessels under flag of war which 
 each of the Contracting Powers is authorized to station at the mouths 
 of the Danube in order to secure the execution of the regulations rela- 
 tive to the liberty of that river, and the number of which is not to 
 exceed two for each Power. 
 
 GUARANTEE OF INTEGRITY OF OTTOMAN EMPIRE. 
 
 Treaty between Great Britain, Austria, and France, guaranteeing the 
 Independence and Integrity of the Ottoman Empire. Signed at 
 Paris, 15th April, 1856. 
 
 Guarantee of Independence and Integrity of the Ottoman Empire. 
 ARTICLE I. 
 
 The High Contracting Parties guarantee, jointly and severally, the 
 independence and the integrity of the Ottoman Empire, recorded in the 
 Treaty concluded at Paris on the 30th of March, 1856. 
 
 Any infraction of Treaty of 30th March, 1856, to be considered as a 
 casus belli. 
 
 ARTICLE II. 
 
 Any infraction of the stipulations of the said Treaty will be con- 
 sidered by the Powers signing the present Treaty, as a casus belli. 
 They will come to an understanding with the Sublime Porte as to the 
 measures which have become necessary, and will without delay 
 determine among themselves as to the employment of their military or 
 naval forces. 
 
 NAVAL FORCE IN THE BLACK SEA. 
 
 Convention between Russia and Turkey limiting their Naval Force in tJie 
 Black Sea. Signed at Paris, 30th March, 1856 (f). 
 
 Vessels of War to be maintained in the Slack Sea. 
 ARTICLE I. 
 
 The High Contracting Parties mutually engage not to have in the 
 Black Sea any other vessels of war than those of which the number, 
 the force, and the dimensions are hereinafter stipulated. 
 
 (/) [Abrogated 13th March, 1871.]
 
 712 APPENDIX. 
 
 Number, force and dimensions of Vessels of War to be maintained in 
 the Black Sea. 
 
 ARTICLE II. 
 
 The High Contracting Parties reserve to themselves each to maintain 
 in that Sea, six steam vessels of 50 metres in length at the line of 
 flotation, of a tonnage of 800 tons at the maximum, and four light 
 steam or sailing vessels of a tonnage which shall not exceed 200 tons 
 each. 
 
 TREATY OF 1871 RELATIVE TO THE BLACK SEA. 
 
 On the 31st of October, 1870, Prince Gortchakoff addressed a 
 note to the Russian Ambassador in England, in which he atated that 
 the circumstances which existed at the time when the Treaty of 
 Paris was signed having greatly changed, " His Imperial Majesty can- 
 not any longer hold himself bound by the stipulations of the Treaty 
 of the 30th of March, 1856, as far as they restrict his sovereign rights 
 in the Black Sea." To this announcement Lord Granville replied, 
 on the part of England, that whether the desire of Russia to be free 
 from the provisions of this Treaty was reasonable or not, she could 
 not by her own act abrogate any of its terms. If treaties were to 
 be altered it could only be done by the consent of all the parties to 
 them. 
 
 A Conference was then proposed by Prussia, and ultimately it was 
 agreed that Plenipotentiaries from the Powers concerned should meet 
 in London. Before discussing the question of admitting Russian and 
 Turkish vessels of war into the Black Sea, it was deemed advisable by 
 the Powers, since the binding effect of all treaties appeared to be 
 questioned by Russia, to make a formal statement of what at first sight 
 appears to be one of the primary axioms not only of international law, 
 but of all law or morality, viz., that a treaty cannot justly be set 
 aside without the consent of all the parties to it. Having solemnly 
 enunciated this truism, the Powers then proceeded to comply with the 
 demands of Russia, which had been first put forward in direct opposi- 
 tion to it. 
 
 INVIOLABILITY OF TREATIES. 
 
 Declaration between Great Britain, Austria, France, Italy, North 
 Germany, Russia, and Turkey, as to non-alteration of Treaties 
 without consent of Contracting Parties. London, 17th January, 
 1871. 
 
 The Plenipotentaries of North Germany, of Austria-Hungary, 
 of Great Britain, of Italy, of Russia, and of Turkey, assembled 
 to-day in Conference, recognise that it is an essential principle of 
 the Law of Nations that no Power can liberate itself from the 
 engagements of a treaty, nor modify the stipulations thereof, unless 
 with the consent of the Contracting Powers by means of an amicable 
 arrangement.
 
 TREATIES RELATING TO TURKEY. 713 
 
 TREATY OF 1871. 
 
 Treaty between Great Britain, Austria, France, Germany (Prussia), Holy, 
 Russia, and Turkey, for the Revision of certain Stipulations of the 
 Treaties of 30th March, 1856, relative to t)ie Black Sea and Danube. 
 Signed at London, 1 3th March, 1871. 
 
 Abrogation of Articles of Treaty of 30th March, 1856, and of 
 Convention of 30th March, 1856. 
 
 ARTICLE I. 
 
 Articles XL, XIII., and XIV. of the Treaty of Paris of the 30th 
 March, 1856, as well as the Special Convention concluded between 
 Eussia and the Sublime Porte, and annexed to the said Article XIV., 
 are abrogated, and replaced by the following Article. 
 
 Closing of Straits of Dardanelles and Bosphorus, and power to open them 
 to Vessels of War in time of peace. 
 
 ARTICLE II. 
 
 The principle of the closing of the Straits of the Dardanelles and 
 the Bosphorus such as it has been established by the separate Con- 
 vention of the 30th of March, 1856, is maintained, with power to His 
 Imperial Majesty the Sultan to open the Straits in time of peace to the 
 vessels of war of friendly and allied Powers, in case the Sublime Porte 
 should judge it necessary in order to secure the execution of the stipula- 
 tions of the Treaty of Paris of the 30th March, 1856. 
 
 Black Sea open to Mercantile Marine of all nations. 
 ARTICLE III. 
 
 The Black Sea remains open, as heretofore, to the Mercantile 
 Marine of all nations. 
 
 The remaining Articles of this Treaty (Arts. IV. to IX. ) provide for 
 the maintenance and neutrality of the navigation of the Danube. A 
 separate Treaty was also signed by Russia and Turkey on the 13th of 
 March, 1871, by which the former Treaty of the 30th of March, 1856, 
 between these two States, was abrogated.
 
 INDEX. 
 
 The first figure refers to the paragraph in which the subject will be found ; 
 the second figure refers to the page. 
 
 PAGE 
 ABSENT PARTIES, legal proceedings against, 142 . . . . 190 
 
 ACTIONS-AT-LAW regulated by lexfori, 94 125 
 
 against foreign sovereigns, 101 b 135 
 
 between alien enemies, 310 370 
 
 ADJUDICATIONS of international tribunals, a source of international 
 
 law, 15 23 
 
 ADMIRALTY, Court of, collusiveness of sentence as to title, 138 . 186 
 
 droits of , 302 360 
 
 courts, are courts of international law, 15 d . . . .25 
 
 ADRIATIC SEA, claim of Venice to, 181 243 
 
 AGENT to receive money in enemy's country, 315 b . . . . 377 
 
 AIX-LA-CHAPELLE, Congress of, 64 82 
 
 ALABAMA, THE, facts relating to, 439 r 521 
 
 ALAND ISLANDS not to be fortified, 62 a 79 
 
 ALIBERT, LUCIEN, case of, 151 S 212 
 
 ALIENS, rights of, to hold lands in various States, 82 a . . . 112 
 
 in England 633 
 
 resident in foreign country, position of, 151 I . . . . 205 
 testamentary domicile of, in England, 83 b .... 116 
 
 divesting of British nationality acquired by 634 
 
 not entitled to jury de medietate linguee 634 
 
 children of ambassadors born abroad, are not, 224 . . . 282 
 
 ALLEGIANCE, definition of, 151 A 202 
 
 discussion between England and United States as to, 151 . 208 
 
 distinguished from domicile, 328 388 
 
 renunciation of British 634 
 
 oath of, British 636 
 
 ALLIANCE, treaties of, 278 . 335 
 
 of England and Holland, 281 336 
 
 of England and Portugal, 284 .340 
 
 the Holy, 64 82 
 
 ALLIES, recapture of goods of, from the enemy, 368 . . . 439 
 
 ALTERNAT, diplomatic usage of, 157 215 
 
 AMBASSADORS, history of their privileges, 206 . . . 272 
 
 reasons for them, 5 -. . .. 7 
 
 rights of a State to send and receive, 207 . . . . 272 
 
 conditional reception of, 210 275 
 
 functions of, 212 276 
 
 distinguished from envoys, 214 . . . . . 277
 
 716 INDEX. 
 
 PAGE 
 AMBASSADORS continued. 
 
 powers of, as to negotiating, 217 279 
 
 what laws they are subject to, 95 125 
 
 instructions to, 219 280 
 
 exemption of, from local laws, 98 128 
 
 passports for, 220 280 
 
 duties of, 221 280 
 
 privileges of, 224 281 
 
 inviolability of, 224 a 282 
 
 extent of their immunity, 225 283 
 
 offences by, 225 285 
 
 houses, their exemption, 227 . . 287 
 
 discussion between America and Prussia respecting in- 
 
 Tiolability of, 228 287 
 
 suits by and against, 225 b 283 
 
 taxation of , 242 . BOO 
 
 privilege of their messengers, 243 300 
 
 passage of, through a foreign State, 224 301 
 
 their freedom of worship, 248 304 
 
 termination of their mission, 250 305 
 
 exterritoriality of their houses, 225 a . . . .283 
 
 privileges of , in England, 225 c 284 
 
 expulsion of, 225 d 286 
 
 ANDORRE, Kepublic of, 36 d 50 
 
 ANDRASSY NOTE, issuing of , 70 c 95 
 
 ANGARIE, DROIT D', during war, 293 c 352 
 
 ARBITRATION as to the north-west boundary, 176 a . . .236 
 
 a means of settling disputes, 288 b 346 
 
 at Geneva, 439 o 520 
 
 ARGUELLES, case of , 116 c 158 
 
 ARMED NEUTRALITY of 1780, as to free ships, free goods, 450 . 534 
 
 of 1800, 453 536 
 
 as to ships under convoy, 527 610 
 
 ARMISTICE, or truce, 400 . . . 466 
 
 power to conclude, 401 . . . , . . . .467 
 period of operation, 402 . . . . . . . . 467 
 
 rules for interpreting, 403 . .468 
 
 expiration of , 404 468 
 
 operation of, 411 n . . 482 
 
 ASHBURTON TREATY as to extradition, 117 160 
 
 construction of, 117 a ... t .161 
 
 AUBAINE, DROIT D', explanation of, 82 . . . . . . Ill 
 
 AUSTRIA-HUNGARY, constitution of , 41 a 54 
 
 BALANCE OF POWER in Europe, account of, 64 a . . . . 83 
 
 preservation of, 63 . . . .80 
 
 BALLOONS, persons in, whether spies, 344 b . . . . . 409 
 
 BALTIC SEA, whether open to the world, 185 248 
 
 BANKRUPTCY, effect of discharge in foreign country, 88 . . . 120 
 
 transfer of property under foreign, 139 187 
 
 international effect of, 144 . . . . . . . . 192 
 
 B ARE ARY STATES, relation of, to Turkey, 37 . ... 50 
 
 BAYS claimed as part of the maritime territory, 177 . . . . 237 
 
 BELGIUM, recognition of independence of , 27 e . . .37 
 
 debts of , when united to Holland, 29 a . . . . . 39
 
 INDEX. 717 
 
 BELGIUM continued. 
 
