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îîero $ork
FROM THE
BENNO LOEWY LIBRARY
COLLECTED BY
BENNO LOEWY
1854-1919
BEQUEATHED TO CORNELL UNIVERSITY﻿﻿A MANUAL
OP
INTERNATIONAL LAW.
BY
EDWARD M. GALLAUDET, Ph. D., LL.D.,
PRESIDENT AND PROFESSOR OF MORAL AND POLITICAL SCIENCE IN
THE COLLEGE FOR DEAF-MUTES, WASHINGTON, D. C.
A. S. BARNES C0.f
NEW YORK, CHICAGO AND NEW ORLEANS.
*879*﻿Entered according to Act of Congress, in the year 1879,
By E. M. GALLAUDET,
In the office of the Librarian of Congress, at Washington.﻿PREFACE.
In preparing the following pages, the writer has en-
deavored to présent within a moderate compass the prin-
cipes of International Law, as recognized m the civil-
ized world at the présent time.
The comprehensive work of M. Charles Calvo, Le
droit international théorique et pratique, published in
Paris in 1870-2, has been taken as the basis of this
manual : which is, in effect, an abridgment of the trea-
tise of Calvo, with the addition of considérable original
matter.
The writer desires to express his great obligations to
Hon. Robert S. Haie, of Elizabethtown, New York,
Agent and Counsel of the United States before the
Mixed Commission on American and British daims, sit
ting in Washington during the years 1871-2-3, for his
patient comparison of large portions of the transla-
tions with the original French, and for the suggestion
of many valuable illustrations found in cases growing
out of the late civil war in the United States: to James
C. Welling, LL.D., President of the Columbian Uni*
versity of Washington, for his fnendly révision of the
Histoncal Sketch and the first two chapters; te Hon.
Henry Stockbridge, of the Baltimore bar, for his kind
criticism of the whole work, with especial reference
to law terms, as well as for many important corrections
of a general nature, and to Professors Samuel Porter
and Amos G. Draper, of the College for Deaf-Mutes,
foi their very valuable assistance in the final révision
ci the work, and m the reading of the proof-sheets.
The writer ventures to believe that the publication
iii﻿iv
PREFACE.
of this manual mayenable manyeducational institutions
to include the subject of International Law in their
courses of study, from which they hâve felt compelled to
exclude it on account of the inconvénient size of the
text-books hitherto available ; and he is not without hope
that the many allusions to the influence exerted by the
United States on the diplomacy of the world, which will
be found in the book, may make it interesting to the
general American reader.
Kendall Green, near Washington, D. C., December, 1878.﻿CONTENTS.
INTRODUCTION.
Historicàl Sketch of the Progress of Interna-
tional Law.
Pagi
First Epoch—From the times of the Ancients to the
FALL OF THE ROMAN EMPIRE........................... I
International Law among the ancients........... 2
Theory of Cicero; The jus gentium of the Romans;
International Law at the end of the epoch.... 3
Second Epoch—From the fall of the Roman Empire
to the Peace of Westphalia: 476—1648............. 4
Influence of Roman Law on the législation of modem
Europe.........................................   4
Canon law; The Rhodian laws.................... 5
The Amalfitan Table............................... 6
Consolato del mare; Guidon de la mer; Other compila-
tions; Discovery of America: Bull of Alexander VI. 7
Influence of the Papal power on the conquest of the
New World; The Reformation...................... 8
Publicists who preceded Grotius: Machiavelli, Suarez,
Victoria.....................................   9
Ayola, Gentilis, Grotius........................ 10
Third Epoch—From the Peace of Westphalia to the
Peace of Utrecht: 1648—1713......................... n
European equilibrium; Right of intervention; Louis
XIV., and his policy after the peace of Westphalia. 12
War for the succession in Spain; The peace of Utrecht:
end of the war for the succession............. 13
Maritime law and the ordinance of 1681; Free ships,
free goods.................................... 14
Contraband of war; The right of blockade; Right of
search; Free navigation of the sea................ 15
v﻿VI
CONTENTS.
Publicists of the epoch: Puffendorf, Zouch, Hobbes,
Loccenius........................................ 16
Molloy............................................. 17
Fourth Epoch—From the Peace of Utrecht to the
CLOSE OF THE SEVEN YEARS’ WAR:	I713—1763.......... 17