 interference in, 71 . . . . . . . .97 
 
 redemption of Scheldt tolls by, 196 a 257 
 
 neutrality of, 421 491 
 
 BERLIN MEMORANDUM, issuing of, 70 c 95 
 
 BERNARD, PROF. M., on the carriage of hostile persons, 504 b . 583 
 
 BESSARABIA, Russian frontier in 707 
 
 BIBESCO, PRINCESS, divorce of, 151 c 199 
 
 BIDWELL, AUSTIN, extradition of, 116b 158 
 
 BIRTH, effect of , in various States, 82 b 113 
 
 BLACK SEA, navigation of, 182 244 
 
 blockade of , by Turkey, 513 b 597 
 
 treaties relating to 705 
 
 BLOCKADE, breach of, forbidden, 509 592 
 
 legal aspect of breach of, 510 a 594 
 
 distinguished from siege, 510 b 594 
 
 extent of, 510 c 595 
 
 what amounts to violation of, 511 . . . . . 595 
 
 temporary interruption of, 513 . . . . . 596 
 
 efficiency of, 51 3 a 596 
 
 of Black Sea by Turkey, 513 b 597 
 
 knowledge necessary to constitute breach, 514 . . . 597 
 
 constructive knowledge of, 515 . . . . . 598 
 
 simple and public, 515 a 599 
 
 notice of, by treaty, 516 600 
 
 force maintaining, driven off by hostile attack, 517 . . 601 
 
 when new notice is necessary, 518 602 
 
 some act of violation necessary to constitute a breach, 519 . 602 
 
 intent to violate, 51 9 a 604 
 
 justifiable breach of, 519 b '. 604 
 
 condemnation of cargo, 519 c 605 
 
 violation of, by egress, 520 ........ 605 
 
 goods purchased in port under, 521 605 
 
 interior water navigation, 522 606 
 
 duration of offence of breach, 523 607 
 
 BOMBARDMENTS, how to be conducted, 411 f 478 
 
 BOOTY distinguished from prize, 359 a 430 
 
 belongs primarily to the Crown, 359 b 430 
 
 joint capture of , 384 b 453 
 
 BOSPHORUS, navigation of, 182 244 
 
 treaties relating to 710 
 
 BRAZIL, reprisals against, 293 b 352 
 
 BRITISH recognition of the Confederate States, 27 c . . .36 
 
 subjects in America during the civil war, 151 P . . . . 209 
 
 (Irishmen) conspiring against England, 151 . 208 
 
 vessels, seized by Germany in the Seine, 293 c 353 
 
 subjects, testamentary domicile of , abroad, 83 b . . . . 116 
 
 natural born subjects, who are, 151 J 206 
 
 seamen, impressment of, from foreign vessels, 107 . . . 145 
 
 offences by, abroad, 113 a 155 
 
 ships, who may own, 340 b 402 
 
 BROWN, JOHN, case of, 103 c 139 
 
 BRUSSELS CONFERENCE, rules adopted at, 411 b 476 
 
 BUNCH, case of Consul, 249 b 305 
 
 CAGLIARI, THE, case of, 124 c 169 
 
 CAPACITY OF PERSONS, laws regulating, 84 . . , .117
 
 718 INDEX. 
 
 PAGE 
 
 CAPITULATIONS, between belligerents, 254 310 
 
 for surrender, 405 469 
 
 discussion of, 411m 482 
 
 CAPTORS, when not commissioned, 357 428 
 
 duties of, 359 c 431 
 
 destruction of prizes by, 359 d 432 
 
 jurisdiction of courts of the, 388 454 
 
 responsibility of government for their acts when commissioned, 
 
 390 456 
 
 ransom of property by, 411 474 
 
 CAPTURE of enemy's private property in war, 346 . . . 409 
 
 of cotton from the Confederates, 346 b 411 
 
 overrides all liens, 355 d 427 
 
 by non-commissioned captors, 357 ...... 428 
 
 validity of, how determined, 385 453 
 
 in neutral waters, 428 497 
 
 restitution for, 431 500 
 
 CARGO, condemnation of, for breach of blockade, 519 c . . .605 
 
 CARRIAGE of hostile persons in neutral ships, 504 b . . . . 583 
 
 CARTELS, a species of treaty, 254 310 
 
 CASTLEREAGH, LORD, despatch on works of art in the Louvre, 353 422 
 
 CAUDINE FORKS, convention of the, 406 469 
 
 CERTIFICATE of naturalisation in England 635 
 
 CESSION of territory, effect of, on public debts, 30 a . . . . 40 
 
 CHESAPEAKE, THE, capture of, 428 a 498 
 
 CHINA, consular treaty with United States, 110 152 
 
 consular jurisdiction in, 110 a 153 
 
 CHOICE, domicile of, 151 C 201 
 
 CITIZENS of the United States, who are, 151 L . . . .206 
 
 CIVIL WAR, as it affects foreign States, 23 32 
 
 rights of parties to, 23 32 
 
 righf s of legation during, 209 274 
 
 parties to, 296 a 354 
 
 is never declared, 297 a 355 
 
 in America, position of the Confederates, 296 a ... 354 
 
 martial law during, 346 f 415 
 
 reception of cruisers in British ports, 434 c . . 505 
 
 CLOSTER SEVEN, convention of, 407 470 
 
 COALS, as contraband, 501 g 579 
 
 COAST, extent of the term, 178 239 
 
 COCKBURN, Sir A., opinion of, as to extent of maritime jurisdiction, 
 
 177 b 238 
 
 as to authority of text writers, 15 a 25 
 
 as to immunities of ships of war, 103 e 140 
 
 COLONIAL TRADE, rules as to, during war, 508 . . . . 588 
 
 COMBATANTS, who are recognised as, 411 d 477 
 
 COMITY, as to foreign laws,. 79 107 
 
 COMPOSITIVE STATE, definition of, 46 57 
 
 CONFEDERATE STATES, de facto government of, 21 a . . . 30 
 
 recognition of as belligerents, 27 c 36 
 
 diplomatic agents taken from the Trent, 109 a . . . . 150 
 
 cruisers of the, 124 a 169 
 
 intercourse with foreign States, 296 a 354
 
 INDEX. 719 
 
 CONFEDERATE STATES continued. 
 
 recognition of, by the United States, 296 a .... 354 
 
 confiscation of private debts by, 308 a 368 
 
 ships fitted out in England for, 439 t 523 
 
 CONFISCATION of enemy's property on the outbreak of war, 298 . 355 
 
 of droits of Admiralty, 302 300 
 
 of debts during war, 308 a 368 
 
 of private property on land during war, 346 a . . . . 411 
 
 CONFLICT OF LAWS, principles for settling, 78 . . . .106 
 
 maxims of Huberus, 80 108 
 
 contracts made according to lex loci, 80 . . . .108 
 
 rules as to real property, 81 109 
 
 as to personal property, 83 . . . . . .114 
 
 validity of contracts, 90 121 
 
 as to foreign marriages, 92 122 
 
 obligation of a contract, 143 191 
 
 CONQUEST, as affecting the identity of a State, 24 . . . .33 
 
 by internal revolution. 31 40 
 
 a title to State property, 165 221 
 
 distinguished from military occupation, 346 c . . . 412 
 
 CONSTITUTION of a State, effect of change in, 28 . . . . 38 
 
 of Austria-Hungary, 41 a 54 
 
 of the United States, 52 71 
 
 of Switzerland, 57 74 
 
 of former Germanic Confederation, 47 . . . .57 
 
 of the German Empire, 51 b 70 
 
 CONSULS, jurisdiction of, 110 151 
 
 in Eastern countries, 110 152 
 
 treaty as to, between United States and China, 110 . . . 152 
 
 diplomatic position of, 216 279 
 
 have not the same privileges as diplomatic officers, 249 . . 304 
 
 condemnation of prizes by, 389 455 
 
 CONTINUOUS VOYAGES, doctrine of, 508 a 589 
 
 difference of carriage by land and by sea, 508 c . . . . 591 
 
 CONTRABAND OF WAR, warlike instruments always are, 476 . 557 
 
 classification of, by Grotius, 477 558 
 
 opinion of Vattel, 478 558 
 
 opinion of Bynkershoek, 479 559 
 
 naval stores as, 480 560 
 
 articles of promiscuous use when, 489 . . . . . 567 
 
 provisions when, 490 567 
 
 Anglo-American treaty of, 1794, 492 569 
 
 British order of 1795, as to provisions, 493 . . . . 569 
 
 general principles applicable to, 498 573 
 
 condemnation of goods as, 501 a ...... 57;> 
 
 goods always, in England, 501 a 575 
 
 goods conditionally, 501 a 575 
 
 classification of, by the Supreme Court, 501b . . ..577 
 
 ulterior destination of, 501 c 577 
 
 trade in, no breach of neutrality, 501 e 578 
 
 ships, 501 f 579 
 
 coals and machinery, 501 g 579 
 
 enemy's despatches, 502 579 
 
 fraudulent carriage of despatches, 503 580 
 
 penalty for carrying, 505 584 
 
 diplomatic despatches, .504 . . . . ' . . . . 581 
 
 ship must be taken in the act, 506 585 
 
 American rule as to, H07 585 
 
 principle of Continuous voyages applied to, 508 b . . . 5i;0
 
 720 INDEX. 
 
 PAGE 
 
 CONTRACTS, when governed by law of the place, where made, 90 . 121 
 
 execution of, abroad, 93 123 
 
 proceedings to enforce, how regulated, 94 125 
 
 rule of decision, 143 191 
 
 obligation of, 145 194 
 
 form of, 146 194 
 
 with the enemy prohibited, 317 379 
 
 CONVENTION, distinguished from a treaty, 268 . . . 321 
 
 of the Caudine Forks, 406 469 
 
 of Closter Seven, 407 470 
 
 CONVOY, search of ships under, 525 607 
 
 armed neutrality of 1800, 527 610 
 
 forcible resistance by enemy master, 528 611 
 
 of neutral ships by enemy vessel, 530 613 
 
 captures under Danish ordinance of 1810, 531 . . . 614 
 
 COSTELLO, case of, 151 . 209 
 
 COURIERS of ambassadors, their privileges, 243 300 
 
 COURTS, municipal, distinguished from prize, 392 .... 457 
 
 CRACOW, former independence of, 34 44 
 
 former neutrality of, 422 492 
 
 CREDENCE, letters of, 217 . 279 
 
 CREOLE, THE, case of, 103 h 141 
 
 CRIMEAN WAR, declaration of, 297 a . . . . . . 355 
 
 object of, 70 a 95 
 
 trade between the parties during, 304 a 366 
 
 relaxation of rules as to trade, 315 a 377 
 
 Ionian Islands not a party to, 35 a 47 
 
 CRIMES, deemed local by some systems of law, 113. . . .164 
 
 committed within the three-mile belt of sea, 177 a . . . 237 
 
 by British subjects abroad, 113 a 155 
 
 creating a liability to extradition. (See Extradition.) 
 
 CRIMINAL SENTENCE, exterritorial effect of, 121 . . . . 166 
 
 CROWN, rights of, to booty and prize, 359 b ..... 430 
 
 CRUISERS, commissioned, piracy by, 123 167 
 
 responsibility of their government for their acts, 390 . . . 456 
 
 belligerent, admission of into neutral ports, 434 . . 504 
 
 CUBA, hostile expeditions against, in United States, 439 j . . . 517 
 
 CUSTOMS LAWS, jurisdiction claimed for, 179 a . . .241 
 
 DANUBE, navigation of the, 197 a 259 
 
 DARDANELLES, rights of Turkey over, 182 244 
 
 navigation of, 191 255 
 
 treaties relating to 710 
 
 DEBTS, due to an enemy, 305. (See Public Debts.) . . . . 366 
 
 DECEASED WIFE'S SISTER, marriage of, 93 a . . . . 124 
 
 DECLARATION of war, not always issued, 297 . . . . 354 
 
 of war, in case of civil war, 297 a 
 
 as to the inviolability of treaties 
 
 of Paris, as to enemy, goods under neutral flag, 355 a 
 as to privateering, 358 a 
 as to free ships, free goods, 475 a 
 
 as to blockades, 513 a 
 
 of St. Petersburg, as to explosive bullets, 343 c 
 
 355 
 712 
 425 
 429 
 557 
 596 
 407 
 
 DE FACTO government, 21 a 30 
 
 rights of, as to property, 30 . . . . . . . . 40
 
 INDEX. 721 
 
 PAQB 
 
 DENMARK, sovereignty of, over the Sound, 183 . . . 246 
 
 abolition of Sound dues by, 184 a 247 
 
 ordinance of, sequestrating debts due to British subjects, 308 367 
 
 indemnity from, to United States, 397 464 
 
 ordinance of 1810, as to convoy, 531 614 
 
 DESERTERS, extradition of, 120 164 
 
 treatment of in war, 344 a 408 
 
 DESPATCHES of the enemy, carriage of, 502 579 
 
 diplomatic, not contraband, 504 581 
 
 DETRACTION, DROIT DE, 82 112 
 
 DIPLOMATIC, usage of the alternat, 155 215 
 
 history, 289 346 
 
 language, 156 216 
 
 precedence, 214 277 
 
 letters of credence, 217 279 
 
 etiquette, 223 281 
 
 agents of the confederate States taken out of The Trent, 109 b 150 
 
 intercourse with rebels, 209 a 274 
 
 despatches not contraband, 504 581 
 
 DISCOVERY, as to title to State property, 165 221 
 
 DIVORCE foreign, validity of, 151 197 
 
 when recognised in England, 151 a . . . 198 
 
 domicile necessary for, 151b 198 
 
 DOMAIN public, effect of change of government on, 31 . . . 40 
 
 alienation of, 31 41 
 
 conquest of, 346 410 
 
 distinguished from national character, 151 A . . . . 200 
 
 definitions of, 151 B 201 
 
 of origin and of choice, 151 C 202 
 
 DOMICILE, law of, regulates universal successions only, 83 a . 115 
 
 testamentary, of British subjects, 83 b 116 
 
 matrimonial, 87 a 119 
 
 law of, regulates capacity to marry, 93 a 123 
 
 necessary to grant divorce, 151 b 198 
 
 change of, 151 E 203 
 
 intention to change, 151 F 204 
 
 change of, as to wills, 83 a 115 
 
 conferring a limited national character in time of war, 320 . 382 
 
 distinguished from allegiance, 328 388 
 
 effects of, abroad. 329 390 
 
 renunciation of, 330 390 
 
 election to change not allowed, 332 393 
 
 DOMINION OF THE SEA, controversy respecting, 186 . . . 249 
 
 DROIT, d'aubaine. 82 Ill 
 
 d'angarie, 293 c . 352 
 
 de detraction, 82 112 
 
 DUE DILIGENCE, in the observance of neutrality, 439 bb . . . 526 
 
 EAST INDIA COMPANY, former powers of, 17 26 
 
 EASTERN QUESTION, statement of , 70 a 94 
 
 EGYPT, relation of, to Turkey, 36 49 
 
 ELBE, navigation of the, 197 - . . . 258 
 
 EMBARGO before declaration of war, 293 351 
 
 EMINENT DOMAIN, right of, 163 220 
 
 3 A
 
 722 INDEX. 
 
 PAftE 
 
 EMPEROR, title of, does not confer pre-eminence, 159. . . . 217 
 
 ENEMY, property of, in the country at the outbreak of war, 298 . 355 
 
 discussion on this point as to the war of 1812, 303 . . . 360 
 
 debts due to the, 305 366 
 
 trade with. (See Trade.') 
 
 quitting country of, on the outbreak of war, 326 . . . 387 
 
 house of trade in country of, 334 396 
 
 produce of his territory deemed hostile, 336 . . . . 396 
 
 rights of war against, 342 404 
 
 rights against the person of the, 343 404 
 
 private property of, how far liable to capture, 346 . . . 409 
 
 ravaging territory of, 347 415 
 
 property of, under neutral flag, 355 a 425 
 
 goods, what are, 355 c 426 
 
 recapture of ships from. 367 438 
 
 recapture of ships of allies from, 368 439 
 
 means of injuring the, 411 e 478 
 
 goods of the, under false papers, 473 555 
 
 master, forcible resistance by, 528 . . . . . .611 
 
 commercial intercourse with the, 315 b . . . . 377 
 
 trade with, during Crimean war, 315 a 377 
 
 debts between, 315 b 378 
 
 contracts with neutrals, 315 c 378 
 
 good faith towards, 399 466 
 
 ENEMY SHIPS ENEMY GOODS. (See Free Ships Free Goods.) 
 
 ENLISTING troops for foreign State, in America, 439 h . . . 516 
 
 illegally in England 662 
 
 ENLISTMENT ACT. (See Foreign Enlistment Act.) 
 
 EQUALITY of States, rights of, 152 213 
 
 ENVOY distinguished from an ambassador, 214 277 
 
 EXEQUATUR, withdrawal of consul's, 249 304 
 
 EXPATRIATION of British subjects, 151J 205 
 
 of American citizens, 151K. . . . . . . 206 
 
 what amounts to, 151 M 207 
 
 procedure for, by British subjects 634 
 
 EXPLOSIVE BULLETS, prohibited in war, 343 c . . . . 407 
 
 EXTERRITORIAL, effect of, municipal laws, 84 . . . .117 
 
 of criminal sentences, 121 166 
 
 privilege of ambassador's house, 227 287 
 
 rights of an ambassador, 224 281 
 
 EXTERRITORIALITY, doctrine of, as to ships, 103 b . . .139 
 
 opinion of Cockburn, C. J., as to, 103 e 140 
 
 of an ambassador, 224 a 282 
 
 of an ambassador's house, 225 a . , , . . . . 283 
 
 EXTRADITION, opinions of jurists as to, 115 . . . . . 156 
 
 obligation of, 116 a 157 
 
 under the United States constitution, 116 . . . . 157 
 
 practice of England and the United States, 116 b . . . 157 
 
 Ashburton treaty, 117 160 
 
 case of Arguelles, 116 c 158 
 
 case of Carl Vogt, 116 d 159 
 
 treaty between France and America, 118 163 
 
 practice of France, 116 e . 159 
 
 what criminals are subject to, 116 f . . . 159 
 
 of subjects, 120 a 165 
 
 of deserters, 120 . . . :.., : 164 
 
 of political refugees, 116g . . . . . . .160
 
 INDEX. 723 
 
 EXTRADITION continued. 
 
 trial of persons surrendered under Ashburton treaty, 117 b . 162 
 
 Acts, English 645 
 
 treaties, English, now in force 660 
 
 Acts, American ' 660 
 
 treaties, American, now in force 662 
 
 in British possessions 650 
 
 FEDERAL union of States, 44 57 
 
 FENIAN BROTHERHOOD, origin of, 439 1 517 
 
 FISHERIES, treaties between England and the United States, 180 . 242 
 
 interpretation of these treaties. 269 323 
 
 general rights of States to, 180 241 
 
 of North America, now regulated by treaty of Washington . . 696 
 
 FLAG of truce, use of, 4111 481 
 
 determines national character of ship, 340 401 
 
 case where it was held not conclusive, 340 a . . 401 
 
 FLORIDA, THE, capture of, at Bahia, 428 b 499 
 
 facts relating to, 439 s 522 
 
 FOREIGN sovereigns, suits against, 101 c 135 
 
 jurisdiction. (See Jurisdiction.) 
 
 judgment, conclusiveness of, 138 a 187 
 
 divorce. 151 (See Divorce) 197 
 
 ambassadors in England, 225 c 284 
 
 laws, obligation to observe, 79 107 
 
 marriages, validity of, 92 122 
 
 army or fleet, what laws it is subject to, 95 125 
 
 FOREIGN ENLISTMENT ACTS in the United States, 437 . . 508 
 
 in England, 438 509 
 
 events which led to the American Act, 439 a . . . .511 
 
 cases decided on it, 439 b 512 
 
 what constituted an offence under it, 439 e . . . 614 
 
 observance of in England, 439 n 419 
 
 passing of English Act of 1870, 439 w 523 
 
 English Act 662 
 
 American Act 673 
 
 FRANCE, law of, as to foreign marriages, 92 123 
 
 law of, as to exemption of private vessels from the local laws, 
 
 102 136 
 
 law of, as to foreigners in, 141 189 
 
 as to foreign judgments, 150 ..... l!)6 
 
 restoration of works of art taken by Napoleon I., 352 . . . 422 
 treaty with United States, as to exclusive admission of her ships 
 
 of war, 425 495 
 
 occupation of Rome by, 76 b 104 
 
 intervention of, in Mexico, 76 a 103 
 
 extradition in, 1 1 6 e 159 
 
 military service in, 151 S 212 
 
 FREE SHIPS FEEE GOODS, maxims of, 445 .... 530 
 
 history of the controversy as to, 446 . . . . . ' . 532 
 
 settlement of the question by the Declaration of Paris, 475 a . 557 
 
 GEOFFROY, case of. as to martial law, 346 g . ,. . . . 415 
 GENEVA ARBITRATION, facts relating to, 439o . . . .519 
 
 GENEVA CONVENTION, terms of, 343 b 405 
 
 further adoption of, 411 i 480 
 
 3x2
 
 724 INDEX. 
 
 PAGE 
 
 GERMANIC CONFEDERATION, former constitution of, 47 . . 57 
 
 GERMANY, projects for unity of, 51 a 69 
 
 the North German Confederation, 51 a 69 
 
 present empire of, 51 b 70 
 
 former empire of, 35 48 
 
 GHENT, TREATY OF, as to the American fisheries, 270 . . 324 
 
 GOODS of the enemy, what are, 355 c 426 
 
 effect of using false papers, 473 555 
 
 purchased in blockaded port, 521 605 
 
 GOVERNMENT, distinction between dejnre and de facto, 21 a . 30 
 
 GREECE, interference in favour of, 69 89 
 
 recognition of independence of , 27 e 37 
 
 accession of present king, 69 . . . . . 92 
 
 cession of Ionian Islands to, 35 b 47 
 
 reprisals against. 293 a 352 
 
 GUARANTY, treaties of, 73 98 
 
 effect of such treaties, 277 334 
 
 of neutrality, 423 .... .... 492 
 
 of integrity of Ottoman Empire by Treaty of Paris . . . 705 
 
 by England, Austria and France 711 
 
 HANOVER, former connection with England, 40 . . . . 53 
 
 HARBOURS, jurisdiction over, 177 237 
 
 HEFFTER. System of, 10 . . 14 
 
 HERTSLET, important works by, 289 a 348 
 
 HIGH SEAS, vessels on, subject to their own laws, 106 . . . Ii3 
 
 capture of private property on, 355 b 425 
 
 HOLLAND, alliance of, with England, 281 336 
 
 debts of, when united to Belgium, 29 a 39 
 
 separated from Belgium, 71 97 
 
 claims of, to mouths of the Rhine, 198 260 
 
 treaties for the security of, 421 491 
 
 HOLY ALLIANCE, account of, 64 82 
 
 HOMICIDE by a British subject abroad, triable in England, 113 a . 155 
 
 HOSTAGES for the execution of treaties, 286 344 
 
 HOSTILE expeditions in neutral territory, 436 507 
 
 HOUSE of an ambassador, inviolability of, 227 287 
 
 of trade in enemy's country, 334 396 
 
 HOVERING ACT, British, 179 . . 240 
 
 HUASCAR THE, case of, 124 e 172 
 
 HUBERUS, maxims of, as to conflict of laws, 80 108 
 
 HUNGARY, recognition of independance of, 27 f .... 38 
 
 IMMUNITY of neutral territory, 426 497 
 
 of ships of war in foreign ports, 96 . . . . . . 126 
 
 of sovereign in a foreign State. 95 125 
 
 IMPRESSMENT of seamen by England, 107 145 
 
 INDEPENDENCE, recognition of, by foreign States, 26 . . 34 
 
 when recognition may be accorded, 27 d 35 
 
 of Greece and Belgium, 27 e 37 
 
 of Texas and Hungary, 27 f - . .38 
 
 of Turkey, guaranty of 711
 
 INDEX. 725 
 
 PAGE 
 
 INDIANS in America, their xtntns, 38 51 
 
 treaties between them and the United States, 38 a . . . 53 
 INHERITANCE governed by law of the domicile, 83 . . .114 
 
 INNOCENT PASSAGE, right of, along rivers, 193 . . . . 256 
 
 INTEGRITY of Ottoman Empire, guaranty of 711 
 
 INTERFERENCE, right of, in other States, C3 79 
 
 INTERNATIONAL LAW, origin of, 1 1 
 
 definition of, 14 21 
 
 absence of sanction in, 1 1 
 
 distinguished from natural law, 4 3 
 
 utility, the basis of, 4 5 
 
 is derived from reason and usage, 6 8 
 
 distinction between public and private, 10 . . . .14 
 
 there is no universal, 11 16 
 
 use of the term, 12 18 
 
 extension of, to Oriental States, 13 20 
 
 sources of, 15 21 
 
 subjects of, 16 26 
 
 private, 77 . 104 
 
 INTERPRETATION of treaties, rules for, 287 a 345 
 
 of armistice or truce, 403 468 
 
 INTERVENTION, right of, 63 79 
 
 instances of , 63 81 
 
 legal aspect of, 63 a 80 
 
 policy of the United States as regards, 67 a . . .87 
 
 in Mexico, 76 a 103 
 
 INTESTACY, succession on, 136 185 
 
 INVIOLABILITY of treaties, declaration respecting . . . . 712 
 IONIAN ISLANDS, former constitution of, 35 . . . .45 
 
 cession of to Greece, 35 b 47 
 
 citizens, their relation to England during the Crimean war, 35 a 47 
 
 IRISH agitators in America, 151 208 
 
 hostile associations in America, 439 1 517 
 
 JAPAN, consular courts in, 110 a 153 
 
 JOINT CAPTURE of prize, 384 a 452 
 
 of booty, 384 b 453 
 
 JUDGMENT, foreign, conclusiveness of in personal action, 147 . . 195 
 
 collusiveness of, in rein, 138 . . 186 
 
 English law, 148 195 
 
 American law, 149 196 
 
 French law, 150 196 
 
 of Prize Court, conclusiveness of, 396 463 
 
 against absent parties, 142 . . . . . .190 
 
 JUDICIAL POWER in a State, 111 153 
 
 extent of, as to criminal offences, 113 154 
 
 as to property situated in the State, 134 184 
 
 in the United States, 54 72 
 
 JUMEAUX, LES, case of , 439 b 512 
 
 JURISDICTION of a State in its own territory, 84 . . . .117 
 
 over its vessels on the high seas, 106 143 
 
 over the sea washing the coast, 177 237 
 
 over ports and mouths of rivers, 188 252 
 
 over straits and sounds, 190 253
 
 726 INDEX. 
 
 JURISDICTION continued. 
 
 over British subjects in Eastern countries, 110 a . . . . 153 
 
 over crimes by British subjects committed abroad, 113 a . . 115 
 
 over torts committed abroad, 144 a 193 
 
 over the three-mile belt of open sea, 177 a . . . .237 
 
 for customs purposes, 179 a 241 
 
 of courts of captor's country, 388 454 
 
 of neutral State as to captures, 432 502 
 
 JUS, use of the term, 12 17 
 
 JUS GENTIUM, meaning of , 3 3 
 
 JUS POSTLIMINII, as to real property during war, 388 . . . 465 
 
 KHEDIVE of Egypt, international status of, 36 c 49 
 
 KING'S CHAMBERS, what is included in this, 179. . . .240 
 
 capture of prizes in, 431 500 
 
 KOZTA MAETIN, case of, 151 R 211 
 
 LANDS, tenure of, by aliens, 82 a 112 
 
 LAWRENCE, extradition of, 117 b 162 
 
 LAW OF NATIONS. (See International Lam.) 
 
 LEGATION, rights of, 206 272 
 
 to what States they belong. 208 273 
 
 LEGISLATION, powers of independent States as to, 77 . . , 105 
 
 exterritorial operation of, 84 117 
 
 LETTERS of credence, 217 279 
 
 of recall, 351 306 
 
 of marque, 291 360 
 
 LEX andjiws, use of the terms, 12 17 
 
 domicilii, what cases it governs, 83 114 
 
 fori, proceedings determined by, 94 125 
 
 loci contracts, when it governs, 90 121 
 
 loci rci sites governs real property, 81 109 
 
 LICENSE, to trade with the enemy, 341 402 
 
 for protection during war, 408 . . . . . . .471 
 
 for trade during war, 409 471 
 
 authority to grant, 410 472 
 
 vitiation of , 410 a 474 
 
 LOANS to belligerents by neutrals, 424 b 495 
 
 LOPEZ, expeditions of, against Cuba, 439 j 517 
 
 LOUVRE, restoration of works of art collected in the, 352 . . 422 
 
 MACHINERY as contraband of war, 501 g 579 
 
 MACKINTOSH, SIR J., on the intervention in Greece, 69 . .92 
 
 on the burning of Washington, 351 420 
 
 on the neutrality laws, 439 . 509 
 
 on martial law, 346 e 414 
 
 MAGNA CHARTA, on the treatment of foreign merchants during war, 
 
 301 359 
 
 MARITIME jurisdiction, extent of, beyond the shore, 177 . . . 237 
 
 coasts, extent of the term, 178 239 
 
 ceremonials, IfiO 217 
 
 jurisdiction over ports, mouths of rivers, &c., 188 . . 252 
 
 jurisdiction for customs purposes, 179 a . . * . . . 241 
 
 jurisdiction of a neutral State. 432 ... . 502
 
 INDEX. 727 
 
 PAGE 
 
 MARRIAGE, by what law regulated, 87 119 
 
 laws relating to the ceremony, 89 121 
 
 abroad, when valid at home, 92 122 
 
 capacity of parties to contract, how regulated, 93 a . . 123 
 
 polygamous, 93 b 124 
 
 clandestine, Scotch, 93 c 125 
 
 MARRIED WOMAN, nationality of British 636 
 
 MARTIAL LAW, definition of, 346 .1 413 
 
 circumstances justifying it, 346 e 418 
 
 during American civil war, 346 f 415 
 
 in France in 1832, 346 g 415 
 
 MATRIMONIAL DOMICILE, how determined, 87 a . . .119 
 
 MEDIATION to settle international disputes, 73 97 
 
 how effected, 288 345 
 
 treaties of, 73 98 
 
 proposed in American civil war, 73 a 99 
 
 conference for, between Russia and Turkey, 70 c . . . 95 
 
 provision for, in Treaty of Paris, 288 a 345 
 
 between the powers guaranteeing Turkey 706 
 
 MERCHANT VESSELS, crimes committed on board, when abroad, 
 
 102 136 
 
 on the high saas subject to their own laws, 106 . . . 143 
 
 when in foreign. ports, 103 g 141 
 
 are subject to right of search, 441 527 
 
 MERCHANTS residing in the East, national character of, 333 . . 395 
 
 MEXICO, intervention in the affairs of, 76 a 103 
 
 MILITARY occupation during war, 346 c 412 
 
 law, denned, 346 d 413 
 
 government, defined, 346 d 413 
 
 authority over hostile State, 411 c 476 
 
 power over individuals, 411 j 481 
 
 MILITARY SERVICE of British subjects in America during the civil 
 
 war, 151 P 209 
 
 Prussian laws of, 151 Q 210 
 
 French laws of, 151 S 212 
 
 MINISTERS, classification of, 211 (See Ambassador) . . . . 275 
 
 MIRANDA, expedition of, 439 i 516 
 
 MISSISSIPPI, navigation of the, 200 262 
 
 MOHAMMEDAN STATES recognise rights of legation, 13 . . 20 
 
 MOLDAVIA, a semi-sovereign State, 36. (See Rouniania) . . . 47 
 
 MONACO, a semi-sovereign State, 36 48 
 
 cession of part of, to France, 36 b 48 
 
 MONROE DOCTRINE, statement of, 67 87 
 
 MUNICIPAL law, whether to be enforced when in excess of inter- 
 national law, 439 y 624 
 
 law, force of in Prize Courts 398 a 465 
 
 Court, distinguished from Prize Court, 392 457 
 
 NAPLES, revolution of 1820, 65 . . . . . . .84 
 
 capture of The Cagliari by, 124 c 169 
 
 NARROW SEAS, British claim to, 181 243 
 
 NATION distinguished from State, 17 27
 
 728 INDEX, 
 
 PAGE 
 NATIONAL CHARACTER conferred by domicile in time of war, 
 
 320 382 
 
 the native character easily reverts, 324 384 
 
 of merchants in the east, 333 395 
 
 of ships, 340 401 
 
 distinguished from domicile, 151 A 200 
 
 acquisition of, 151 G 204 
 
 incidents of, 151 H 204 
 
 NATURAL BORN British subjects, who are, 151J . . . . 206 
 
 NATURAL LAW, definition of , 2 2 
 
 distinguished from international law, 4 3 
 
 opinion of, Hobbes and Puff endorf , 5 6 
 
 NATURALIZATION, rights of a State respecting, 85 . . . . 118 
 treaty between England and America, 151 N . , . .208 
 
 conditions of, in Germany, 151 Q 211 
 
 treaty between America and Germany, 151 Q . . . .211 
 
 Acts, English 633 
 
 Act, American ... ....... 643 
 
 certificate of, in England 635 
 
 re-admission to British 636 
 
 67idence of 638 
 
 supplementary treaty between England and America . . 642 
 
 of aliens in America 643 
 
 in British colonies 639 
 
 NAVAL FORCES allowed in the Black Sea 711 
 
 NAVAL PRIZE, British Act regulating 676 
 
 NAVAL STORES as contraband, 480 560 
 
 " judgment of Lord Stowell as to, 481 561 
 
 opinion of Sir L. Jenkins, 483 562 
 
 Anglo-French treaty, 484 563 
 
 England and the Baltic powers, 485 564 
 
 treaty of 1801 as to, 486 564 
 
 Anglo-Swedish treaty of, 1803, 487 565 
 
 when contraband independent of treaty, 488 .... 565 
 
 NAVIGATION, municipal laws of, how regarded by other States, 114 155 
 
 of the Black Sea, Bosphorus, and Dardanelles, 182 . . . 244 
 
 treaties relating to 706 
 
 of the Sound and Belts, 183 246 
 
 of rivers flowing through several States, 193 . .256 
 
 of the Scheldt, 196 257 
 
 of the Danube, 197 a 259 
 
 of the Rhine, 199 261 
 
 of the Mississippi, 200 . 262 
 
 of the St. Lawrence, 203 266 
 
 of the Suez Canal, 205 b 271 
 
 NEGOTIATION, rights of, of sovereign States, 252 . . . . 309 
 
 faculty of, how limited or modified by treaty, 252 . . . 309 
 
 NETHERLANDS. (See Holland.) 
 
 NEUTRAL, impartiality, in what it consists, 435 507 
 
 jurisdiction, extent of, on the coast, 432 502 
 
 limitation of, as to restoring prizes, 433 . . . 503 
 
 waters, captures made in, 428 497 
 
 vessels chased into, 429 499 
 
 violation of, to be complained of only by the neutral 
 
 State, 430 . 50 
 
 ports, prizes carried into, 387 454 
 
 right of entering, 434 .504
 
 INDEX. 729 
 
 PAGE 
 
 NE UTR AL continued. 
 
 territory, prisoners and wounded in, 411 o 482 
 
 hostilities in, 426 497 
 
 passage of armies through, 427 497 
 
 hostile expeditions formed in, 436 .... 507 
 
 condemnation of prizes, in, 389 455 
 
 vessels on the high seas, immunity of, 440 .... 527 
 
 goods, in enemy vessels, 442 528 
 
 in armed enemy vessels, 529 611 
 
 flag, covers enemy's goods, 355 a ...... 425 
 
 subjects, loans to belligerents by, 424 b 495 
 
 NEUTRALITY, definition of, 412 484 
 
 different species of, 413 485 
 
 perfect, 414 485 
 
 imperfect, 415 486 
 
 conventional or guaranteed, 423 492 
 
 modified by alliances, 424 494 
 
 qualified, by treaty to admit ships of war of one State, 425 . 495 
 
 must be impartial, 435 ........ 507 
 
 laws to preserve, 436 507 
 
 what amounted to a violation of, in America, 439 e . .514 
 
 observance of, by America, 439 i 516 
 
 laws of England, 439 m 519 
 
 of England during the American civil war, 439 o . . . 519 
 
 due diligence required in observance of, 439 bb . . . 526 
 
 contraband trade, no breach of, 501 e 578 
 
 NEUTRALIZATION of the Black Sea, 182 a 245 
 
 by treaty of Paris . . . 706 
 
 of the Danube, 197 a % . 259 
 
 of the Suez Canal, 205 b 271 
 
 of ambulances in war, 343 b 405 
 
 NEWTON, THE, case of, 103 137 
 
 NON-COMBATANTS, treatment of, in war, 345 .... 409 
 
 NOOTKA SOUND, dispute between England and Spain as to, 167 . 223 
 
 NORTH-WEST boundary, final settlement of, between England and 
 
 the United States, 176 a (See Oregon) .... 236 
 
 coast of America, dispute as to ownership of, 1G8 . . . 224 
 
 treaty between Russia and the United States as to, 169 . . 226 
 
 between England and Russia, as to, 170 . . . 226 
 
 OCCUPATION of territory during war, 346 c 412 
 
 as a title to territory, 161 220 
 
 OFFENCES committed on merchant ships in foreign ports, 102 . 136 
 
 OPINIONS of public law officers, 15 23 
 
 ORDINANCES, a source of international law, 15 . . . . 22 
 
 authority of, 15 c 25 
 
 ORIGIN, domicile of, 151 C 202 
 
 OREGON territory, claim of United States to, 172 . . . .231 
 
 claims of England to, 173 233 
 
 negotiation of 1827, 174 233 
 
 convention of 1818, 175 235 
 
 treaty of 1846, 176 236 
 
 ORETO, THE. (See The Florida.) 
 OTTOMAN EMPIRE. (See Turkey.) 
 
 PACIFICO, DON, case of , 293 a . . 352
 
 730 INDEX. 
 
 PAGE 
 PAPAL BULL of 1493, account of, 166 221 
 
 PARIS, treaty of. (See Treaty of Paris.) 
 
 declaration of. (See Declaration of Paris.) 
 
 PAROLE for prisoners of war, 411 h 480 
 
 PASSAGE of armies through neutral territory, 427 . . . . 497 
 
 PASSPORTS for ambassadors, 220 280 
 
 and safe conducts in time of war, 408 47 1 
 
 PEACE, effect of, on treaties, 276 333 
 
 power of making, 538 623 
 
 indemnity to individuals for public concession, 540. (See 
 
 Treaties of Peace) 624 
 
 PENALTY for carrying contraband, 505 584 
 
 for breach of blockade, 509 592 
 
 PERSON of the enemy, limit to rights of war against, 343 . . 404 
 PERSONAL union of two States, 40 . . . . . . .53 
 
 status laws respecting, 84 117 
 
 PETITION OF RIGHT under the Naval Prize Act . . . . 686 
 
 PIRACY under the law of nations, 122 166 
 
 triable everywhere, 124 168 
 
 by municipal law, 124 168 
 
 by commissioned cruisers, 123 ....... 167 
 
 ingredients of, 122 a 167 
 
 by insurgents or rebels, 124 a 169 
 
 PIRATES, recapture of ships from, 361 433 
 
 -when rebels are, 124 a 169 
 
 POLAND, union of to Russia, 43 55 
 
 POLITICAL REFUGEES, extradition of, 116 g . . . . 160 
 
 POLIZZA, once a semi-sovereign State, 36 48 
 
 POPE, ELECTION OF, veto of Austria, France, and Spain, in, 75 . 100 
 
 PORTE, OTTOMAN. (See Turkey.) 
 
 PORTS, admission of foreign ships of war into, 100. . . . 131 
 
 property carried into neutral, 387 454 
 
 are part of the territory of a State, 177 237 
 
 PORTUGAL, British interference in, 68 88 
 
 how affected by the Quadruple Alliance, 76 . . . 100 
 
 alliance of, with England, 284 340 
 
 POSTLIMINII, JUS, as to real property during war, 398 . . . 465 
 
 PRECEDENCE of States, 154 213 
 
 PRESCRIPTION, a title to the public property of a State, 164 . 220 
 
 as a claim to parts of the sea, 181 243 
 
 PRISONERS OF WAR, slaughter of, 343 . 405 
 
 exchange of, 344 407 
 
 who are not entitled to be, 344 a 408 
 
 treatment of, 411 h 479 
 
 PRIVATE INTERNATIONAL LAW, its objects, 77 . . .105 
 
 PRIVATE PROPERTY, capture of, in war, 346 409 
 
 of the enemy on land, 346 a 411 
 
 on land, treated differently to when it is at sea, 355 . . . 425 
 
 capture of, at sea, 355 b .425 
 
 debts, during war, 305 366 
 
 debts due to the enemy, 315 b 378 
 
 of a foreign sovereign, 101 b 135
 
 INDEX. 731 
 
 PAGE 
 
 PRIVATEERS, commissioning of, 358 428 
 
 abolition of, by Declaration of Paris, 358 a 429 
 
 fitted out in United States contrary to the neutrality laws, 43'J b 512 
 
 PRIZE, distinguished from booty, 359 a 430 
 
 rights of the Crown to, 359 b 430 
 
 joint capture of, 384 a 452 
 
 condemnation of, how determined, 385 453 
 
 carried into neutral port, 387 454 
 
 illegal, in British ports 666 
 
 Act, British naval 676 
 
 causes, procedure in 079 
 
 salvage 683 
 
 bounty 684 
 
 PRIZES, in foreign ports, how far exempt from local laws, 105 . 143 
 
 destruction of, at sea, 359 d 432 
 
 destruction of neutral, 359 e 432 
 
 condemnation of, by consul in neutral country, 389 . . . 455 . 
 
 captured in neutral waters, 428 ....... 497 
 
 carried into neutral ports, 434 d 605 
 
 fitted out as ships of war, 380 448 
 
 their reception in neutral ports, 434 f . . . 506 
 
 PRIZE COURT distinguished from Municipal Court, 392 . . . 457 
 
 collusiveness of decision, 39G ....... 463 
 
 force of municipal law in, 398 a . . . . . . . 465 
 
 in America, rule as to free ships free goods, 471 . . . 554 
 
 PROBATE of wills in England, 137 a 186 
 
 PROCEEDINGS IN REM, effect of, 134 184 
 
 rule of decision in, 135 . . . . . . . ' . 185 
 
 collusiveness of sentence, 138 186 
 
 against absent parties, 142 190 
 
 PROPERTY of a State, rights of, 101. (See Public Property) . . 220 
 
 of individuals captured in war. 346 409 
 
 title to, 359. ^See Private Property) . . 429 
 
 of the same owner, in different States, 77 . . . . 105 
 
 in a State, how regulated, 86 118 
 
 PROTECTORATE of England over the Ionian Islands, 35 . .45 
 
 of Turkey over Kouinania and Servia, 36 47 
 
 PROVISIONS as contraband of war, 488 5(15 
 
 British order of 1795, as to, 493. (See Naval Stores) . . . 569 
 PRUSSIA, discussion with United States as to privilege of an ambas- 
 sador's house, 228 288 
 
 Silesian loan case, 394 461 
 
 discussion with United States as to free ships free goods, 456 540 
 
 PUBLIC debts, how affected by a change of sovereign power, 30 . 39 
 
 effect of treaties on, 29 a 39 
 
 payment of by treaty, 30 a 40 
 
 during war, 308 a 368 
 
 domain, how affected by change of sovereign power, 31 . . 40 
 
 property of a State, 161 220 
 
 title to, by conquest and discovery, 165 . . . 221 
 ships. (See Ships of War.) 
 
 QUADRUPLE ALLIANCE, account of, 76 100 
 
 RANSOM of captured property, 411 474 
 
 British law of, 411 a 476
 
 732 INDEX. 
 
 PAGE 
 
 RATIFICATION of treaties, 256 311 
 
 RAVAGING territory during war, 347 415 
 
 of American towns by British forces, 348 . . . . 416 
 
 REAL PROPERTY governed by lex loci, 81 109 
 
 title to, how transferred in war, 398 465 
 
 REAL UNION of two States, 41 54 
 
 RECIPROCITY as to confiscating enemy's goods in the country, 301 359 
 
 as to recapture of ships of allies, 368 439 
 
 REBELS as pirates, 124 a 169 
 
 diplomatic intercourse with foreign States, 209 a ... 274 
 
 RECALL, letters of, 251 308 
 
 RECAPTURE, rules respecting, 360 433 
 
 from pirates, 361 433 
 
 of neutral property, 363 434 
 
 from an enemy, 367 438 
 
 laws of different countries as to, 371 443 
 
 by a non-commissioned vessel, 381 448 
 
 RECOGNITION of new States, 27 a 35 
 
 internal sovereignty does not depend on, 20 . . . . 29 
 
 of belligerency, 27 b 36 
 
 of independence, 27 35 
 
 when to be accorded, 27 d . . . .37 
 
 of Greece and Belgium, 27 e 37 
 
 of Texas and Hungary, 27 f 38 
 
 of the South American Republics, 27 d 37 
 
 REDRESS between nations by force, 290 349 
 
 REFORMATION, wars of, 63 81 
 
 REPAIRS to belligerent ships of war in neutral States, 434 b . . 505 
 
 REPRISALS, nature and effect of, 291 350 
 
 in the case of Don Pacifico, 293 a 352 
 
 against Brazil, 239 b 352 
 
 for unjust sentence of foreign court, 391 456 
 
 on ambassador sent to an enemy, 318 380 
 
 on persons domiciled in the country, 318 .... 380 
 
 REQUISITIONS during war, 411 k 481 
 
 RESCUE. (See Recapture.) 
 
 RETALIATION, vindictive and amicable, 290 349 
 
 REVENUE LAWS not enforced by other States, 91 . . . . 122 
 
 RHINE, THE, navigation of, 198 259 
 
 RIVERS, rights of navigating, 192 256 
 
 use of their banks, 194 256 
 
 rules of Treaty of Vienna respecting, 197 258 
 
 ROME, occupation of, by France, 76 b 104 
 
 ROMILLY, SIR S., views of, as to works of art in the Louvre, 354 . 424 
 
 ROUMANIA formed by the union of Moldavia and Wallachia, 36 a . 48 
 
 end of protectorate of Russia over, 36 a 47 
 
 relation of, to Turkey, 36 a 47 
 
 cession of part of Bessarabia to . . . . . . 708 
 
 guaranty of privileges of 708 
 
 ROYAL HONOURS accorded to some States, 153 ... 213 
 
 RULE OF 1756. statement of , 508 588 
 
 applications of, in America, 508 b ..... . . . 590
 
 INDEX. 733 
 
 PAGB 
 
 RUSSIA, union of, to Poland, 43 55 
 
 dispute with United States as to north-west coast, 168 . . 224 
 
 treaty on the subject, 109 226 
 
 treaty with England on this subject, 170 226 
 
 cession of protectorate over Moldavia and Wallachia, 3G a . 47 
 
 last war with Tnrkey, 70 c 95 
 
 obstruction of the Danube by, 197 a 25!) 
 
 naval force of, in the Black Sea 711 
 
 frontier of, in Bessarabia 707 
 
 SAFE-CONDUCT issued during war, 408 471 
 
 SALUTES, maritime, 160 218 
 
 SALLY, THE, case of, 103 137 
 
 SALVAGE on recapture, 360 433 
 
 from pirates, 361 433 
 
 of neutral property, 363 . . . 434 
 
 when the ship might have been condemned, 366 . . . 436 
 
 actual rescue necessary, 382 449 
 
 rate of , 384 452 
 
 SAN MARINO, Republic of , 36 d 50 
 
 SAVAGES, employment of, in war, 344 a 409 
 
 SAVIGNY on the foundation of international law, 13 . . .19 
 
 SAVOY, neutrality of part of , 420 a 490 
 
 SCHELDT, navigation of the, 196 257 
 
 tolls, redemption of, 196 a 257 
 
 SCOTCH MARRIAGES, clandestine, 93 c 125 
 
 SEARCH, right of, 524 607 
 
 when there is a convoy, 525 607 
 
 immunity of public ships from, 441 . . . . . 527 
 
 English treaties as to slave-trade, 126 174 
 
 SELF-DEFENCE, right of, 62 78 
 
 SELF-PRESERVATION, right of, 61 77 
 
 SEMI-SOVEREIGN STATE defined, 34 44 
 
 does not enjoy royal honours, 156 ...... 214 
 
 SENTENCE, exterritorial operation of criminal, 121 . . . . 160 
 
 conclusiveness of foreign, in rem, 138 186 
 
 unjust, of foreign court, a ground for reprisals, 391 . . . 4o6 
 
 SERVIA, relation of, to Turkey, 36 a 48 
 
 war with Turkey, 70 c D5 
 
 rights of, by Treaty of Paris 709 
 
 SETTING FORTH as a vessel of war, what amounts to, 380 . . 448 
 
 SHIPS, national character of, 340 401 
 
 exceptional case, where the flag was not conclusive of the 
 
 nationality, 340 a 401 
 
 who may own British, 340 b 402 
 
 sale of, by belligerents, 355 c 427 
 
 SHIPS OF WAR, on what terms, admitted into foreign ports, 95 . 126 
 
 implied permission to enter foreign ports, 100 . . . . 131 
 have different privileges to merchant vessels, 101 . . .132 
 
 Spanish, seized in Holland, 101 . . . ' . . . 134 
 
 exemption of, does not justify acts of aggression, 104 . . 142 
 
 does not extend to their prizes, 105 143 
 
 on the high seas subject to their own laws, 106 . . . 143
 
 734 INDEX. 
 
 SHIPS OF WAR continued. 
 
 what amounts to setting forth as a, 380 448 
 
 French treaty as to their admission to American ports, 425 . 495 
 
 reception of, in neutral ports during war, 434 . . . . 504 
 
 liability of, to legal process, 101 a 135 
 
 slaves and criminals escaping to, 103 f 140 
 
 reception of fugitive slaves on, 133 b 184 
 
 sale of, by neutrals to belligerents, 439 z 525 
 
 not subject to right of search, 441 527 
 
 SHOEE, extent of the term, 178 239 
 
 SIEGES, how to be conducted, 411 f 478 
 
 SILESIAN LOAN, causes arising out of, 394 461 
 
 SLAVES, fugitive, escaping to ships of war, 103 f . . . .140 
 
 reception of fugitive, on ships of war, 133 b .... 184 
 
 ownership in, recognized by law of England, 132 a . . . 181 
 
 escaping to foreign countries, 133 a . . . . 183 
 
 in the United States, 133 c 184 
 
 SLAVE TRADE, how regarded by the law of nations, 125 . . . 173 
 
 treaties relating to, 126 174 
 
 decisions of courts, as to, 127 175 
 
 held to be not contrary to international law, 133 . . . 181 
 
 treaty between England and the United States, 126 a . . 174 
 
 SLIDELL AND MASON, the Confederate envoys, capture of, 109 b . 150 
 
 SOUND. THE, claim of Denmark to sovereignty over, 183 . . . 246 
 
 convention of 1841 respecting, 184 247 
 
 dues, abolition of, 184 a 247 
 
 SOURCES OF INTERNATIONAL LAW, 15 21 
 
 SOUTH AMERICAN REPUBLICS, recognition of their independ- 
 ence, 26 35 
 
 SOVEREIGN princes, the subjects of international law, 18 .28 
 
 when abroad, 95 125 
 
 personal exemption of, from arrest abroad, 97 128 
 
 titles of, 159 216 
 
 suits against foreign, 101 b . . 135 
 
 power, effects of change in, 28 38 
 
 and State, sometimes used synonymously, 19 . . . . 28 
 
 States, denned, 33 43 
 
 equality of, 33 44 
 
 rights of , 60 77 
 
 titles of, 159 216 
 
 SOVEREIGNTY defined, 20 28 
 
 internal and external, 20 28 
 
 how acquired, 21 , . .29 
 
 recognition of, of a new country, 26 34 
 
 SPAIN, war with her colonies, 67 86 
 
 complaints of, as regards American privateers, 439 i . . 516 
 
 dispute with England as to Nootka Sound, 167 . . . . 223 
 
 a party to the Quadruple Alliance, 76 100 
 
 SPIES, treatment of, in war, 344 a . . . . . . . 408 
 
 who are to be deemed, 411 g "- . . .479 
 
 SPONSIONS, ratification of, 255 . . . . . . . . . 310 
 
 ST. LAWRENCE, navigation of the, 203 . . . . ". .266 
 
 ST. PETERSBURG DECLARATION, terms of, 343 c . . . . 407
 
 INDEX. 735 
 
 PAGE 
 
 STATE, definition of, 17 26 
 
 what constitutes a, 17 27 
 
 acquisition of sovereignty by, 21 29 
 
 identity of, 22 31 
 
 effect of revolution in, 22 32 
 
 civil war in, 23 32 
 
 how affected by external violence, 24 33 
 
 tributary and vassal, 37 50 
 
 single or united, 39 53 
 
 distinguished from nation, 1 7 a 27 
 
 idea involved in the term, 17 a 27 
 
 meaning of, in the American Constitution, 17 b . . . . 27 
 
 extradition of its own subjects, 120 a ..... 165 
 
 pro' ection of its subjects abroad, 151 I 205 
 
 internal independence of, 72 97 
 
 choice of rulers by, 74 99 
 
 compacts restraining the independence of, 75 . . . .100 
 
 exclusive power of legislation, 77 . . . . . 105 
 
 power of, to regulate personal status, 84 117 
 
 extra-territorial effect of laws, of, 84 117 
 
 independence of, as to judicial power, 111 . . . .153 
 
 judicial powers over foreigners in its territory, 140 . . . 188 
 
 national proprietary rights, 161 220 
 
 rights of legation, 207 . . 272 
 
 STATIRA, THE, case of, 365 435 
 
 STATUS, personal, laws regulating, 84 117 
 
 STEPHEN, SIR JAMES, on the reception of fugitive slaves, 133 b . 184 
 
 STRAITS, jurisdiction over, 181 243 
 
 STRAITS CONVENTION" as to Dardanelles and Bosphorus . . . 710 
 
 SUBJECTS, protection of, when abroad, 151 I 205 
 
 extradition of, by their own country, 120 a 165 
 
 SUBSIDY, treaties of, 279 335 
 
 SUCCESSION, universal regulated, by law of domicile, 83 a . . , 115 
 
 on intestacy, 136 185 
 
 SUEZ CANAL, international position of, 205 b 271 
 
 SWITZERLAND, independence of its cantons recognised, 26 . .34 
 
 constitution of, 57 . . . . . . . . 74 
 
 changes in the constitution, 59 a 76 
 
 mediation respecting, 73 98 
 
 neutrality of, 416 486 
 
 position of, during wars of the French Revolution, 417 . . 487 
 
 alliance with other powers in 1815, 419 489 
 
 rights of, as to part of Savoy, 420 a 490 
 
 TERCEIRA, affair of, 439 n .... ... 519 
 
 TERRITORY of the enemy, ravaging during war, 347 . . . . 415 
 
 restoration of, after peace, 546 628 
 
 right of a sovereign over his own, 86 118 
 
 passage of belligerent through neutral, 427 .... 497 
 
 TEXAS, recognition of independence of, 27 f 38 
 
 debts of, when united to United States, 29 a . . . .39 
 
 TEXT WRITERS, a source of international law, 15 . . . 21 
 
 authority of, 15 a - . . .24 
 
 TITLE to property captured in war, 359 429 
 
 to real property, how transferred in war, 398 .... 465 
 
 TITLES of sovereign princes, 159 216
 
 736 INDEX. 
 
 PAGE 
 
 TOLEN, IGNACIO, case of, 151 8 212 
 
 TOUSIG, SIMON, case of, 151 E 211 
 
 TEADE WITH THE ENEMY, unlawfulness of, 309 . . . 369 
 
 reasons for forbidding it, 310 370 
 
 American decisions, 311 .372 
 
 quitting hostile territory at the commencement of war, 314 a . 375 
 
 strictness of the rules, 315 376 
 
 extent of the restrictions on, 315 b 377 
 
 with the common enemy, unlawful to allies, 316 . . . 379 
 
 contracts with the enemy prohibited, 817 379 
 
 domicile, during war, 319 381 
 
 house of trade in enemy's country, 334 396 
 
 license from the enemy, 341 402 
 
 TEADE LAWS, how regarded by other States, 114 . . . . 155 
 
 TEEASON, by British subjects abroad, triable in England, 113 a . 155 
 
 TEEATIES, a source of international law, 15 21 
 
 affecting sovereignty of a State, 25 33 
 
 how affected by a change of sovereign power, 28 . . .38 
 
 real and personal, 29 38 
 
 modification of right to contract, 252 309 
 
 form of, 253 309 
 
 when they require ratification, 254 310 
 
 refusal to ratify, 263 317 
 
 auxiliary legislative measures, 266 319 
 
 when they begin to bind, 264 318 
 
 freedom of consent, how far necessary, 267 . . . .321 
 
 transitory, when perpetual, 268 321 
 
 as to fisheries between the United States and England, 269 . 323 
 
 the operation of which ceases in certain cases, 275 . . . 332 
 
 revived on the renewal of peace, 276 333 
 
 of guaranty, 277 334 
 
 of alliance, 278 , 335 
 
 rules for interpretating, 287 344 
 
 commencement of their operation, 266 a 320 
 
 binding effect of, as to debts, 29 a 39 
 
 modifying neutrality, 424 494 
 
 inviolability of, declaration respecting 712 
 
 TEEATIES OF PEACE, power of making, 538 623 
 
 dismemberment of States by, 541 624 
 
 power to make in England, 542 625 
 
 effects of, 544 626 
 
 uti pos^idetis, the basis of , 545 627 
 
 restoration of territory by, 546 628 
 
 commencement of, 547 . 628 
 
 cessation of hostilities after, 548 629 
 
 restoration of things taken, 549 630 
 
 breach of, 550 . . . 631 
 
 TEEATY OF LONDON, 1871, as to the Black Sea, text of . . 712 
 
 TEE AT Y OF PAEIS, as to the Black Sea, 182 a 245 
 
 as to navigation of the Danube, 197 a 259 
 
 as to mediation, 288 a 345 
 
 close of Crimean war by, 70 b 95 
 
 principal clauses of . . . 705 
 
 TEEATY OF WASHINGTON, as to the Canadian fisheries, 180 a . 243 
 
 rules of international law in, 439 p 520 
 
 -text of ', 688 
 
 TBENT, THE, case of, 504 a . . 582 
 
 as regards right of search, 109 a 150 
 
 TEIBUNALS, decisions of, a source of international law, 15 . .23
 
 INDEX. 737 
 
 PAGE 
 
 TRIBUTARY STATES, instances of, 37 60 
 
 TROPPAU AND LAYBACH, congress of, 65 84 
 
 TRUCE. (See Armistice.) 
 
 flag of, 411 1 481 
 
 TURKEY, relation of, to Europe, 70 a 94 
 
 how affected by the treaty of Paris, 70 b 95 
 
 admission of, to European system 705 
 
 outbreak of last war with Russia, 70 c . . . . . 95 
 rights of, over Roumania and Servia, 3(5 a . . . .47 
 consular jurisdiction in. 110 a . . . . . . . 153 
 
 neutralization of the Black Sea, 182 a 245 
 
 guaranty of integrity of, by Treaty of Paris 705 
 
 by England, Austria, and France . 711 
 
 interferences in, 70 92 
 
 rights of, over the Black Sea and the Dardanelles, 182 . .244 
 principal treaties relating to "On 
 
 TUSCALOOSA, THE, reception of, at Simon's Bay, 434 f . . . 506 
 
 UNION of two States, personal and real, 40 
 
 incorporate, 42 
 
 federal. 44 
 
 UNITED STATES, acquisition of sovereignty by. 21 . . .30 
 
 acknowledgment of independence of, 26 35 
 
 constitution of , 52 71 
 
 executive power in, 54 72 
 
 treaty making, power in, 55 7)5 
 
 consular treaty with China, 110 152 
 
 extradition treaty with England, 117 . . . . . 160 
 
 treaty with Russia as to the north-west coast, 169 . . . 226 
 
 expiration of the treaty, 171 229 
 
 former claim to the Mississippi, 201 262 
 
 navigation of the St. Lawrence by, 203 26 
 
 legislation in, 54 a 73 
 
 policy of , towards European States, 67 a 87 
 
 practice as to extradition, 116 c 158 
 
 slavery in. 133 c 184 
 
 who are citizens of, 151 L 206 
 
 protection of citizens abroad, 151 M. . . . . . 207 
 
 expatriation in, 151 K 206 
 
 British subjects in, during the civil war, 151 P . . . 209 
 
 foreign enlistment Acts, 437 508 
 
 complaints of P]ngland during the civil war, 439 o . . . 519 
 
 treaty of Washington, 1871, 439 p 520 
 
 indirect claims at Geneva, 439 u 523 
 
 discussion with Prussia, as to free ships free goods. 456 . . 540 
 not a party to the Declaration of Paris, 358 a . . . .429 
 
 UNJUST SENTENCE of foreign court, 391 456 
 
 UTI POSSIDETIS, basis of treaties of peace, 545 .... 627 
 
 UTILITY, the basis of international law, 4 5 
 
 VATTEL, system of, 9 II 
 
 VENICE, claim of, to Adriatic Sea, 186 250 
 
 VERONA, Congress of, 66 , . . .85 
 
 VESSELS. (See ,Sfl>.) 
 
 VICE-ADMIRALTY prize courts 7S 
 
 VIENNA, TREATY OF, rules as to navigation of river* in. 197 . 2f>S 
 
 3 K
 
 738 INDEX. 
 
 VIOLATION of neutral waters by capture, 428 .... 497 
 
 complaint of this, only to come from the neutral State, 430 . 500 
 
 restitution of property for, 431 500 
 
 of blockade. 509 592 
 
 of blockade by egress, 520 605 
 
 V1HGINIUS, THE, case of, 124 d 171 
 
 VISITATION and search, right of, 524 (See Search) . . .607 
 
 VOGT, CARL, extradition of, 116 d 159 
 
 VOLUNTARY law of nations, 8 - . 11 
 
 WALLACHIA a semi-sovereign State, 36 (See Roumanla) . . 47 
 
 WAR, right of making, in whom vested, 294 353 
 
 public or solemn, 295 . .353 
 
 perfect or imperfect, 296 353 
 
 necessity of a declaration of, 297 ...... 354 
 
 enemy's property in the country at the commencement of, 298 355 
 
 rights of, against an enemy, 342 404 
 
 tendency of modern, 343 a 405 
 
 wounded in, care of, 343 b 405 
 
 exchange of prisoners of, 344 ....... 407 
 
 persons exempt from acts of, 345 ...... 409 
 
 capture of private property during. 346 409 
 
 military occupation during, 346 c 412 
 
 persons authorized to engage in, 356 427 
 
 title to property captured in, 359 429 
 
 quitting hostile territory on the outbreak of, 313 a . . . 375 
 
 extent of intercourse between enemies, 315 b . . . . 377 
 
 -who are recognized as belligerents, 411 d 477 
 
 cessation of hostilities, 548 629 
 
 (See also Civil War) 
 
 WARREN, case of, 151 209 
 
 WASHINGTON, burning of, by the British forces, 351 . . . 420 
 
 treaty of, as to the Canadian fisheries, 180 a . . . .243 
 
 as to violations of British neutrality, 439 p . . . 520 
 
 text of treaty of 688* 
 
 WILLS, how affected by change of domicile, 83 a , . . . 115 
 
 of British subjects made abroad, 83 c 116 
 
 WILSON, extradition of, 120 a 165 
 
 WOLF, system of, 7 . . . . . . . . - . .9 
 
 WOUNDED in war, convention relating to, 343 b ' . . . . 405 
 WRONGS abroad, jurisdiction over, in England, 144 a . . .193 
 
 ZOLLVEREIN, formation of the, 51 c 70 
 
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 into English. Part I. The Contract of Sale. (Book xviii.) 
 
 By SIR ROLAND KNYVET WILSON, Bart., of Lincoln's Inn, 
 
 Barrister-at-Law. Royal 8vo. 1876. Net 11. Is. 
 
 COLLISIONS. Lowndes' Admiralty Law of Collisions 
 
 at Sea. 8vo. 1867. 7s. Qd. 
 
 COLONIAL LAW. Clark's Colonial Law. A Summary of 
 
 Colonial Law and Practice of Appeals from the Plantations. 8vo. 
 
 1834. 1?. 4s. 
 
 Vanderlinden. Fide "Dutch Law." 
 
 COMMENTARIES ON THE LAWS OF ENGLAND. Bowyer. 
 
 Vide "Constitutional Law." 
 
 Broom and Hadley's Commentaries on the 
 
 Laws of England. By HERBERT BROOM, LL.D., of 
 
 the Inner Temple, Barrister-at-Law ; Reader in Common Law to 
 
 the Inns of Court ; Author of "A Selection of Legal Maxims," 
 
 &c. ; and EDWARD A. HADLEY, M.A., of Lincoln's Inn, 
 
 Barrister-at-Law ; late Fellow of Trinity Coll., Cambridge. 4 vols. 
 
 8vo. 1869. 3Z. 2s. 
 
 " Messrs. Broom and Hadley have been unsparing in their editorial labours. There 
 
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 COMMERCIAL LAW. Levi's International Commercial 
 Law. Being the Principles of Mercantile Law of the following 
 and other Countries viz. : England, Scotland, Ireland, British 
 India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Den- 
 mark, France, Germany, Greece, Hans Towns, Italy, Netherlands, 
 Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, 
 United States, and Wiirtemburg. By LEONE LEVI, Esq., P.S.A., 
 F.S.S., of Lincoln's Inn, Barrister-at-Law, Professor of the Principles 
 and Practice of Commerce at King's College, London, &c. Second 
 Edition. 2 vols. Royal 8vo. 1863. 11 15s. 
 
 Smith. Fide "Mercantile Law." 
 COMMON LAW. Braithwaite. Vide "Oaths." 
 Fisher. Vide " Digests." 
 
 Orders and Rules of the High Court of Justice, 
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 issued. 
 
 Prentice. Vide "Action." 
 
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 and Students. A Manual of Common Law, comprising the funda- 
 mental principles and the points most usually occurring in daily 
 life and practice. By JOSIAH W. SMITH, B.C.L., Q.C., 
 Judge of County Courts. Eighth Edition. 12mo. 1878. (Just 
 ready.) 14s. 
 
 " Admirably conceived and executed Eminently lucid and concise . . . 
 
 . . A pocket-book of pith and essence of common law." Leguleian. 
 
 " Mr. Josiah Smith possesses, in an eminent degree, that kind of logical skill which exhibits 
 
 itself in the simple arrangement, but exhaustive division, of wide and complicated subjects, 
 
 and is, moreover, gifted with the rare power of accurate condensation." Solicitors' Journal. 
 
 " To more advanced students, and to the practitioner, whether barrister or attorney, we 
 
 think the ' Manual of Common Law ' a most useful aud convenient companion 
 
 It is compiled with the scrupulous care and the ability which distinguish Mr. Smith's 
 previous works." Juri$t. 
 
 " Smith's Manuals of Common Law nnd Equity must be resorted to as the open sesames 
 to the learning requisite in the Final Examination of the Incorporated Law Society." From 
 Dr. ROLLIT'S Lecture, p. 11. 
 
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 COMMONS AND INCLOSURES. Chambers' Digest of the 
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 Including Public Parks and Recreation Grounds ; with Official 
 Documents, Bye-Laws, Statutes and Cases. By GEORGE F. 
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 Cooke on Inclosures. The Acts for facilitating the In- 
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 the Law of Rights of Commons, in reference to these Acts, &c., &c. 
 With Forms as settled by the Inclosure Commissioners. By G. 
 WINGROVE COOKE, Esq., Barrister-at-Law. Fourth Edition. 
 12mo. 1864. 16. 
 COMPANY LAW. Vide "Joint Stocks." 
 
 COMPANIES, LIABILITIES OF PROMOTERS OF Finlason's 
 Report of the Case of Twycross v. Grant, in the 
 Court of Common Pleas and the Court of Appeal, with the Judg- 
 ments, as revised by the Judges, and an Introduction and Notes, 
 containing notices of the previous cases on the subject. By W. F. 
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 1877. Net, 2s. 6d. 
 
 COMPANY PRECEDENTS. Palmer. Vide "Conveyancing." 
 CONSTITUTIONAL LAW. Bowyer's Commentaries on 
 the Constitutional Law of England. By Sir 
 GEO. BOWYER, D.C.L. Second Edition. Royal Svo. 1846 11. 2s. 
 CONTRACTS. Addison on Contracts. Being a Treatise on 
 the Law of Contracts. By C. G. ADDISON, Esq., Author of 
 the " Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one 
 of Her Majesty's Counsel, Recorder of Lincoln. Royal Svo. 
 1875. U 18s. 
 
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 Leake on Contracts. The Elements of the Law of Con- 
 tracts. Second Edition. By STEPHEN MARTIN LEAKE, 
 of the Middle Temple, Barrister-at-Law. (In the press.) 
 
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 Law and Equity, and with references to the Indian Contract Act, 
 and occasionally to American and Foreign Law. Second Edition. 
 By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at- 
 Law. (.In the press.) 
 The Lord Chief Justice In his judgment in Metropolitan Railway Company v. Brog* 
 ilen and others, said. "The Law is well put by Mr. Frederick Pollock in his 
 very able and learned work on Contracts." Tfte Times, February 19, 1877. 
 " He has succeeded in writing a book on Contracts which the working lawyer will find 
 as useful for reference as any of its predecessors, and which at the same time will give 
 tlie siudent what he will seek for in vain elsewhere, a complete rationale of the law." 
 Law Manazine and Review, August, 18T6. 
 
 "Mr. Pollock's work ought, in our opinion, to take a high place among treatises of its 
 class. The ' fusion of law and equity ' so far as that fusion is possible, is in his pages an 
 accomplished fact." Pall Mali Gazette, March 3, 1876. 
 
 " A work which, in our opinion, shows great ability, a discerning intellect, a compre- 
 hcnsive mind, and painstaking industry. The book ought to be a success. ' Law Journal, 
 
 "Thsra is no part of the work that does not please ns by the freshness of the style and 
 the ingenuity of the treatment. The author may be congratulated on having achieved a 
 marked success in a field where others before him have written well." Solicitor? Journal, 
 
 Al>nl Smith's Law of Contracts. By the late J. W. SMITH, 
 Esq., Author of "Leading Cases," &c. Sixth Edition. B. 
 VINCENT T. THOMPSON, Esq., Barrister-at-Law. Svo. 1874. 16s. 
 
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 CONVEYANCING.-Greenwood's Manual of Convey- 
 ancing. A Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing 
 in Solicitors' Offices. To which are added Concise Common Forms 
 and Precedents in Conveyancing ; Conditions of Sale, Conveyances, 
 and all other Assurances in constant use. Fifth Edition. By 
 H. N. CAPEL, B.A., LL.B., Solicitor. Demy 8vo. 1877. Ins. 
 "The information under these heads is just of that ordinary practical kind which H 
 learned from experience aud is not to be gathered from treatises. . . . A careful study 
 of these pages would probably arm a diligent clerk with as much useful knowledge as he 
 might otherwise take years of desultory questioning and observing to acquire." Solicitoii 
 Journal. 
 
 "The young solicitor will find this work almost invaluable, while ihe members of the 
 higher branch of the profession may refer to it with advantage. We have not met with 
 any book that furnishes so simple a guide to the management of business entrusted to 
 articled clerks." Sheffield Post. 
 
 Martin's Student's Conveyancer. A Manual on the 
 Principles of Modern Conveyancing, illustrated and enforced by a 
 Collection of Precedents, accompanied by detailed Remarks. Part I. 
 Purchase Deeds. By THOMAS FREDERIC MARTIN, Solicitor. 
 Demy 8vo. 1877. 5*. 6d. 
 
 " Wo hare no doubt that the student will flud in Mr. Martin's treatise a good guide to 
 the practical part of conveyancing." Law Times, June i3, 1877. 
 " It should be placed in the hands of every student." 
 
 Palmer's Company Precedents. Conveyancing and 
 
 other Forms and Precedents relating to Companies' incorporated 
 
 under the Companies' Acts, 1862 and 1867. Arranged as follows : 
 
 Agreements, Memoranda of Association, Articles of Association, 
 
 Resolutions, Notices, Certificates, Provisional Orders of Board of 
 
 Trade, Debentures, Reconstruction, Amalgamation, Petitions, Orders. 
 
 With Copious Notes. By FRANCIS BEAUFORT PALMER, of 
 
 the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1877. 1?. 5s. 
 
 " There had never, to our knowledge, been any attempt to collect and edit a body of 
 
 Forms and Precedents exc : usive]y relating to the formation, working and winding-up of 
 
 companies. This task Mr. Palmer has taken in hand, and we are glad to say with much 
 
 success .... 'Ihe information contained in the 650 pages of the volume is rendered 
 
 easily accessible by a good and full index. The author has evidently not been sparing of 
 
 labour, and the fruits ol his exertions are now before the legal profession in a work of great 
 
 practical utility." Law Magazine, February, 1878. 
 
 " To those concerned in getting up companies, the assistance given by Mr. Palmer 
 must be very valuable, because he does not confine himself to bare precedent*, but by 
 intelligent and learned commentary lights up, as it were, each step that he takes. The 
 volume beforeus is not, therefore a book of precedents merely, but, in a greater or less de- 
 gree, a treatise on certain portions of the Companies' Acts of 1862 and 1867. There is an 
 elaborate index, aud the work is one which must commend itself to the profession." 
 Law Times, June 9, 1877. 
 
 " The precedents are as a rule exceedingly well drafted, and adapted to companies for 
 almost every conceivable object. So especially are the forms of memoranda and articles 
 of association ; and these will be found extremely serviceable to the conveyancer. . . 
 All the notes have been elaborated with a thoroughly scientific knowledge of the 
 principles of company law, as well as with copious references to the cases substantiating 
 the principles. . . . We venture to predict that his uot< s will be found of great utility 
 iu guiding opinions on many complicated questions of law and practice. "~-Lau> Journal, 
 June 23, 1877. 
 
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 Dissertations on its Law and Practice. Eighth Edition. By 
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 Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs., 
 Barristers-at-Law. 2 vols. Royal 8vo. 1876. SI. 10s, 
 
 "Prideanx has become an indispensable part of the Conveyancer's library The 
 
 new editioii has been edited witl: a care and accuracy of which we can hardly speak too 
 highly." Solicitors' Journal, October 14, 1876. 
 
 " VVe really cn hardly imagine a conveyancer being required to prepare any instru- 
 ment which he will not find sketched out in the work under notice We may 
 
 also be allowed to add our tribute of praise to these Precedents for their conciseness, 
 perspicuity, precision, and perfection of drafting." Law Journal. September 23, 1876. 
 
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 CONVICTIONS. Paley on Summary Convictions. 
 Fifth Edition. By H. T. J. MACNAMAKA, Esq., Barrister-at- 
 Law. 8vo. 1866. II. Is. 
 
 Stone. Fide " Petty Sessions." 
 
 COPYRICHT.-Phillips' Law of Copyright. The Law of 
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 Barrister-at-Law. 8vo. 1863. 12*. 
 
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 CORONERS. Jervis on the Office and Duties of 
 Coroners. With Forms and Precedents, Third Edition. By 
 C. W. LOVESY, Esq., Puisne Judge, British Guiana. 12mo. 
 1866. 12*. 
 
 COSTS. Care w's Precedents of Bills of Costs, for 
 obtaining Grants of Probate and Letters of Administration in the 
 Principal Registry of the Court of Probate. 1869. 5s. 
 
 Morgan and Davey's Treatise on Costs in 
 Chancery. By GEORGE OSBORNE MORGAN, M.P., 
 one of Her Majesty's Counsel, late Stowell Fellow of University 
 College, Oxford, and Eldon Scholar ; and HORACE DAVEY, 
 M.A., one of Her Majesty's Counsel, late Fellow of University 
 College, Oxford, and Eldon Scholar. With an Appendix, containing 
 Forms and Precedents of Bills of Costs. 8vo. 1865. II. Is. 
 
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 the Judicature Acts. With Copious Index. By WILLIAM 
 MORRIS, Solicitor. 12mo. 1876. 45 
 
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 tion." Law Timet. 
 
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 SCOTT, Esq., Barrister-at-Law. Royal 12ino. 1876. 5*. Gd. 
 
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 Allowances and Court Fees, &c., &c. Second Edition. Royal 8vo. 
 
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 Third Edition. Post 8vo. 1867. 20*. 
 
 " The object of this work is to give the scale of costs allowed to Solicitors in relation 
 
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 10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 COUNTr COURTS The Consolidated County Court 
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 sometime Holder of the Studentships of the Four Inns of Court. 
 (In preparation.) 
 
 CRIMINAL LAW. Archbold's Pleading and Evidence 
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 Second Edition. Post 8vo. 1862. 16s. 
 
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 18T6. 
 
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 DECREES Seton. Vide " Equity." 
 
 DIARY Lawyer's Companion (The), Diary, and Law 
 Directory. For the use of the Legal Profession, Public Com. 
 panies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c. 
 PUBLISHED ANNUALLY. Thirty-second Issue for 1878. 
 
 The Work is 8vo. size, strongly bound in cloth, and published at the 
 following Prices : g. d. 
 
 1. Two days on a page, plain 50 
 
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 The Diary, printed on JOYNSON'S paper of superior quality, 
 
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 "The present issue contains all the information which could be looked for iu such a 
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 "The 'Lawyer's Companion' is, indeed, what it is called, for it combines everything 
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 DICTIONARY. Wharton's Law Lexicon. A Dictionary of 
 
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 in the several Departments of English Law ; including the various 
 
 Legal Terms used in Commercial Transactions. Together with an 
 
 Explanatory as well as Literal Translation of the Latin Maxims 
 
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 Sixth Edition. Enlarged and revised in accordance with the 
 
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 student it is almost indispensable." . [Continued. 
 
 ** A II standard Law Works are kept in Stock, in law calf and other bindings . 
 
 B 2 
 
 most convenient form and very completely. Wo may unhesitatingly 
 o our readers." Suliciiors Joumal, November 25, 1876.
 
 12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DICTIONARY. Wharton's Law 
 
 We have simply to notice that the same ability and accuracy mark the present 
 
 edition which were conspicuous in its predecessor. Mr. Will has done all that was ren- 
 dered necessary by the Judicature Acts, in the shape of incorporation and elimination, 
 and has brought the Statute Law down to the date of publication." Law Times, March 4, 
 
 1876. 
 
 " Wharton's perennial Law Lexicon has just been adapted to the new condition of the 
 Law, brought about by the Judicature Act. The task of revision has been ably per- 
 formed by Mr. Shiress Will." Saturday Review, April 15, 1876. 
 
 DIGESTS. Bedford. Fide " Examination Guides." 
 Chamber's Vide "Public Health." 
 
 Chitty's Equity Index. Chitty's Index to all the Reported 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords, 
 from the earliest period. Third Edition. By J. MACAULAY, 
 Esq., Barrister-at-Law. 4 vols. Royal 8vo. 1853. 71. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the House of Lords and Privy Council, and in the 
 Courts of Common Law, Divorce,. Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; 
 with References to the Statutes and Rules of Court. Founded on 
 the Analytical Digest by Harrison, and adapted to the present 
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 County Courts of Bristol and of Wells. Five large volumes, royal 
 8vo. 1870. 121. 12s. 
 
 (Continued Annually.) 
 
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 " The fact is, that we have already the best of all possible digests. I do not refer merely 
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 difficult to improve upon Mr. Fisher's 'Common Law Digest' I refer te the innumerable 
 te\t books of every branch of the law. What better digest of criminal law could we 
 possibly hope for than 'Kussellou Crimes,' and the current Koscoe and Archbold, to say 
 nothing of the title, 'Criminal Law,' in 'Fisher's Digeiit.'" Sir James Fitzjames Stephen, 
 Q.C.. in his Address to the Law Amendment Society ondodification in India and England, Session 
 872-3. 
 
 Leake. Vide "Real Property." 
 
 Notanda Digest in Law, Equity, Bankruptcy 
 
 Admiralty, Divorce, and Probate Cases. By 
 
 H. TUDOR BODDAM, of the Inner Temple, and HARRY 
 
 GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. The 
 
 NOTANDA DIGEST, from the commencement, October, 1862, to 
 
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 DISCOVERY. Hare's Treatise on the Discovery of 
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 1876. 
 
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 EQUITY, and Fide CHANCERY. 
 
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 JU DGM ENTS -Continued. 
 
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 JUDICATURE ACTS. Wilson's Judicature Acts, Rules 
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 PREFACE TO THE SECOND EDITION. 
 
 In the present edition, the general arrangement adopted in the former edition is pre- 
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 The several Acts, Bodies of Rules, Orders in Council, and other authoritative documents 
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 subsequent to the Act of 1875 are incorporated with those contained in the Schedule to 
 that Act. 
 
 All the more important decisions upon the construction of the Acts and Rules down to 
 the end of the Michaelmas Sitting*, 1877, will, I believe, be found noticed with some of 
 later date. 
 
 Many minor typographical changes have been made in this edition, which will, I hope, 
 be found to increase its convenience in use. Italic type has beeu used throughout the 
 book to indicate repealed matter. 
 
 All the Rules of Court, both those in the Schedule and those of later date, have been 
 issued without marginal notes. I have ventured to add short marginal notes to them. 
 
 I cannot too strongly express iny obligations to Mr. Biddle, of the Master of the Roll's 
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 revised by him ; and I have throughout received from him very valuable suggestions. lie 
 has also relieved me of much labour by revising and annotating the forms annnexed to 
 the rules, and in many other ways. 
 
 I wish particularly to notice the Table of Cases, which Mr. Biddle has prepared. The 
 course ordinarily adopted throughout the book is to cite each case with a reference to only 
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 The Law Reports are commonly cited where the case has appeared in that series. To 
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 The reconstruction of the Index, rendered necessary by the large amount of new 
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 Chancery Bar. 
 
 The Introduction which appeared in the former edition has been omitted in tliis. 
 That Introduction was intended to assist the reader to become acquainted with a system 
 then wholly new. The system is no longer new or unknown, so that there is not the same 
 necessity for such an introduction. The omission contributes to secure an object which 
 I have throughout had in view, the keeping down the bulk of the book. 
 
 Opinions of the Press on the First Edition : 
 
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 Greene. Vide "Roman Law." 
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 Voet. Vide "Civil Law." 
 
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 LAW LIST. Continued. 
 
 England, Conveyancers Practising in England under Certificates 
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 LAWYER'S COMPANION. Vide" Diary." 
 
 LEADING CASES. Haynes' Students' Leading Cases 
 in Constitutional Law, Common Law, Real Property 
 Law, Equity, Probate and Divorce, Bankruptcy, and Criminal Law. 
 By JOHN F. HAYNES, Solicitor. Author of "The Student's 
 Statutes." (In the press.) 
 
 LEGACIES. Roper's Treatise on the Law of Lega- 
 cies. -Fourth Edition. By H. H. WHITE. 2 vols. Royal 8vo. 
 1847. 3/. 3*. 
 
 LEXICON. Vide "Dictionary." 
 
 LICENSING. Lely and Foulkes' Licensing Acts, 
 1828, 1869, 1872, and 1874; Containing the Law of the 
 Sale of Liquors by Retail and the Management of Licensed Houses ; 
 with Notes to the Acts, a Summary of the Law, and an Appendix 
 of Forms. Second Edition. By J. M. LELY and W. D. I. 
 FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. 
 " Messrs. Lely and Foulkes's plan is to print in full the principal Acts, and to inter- 
 
 polate between the sections of each of these statutes all subsidiary enactments, distin- 
 
 gniBhlng them by brackets and marginal notes These notes are usu.illy 
 
 sensible and to the point and give evidence both of care and knowledge of the subject." 
 
 Solicitors' Journal. 
 
 LIEN. Cross' Treatise on the Law of Lien and 
 Stoppage in Transitu. 8vo. 1840. 15s. 
 
 LIGHTS Woolrych's Practical Treatise on the Law 
 Of Window Lights. Second Edition. 12mo. 1864. 6s. 
 
 LOCAL GOVERNMENT. -Fide "Public Health." 
 
 LUNACY. Elmer's Practice in Lunacy. The Practice in 
 Lunacy under Commissions and Inquisitions, with Notes of Cases 
 and Recent Decisions, the Statutes and General Orders, Forms and 
 Costs of Proceedings in Lunacy, an Index and Schedule of Cases. 
 Sixth Edition. By JOSEPH' ELMER, of the Office of the 
 Masters in Lunacy. 8vo. 1877. 21s. 
 
 MAGISTERIAL LAW. Burn. Vide " Justice of Peace." 
 Leeming and Cross. Vide " Quarter Sessions." 
 Paley. Vide "Convictions." 
 Pritchard. Vide " Quarter Sessions." 
 Stone. Vide " Petty Sessions." 
 
 MAINTENANCE AND CHAMPERTY. Tapp on Main- 
 tenance and Champerty. An Inquiry into the present 
 state of the Law of Maintenance and Champerty, principally as 
 affecting Contracts. By WM. JOHN TAPP, of Lincoln's Inn, Esq. , 
 Barrister-at-Law. 12mo. 1861. 4s. 6d. 
 
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 MANDAMUS. Tapping on Mandamus. The Law and 
 Practice of the High Prerogative Writ of Mandamus as it obtains 
 both in England and Ireland. Royal 8vo. 1848. 1?. Is, 
 
 MARINE INSURANCE Vide "Insurance." 
 
 MARTIAL LAW Finlason's Treatise on Martial Law, 
 as allowed by the Law of England in time of Rebellion ; with 
 Practical Illustrations drawn from the Official Documents in the 
 Jamaica Case, and the Evidence taken by the Royal Commission of 
 Enquiry, with Comments Constitutional and Legal. By W. F. 
 FINLASON, Esq., Bamster-at-Law. 8vo. 1866. 12s. 
 
 MERCANTILE LAW Boyd. Vide "Shipping." 
 Brooke. Fide "Notary." 
 Russell. Vide "Agency." 
 
 Smith's Mercantile Law. A Compendium of Mercantile 
 Law. By the late JOHN WILLIAM SMITH, Esq. Ninth 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 one of Her Majesty's Counsel. Royal 8vo. 1877. 11. 18*. 
 
 "Wo can safely say that, to the practising Solicitor, few books will be found more 
 useful than the ninth edition of ' Smith's Mercantile Law.' "Law Magazine, Nov. 1877- 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritime Law. With Notes. By O. D. TUDOR, 
 Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. 11.18s. 
 
 METROPOLIS BUILDING ACTS -Woolrych's Metropolis 
 Building Acts, together with such Clauses of the Metropolis 
 Management Acts, 1855 and 1862, and other Acts, as more par- 
 ticularly relate to the Buildings Acts, with Notes, Explanatory of 
 the Sections and of the Architectural Terms contained therein. 
 Second Edition. By NOEL H. PATERSON, M.A., of the Middle 
 Temple, Esq., Barrister-at-Law. 12mo. 1877. 8s. 6d. 
 
 MINES. Rogers' Law relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines. 
 Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Bar- 
 rister-at-Law. 8vo. 1876. 11. 11s. 6d. 
 "Most comprehensive and complete." Law Times, June 17, 187C. 
 
 "Although issued as a Second Edition, the work appears to have been almost entirely 
 re-written and very much improved. . . . The volume will prove invaluable as a 
 work of legal reference."?^ Mining Journal, May 13, 1876. 
 
 MORTGAGE. Coote's Treatise on the Law of Mort- 
 gage. Third Edition. Royal 8vo. 1850. Net, 11. 
 
 MORTMAIN. Rawlinson's Notes on the Mortmain 
 Acts ; shewing their operation on Gifts, Devises and Bequests for 
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 tion Suits in the Chancery Division of the High Court of Justice. 
 By JAMES RAWLINSON, Solicitor. Demy 8vo. 1877. Inter- 
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 MUNICIPAL ELECTIONS.- Vide "Ballot." 
 
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 NAVY. Thring's Criminal Law of the Navy, with an 
 
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 the Rules of Evidence, and an Appendix comprising the Naval 
 
 Discipline Act and Practical Forms. Second Edition. By 
 
 THEODORE THRING, of the Middle Temple, Barripter-at-Law, 
 
 late Commissioner of Bankruptcy at Liverpool, and C. E. GIFFORD, 
 
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 nected with the practical administration of the law have been classified and arranged by 
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 NISI PRIUS. Roscoe's Digest of the Law of Evidence 
 
 on the Trial of Actions at Nisi Prius. Thirteenth 
 
 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1875. 
 
 (Bound in one thick volume calf or circuit, 5s. 6d., or in two convenient vols. 
 
 calf or circuit, 10s. net, extra.) 
 
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 Selwyn's Abridgment of the Law of Nisi 
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 Judges of the Supreme Court of the Cape of Good Hope. 2 vols. 
 Royal 8vo. 1869. (Published at 21. 16s.) Net, IL 
 
 NOTANOA. Vide "Digests." 
 
 NOTARY. Brooke's Treatise on the Office and Prac- 
 tice of a Notary of England. With a full collection of 
 Precedents. Fourth Edition. By LEONE LEVI, Esq., P.S.A., 
 . of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 11. 4s. 
 
 NUISANCES.-FitzGerald.-Fwfc "Public Health." 
 OATHS. Braithwaite's Oaths in the Supreme Court 
 of Judicature. A Manual for the use of Commissioners to 
 Administer Oaths in the Supreme Court of Judicature in England. 
 Part I. containing practical information respecting their Appoint- 
 ment, Designation, Jurisdiction, and Powers ; Part II. comprising a 
 collection of officially recognised Forms of Jurats and Oaths, with 
 Explanatory Observations. By T. W. BRAITHWAITE, of the 
 Record and Writ Clerks' Office. Fcap. Svo. 1876. 4s. M. 
 
 "Specially useful to Commissioners." Law Magazine, February, 1877. 
 ' Tho work will, we doubt not, become the recognized guide of commissioners to ad- 
 minister oaths." Solicitors' Journal, May 6, 1876. 
 
 PARTNERSHIP. Pollock's Digest of the Law of Part- 
 nership. By FREDERICK POLLOCK, of Lincoln's Inn, 
 Esq., Barrister-at-Law. Author of " Principles of Contract-at-Law 
 and in Equity." Demy Svo. 1877. 8s. Qd. 
 
 %* The object of this work is to give the substance of the Law 
 of Partnership (excluding Companies) in a concise and definite form. 
 "Of the execution of the work, we can speak in terms of the highest praise. The 
 language is simple, concise, and clear ; and the general propositions may bear comparison 
 with those of Sir James Stephen." Law Magazine, February, 1878. 
 
 " Mr. Pollock's work appears eminently satisfactory . . . the book is praiseworthy 
 in design, scholarly and complete in execution." Saturday Review, May 5, 1877. 
 
 "Mr,. Pollock is most accurate in his law, which is a matter of much importance, in a 
 book whose contents may almost bo got by heart by a hard-working student." The 
 Delator, May 12, 1877. 
 
 "A few more books written as carefully as the ' Digest of the Law of Partnership,' will, 
 perhaps, remove some drawbacks, and render English law a pleasanter and easier subject 
 to study than it is at present. " The Examiner, March 31, 1877. 
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 24 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 PATENTS. Hiiidmareh's Treatise on the Law rela- 
 ting to Patents. 8vo. 1846. 11. Is: 
 Seton. Vide "Equity." 
 
 PERSONAL PROPERTY. Smith's Real and Personal 
 Property. A Compendium of the Law of Real and Personal 
 Property Primarily Connected with Conveyancing ; Designed as a 
 Second Book for Students, and as a Digest of the most useful 
 Learning for Practitioners. By JOSIAH W. SMITH, B.C.L., 
 Q.C., Judge of County Courts. Fifth Edition. 2 vols. Demy 8vo. 
 1877. (Just ready.) 21 2s. 
 
 PETITIONS Palmer. Vide " Conveyancing." 
 PETTY SESSIONS. Stone's Practice for Justices of 
 the Peace, Justices' Clerks and Solicitors at Petty and Special 
 Sessions, in Summary Matters and Indictable Offences, with a List 
 i i . of Summary Convictions and of Matters not Criminal. With Forms. 
 Eighth Edition. By THOMAS SIRRELL PRITCHARD, of 
 the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. 
 In 1 vol. Demy 8vo. 1877. (Just ready.) I/. 10s. 
 
 " The design of the present Edition has been developed with a view to offer to Magis- 
 trates and Practitioners, In one volume of moderate size, a complete general account of 
 the Procedure at Petty Sessions in Summary Matters and Indictable Offences, in such a 
 consecutive form, according to the usual rder of events, as to render easily attainable 
 information on any point of procedure as it may arise at any given period of the pro- 
 ceedings. "Extract from Preface. 
 
 "In clearness of exposition, in choice of matter, and, above all, in orderliness of 
 
 arrangement, the book leaves little to be desired The book, as a whole, is 
 
 thoroughly satisfactory, and, having gone carefully through it, we can recommend it 
 with confidence to the numerous body of our readers who are daily interested in the 
 subjects to which it relates." Solicitors' Journal, December 8th, 1877. 
 
 PLEADING. Arehbold. Vide " Criminal." 
 
 POOR LAW. Davis' Treatise on the Poor Laws. Being 
 Vol. IV. of Burn's Justice of the Peace. 8vo. 1869. II Us. 6d. 
 
 POWERS. Farwell on Powers. A Concise Treatise on 
 
 Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Esq., 
 
 Barrister-at-Law. 8vo. 1874. II. Is. 
 
 " We recommend Mr. Farwell's book as containing within a small compass what would 
 
 otherwise have to be sought out in the pages of hundreds of confusing reports." The Laic, 
 
 November, 1874. 
 
 PRECEDENTS. Vide " Conveyancing." 
 
 PRINCIPAL AND AGENT. Petgrave's Principal and 
 Agent. A Manual of the Law of Principal and Agent. By 
 E. C. PETGRAVE, Solicitor. 12mo. 1857. 7s. 6rf. 
 
 Petgrave's Code of the Law of Principal and 
 Agent, with a Preface. By E. C. PETGRAVE, Solicitor. 
 Demy 12mo. 1876. Net, scioed, 2*. 
 
 PRIVY COUNCII Finlason's Judicial Committee of 
 
 the Privy Council. The History, Constitution and Charac- 
 ter of the Judicial Committee of the Privy Council, considered as a 
 Judicial Tribunal, especially in Ecclesiastical Cases, with special 
 reference to the right and duty of its members to declare their 
 opinionp. By W. F. FINLASON, Barrister-at-Law. Author of "The 
 Ridsdale Case," &c. Demy 8vo. 1878. (Just ready), 4s. 6d. 
 
 Lattey's Handy Book on the Practice and Pro- 
 cedure before the Privy Council. By ROBERT 
 THOMAS LATTEY, Attorney of the Court of Queen's Bench, 
 and of the High Court of Bengal ; and Advocate of the Courts of 
 British Burmah. 12mo. 1869. 6. 
 
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 PROBATE. Browne's Probate Practice: a Treatise on the 
 Principles and Practice of the Court of Probate, in Contentious and 
 Non-Contentious Business, with the Statutes, Rules, Fees, and 
 Forms relating thereto. By GEORGE BROWNE, Esq., Barrister- 
 at-Law, Recorder of Ludlow. 8vo. 1873. 11. In. 
 
 " A cursory glance through Mr. Browne's work shows that it has been compiled with 
 more than ordinary care and intelligence. We should consult it with every confidence, 
 and consequently recommend it to those who require n instructor in Probate Court prac- 
 tice." Laic Times, June 21, 1873. 
 
 PUBLIC HEALTH. Chambers' Exhaustive Index to 
 the Public Health Act, 1875 ; with the full Text of 
 the Act, and of most of the Incorporated Acts. By GEO. F. 
 CHAMBERS, Esq., Barrister-at-Law. Imp. 8vo. 1877. 4s. Qd. 
 
 Chambers' Digest of the Law relating to Public 
 Health and Local Government. With notes of 
 1073 leading Cases. Various official documents ; precedents of 
 By-laws and Regulations. The Statutes in full. A Table of 
 Offences and Punishments, and a Copious Index. Seventh Edition, 
 enlarged and revised, with SUPPLEMENT containing newLocal Govern- 
 ment Board By-Laws in full. Imperial 8vo. 1875-7. 28s. 
 %* The SUPPLEMENT may be had separately, price 9s. 
 
 Chambers' Popular Summary of Public Health 
 and Local Government Law. Imperial 8vo. 1875. 
 
 Net, Is. Qd. 
 
 FitzGerald's Public Health and Rivers Pol- 
 lution Prevention Acts. The Law relating to Public 
 Health and Local Government, as contained in the Public Health 
 Act, 1875, with Introduction and Notes, showing all the alterations in 
 the ExistingLaw, with reference to the Cases, &c.; together with a Sup- 
 plement containing "The Rivers Pollution Prevention Act, 1876." 
 With Explanatory Introduction, Notes, Cases, and Index. By G. 
 A. R. FITZGERALD, Esq., Barrister-at-Law. Royal 8vo. 1876. 
 
 II. Is. 
 
 " A copious and well-executed analytical index completes the work which we can 
 confidently recommend to the officers and members of sanitary authorities, and all 
 interested in the subject matter of the new Act." Law Magazine and lieview, February, 
 1877. 
 
 "Mr FitzGerald's treatise is well adapted for the professional advisers of sanitary 
 board*." Public Health, December 1, 1876. 
 
 " Mr. FitzGerald comes forward with a special qualification for the task, for he was 
 employed by the Government in the preparation of the Act of 1875; and, as he himself 
 says, has necessarily, for sonic time past, devoted attention to the Law relating to public 
 health and local government." Law Journal, April 22, 1876. 
 
 PUBLIC LAW, Bowyer's Commentaries on Uni- 
 versal Public Law. By Sir GEORGE BOWYER, 
 D.C.L. Royal 8vo. 1854. II Is. 
 
 QUARTER SESSIONS. Leeming & Cross's General and 
 Quarter Sessions of the Peace. Their Jurisdiction 
 and Practice in other than Criminal matters. Second Edition. By 
 HORATIO LLOYD, Esq., Recorder of Chester, Judge of County 
 Courts, and Deputy-Chairman of Quarter Sessions, and H. F. 
 THURLOW, of the Inner Temple, Esq., Barrister-at-Law. 8vo. 
 1876. II. Is. 
 
 " The present editors appear to have taken the utmost pains to make the volume com- 
 plete, and, from our examination of it, we can thoroughly recommend it to all interested 
 in the practice of quarter sessions." Law Timet, March 18, 1376. 
 
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 26 STEVENS AND SONS' LAW PUBLICATIONS. 
 
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 Appellate Matters. By THOS. SIRRELL PRITCHARD, of the 
 Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. 8vo. 
 1875. 21. 2s. 
 
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 and that both in legislation and in case law it is carefully brought down to the most 
 recent date." Solicitors' Journal, May 1, 1875. 
 
 RAILWAYS. Browne. Fide " Carriers." 
 
 Lely's Railway and Canal Traffic Act, 1873. 
 And other Railway and Canal Statutes ; with the General Orders, 
 Forms, and Table of Fees. By J. M. LELY, Esq., Barrister-at-Law. 
 PostSvo. 1873. 8s. 
 
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 cluding an Outline of the Liabilities of Railway Companies as Carriers 
 generally, concisely Discussed and Explained. 12mo. 1862. 3s. 
 REAL PROPERTY. Dart. Vide " Vendors and Purchasers." 
 
 Greenwood's Recent Real Property Statutes. 
 Comprising the Statutes relating to Real Estate passed during the 
 years 1874-1877 inclusive ; Consolidated with the Earlier Statutes 
 thereby Amended. With Copious Notes. By HARRY GREEN- 
 WOOD, M.A., of Lincoln's Inn, Esq., Barrister-at-Law. (In the 
 Press). 
 
 Leake's Elementary Digest of the Law of Pro- 
 perty in Land. Containing : Introduction. Part I. The 
 Sources of the Law. Part II. Estates in Land. By STEPHEN 
 MARTIN LEAKE, Barrister-at-Law. 8vo. 1874. II. 2s. 
 
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 Smith's Real and Personal Property. A Com- 
 pendium of the Law of Real and Personal Property, primarily 
 connected with Conveyancing. Designed as a second book for 
 Students, and as a digest of the most useful learning for Practi- 
 tioners. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County 
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 "A well-timed addition to the author's previous work on Sanitary Law." Law 
 
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 ROMAN LAW. Cumin. Vide "Civil." 
 
 Greene's Outlines of Roman Law. Consisting chiefly 
 of an Analysis and Summary of the Institutes. For the use of 
 Students^ By T. WHITCOMBE GREENE, B.C. L., of Lincoln's 
 Inn, Barrister-at-Law. Third Edition. Foolscap 8vo. 1875. 7s. Gd. 
 
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 SAUNDERS' REPORTS. Williams' (Sir E. V.) Notes to 
 Saunders'' Reports. By the late Serjeant WILLIAMS. 
 Continued to the present time by the Right Hon. Sir EDWARD 
 VAUGHAN WILLIAMS. 2 vols. Royal 8vo. 1871. 21. 10s. 
 SETTLED ESTATES. Middleton's Settled Estates Act, 
 1877, with Introduction, Notes and Forms, and Summary of Practice, 
 by JAMES W. MIDDLETON, B.A., of Lincoln's Inn, Barrister-at- 
 Law. 12mo. 1878. 3s. 6d. 
 SHIPPING, and vide " Admiralty." 
 
 Boyd's Merchant Shipping Laws; being a Consolida- 
 tion of all the Merchant Shipping and Passenger Acts from 1854 to 
 1876, inclusive ; with Notes of all the leading English and American 
 Cases on the subjects affected by Legislation, and an Appendix 
 containing the New Rules issued in October, 1876 ; forming a com- 
 plete Treatise on Maritime Law. By A. C. BOYD, LL.B., of the 
 Inner Temple, Esq., Barrister-at-Law, and Midland Circuit. 8vo. 
 1876.. II. 5s. 
 
 " Mr. Boyd confines himself to short, and as far as we can judge correct, statements of 
 the effect of actual decisions." Solicitors' Journal. January 20, 1S77. 
 
 "The great desideratum is obviously a good index, and this Mr. Boyd has taken par- 
 ticular care to supply. We can recommend the work as a very useful compendium of 
 shipping law."-r- Law Times, December 30, 1876. 
 
 SOLICITORS. Cordery's Law relating to Solicitors 
 of the Supreme Court of Judicature. By A. 
 CORDERY, of the Inner Temple, Esq., Barrister-at-Law. 
 
 (In the press.) 
 
 SPECIAL SESSIONS PRACTICE. Stone. Vide "Petty Sessions." 
 
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 Third Edition. With Tables of all the Stamp Duties payable in 
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 *The Revised Edition of the Statutes, prepared 
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 by the authority of Her Majesty's Government. Imperial 8vo. 
 
 VoL 1. Henry III. to James II., 
 
 1235-1685 
 
 1 
 
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 Orf. 
 
 M 2. Will. & Mary to 10 Geo. III., 
 
 1688-1770 
 
 1 
 
 
 
 
 
 3. 11 Geo. III. to 41 Geo. III., 
 
 1770-1800 
 
 
 
 17 
 
 
 
 4. 41 Geo. III. to 51 Geo. III., 
 
 1801-1811 
 
 
 
 18 
 
 
 
 5. 52 Geo. III. to 4 Geo. IV., 
 
 1812-1823 
 
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 5 
 
 
 
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 Chronological Table of and Index to the Statutes 
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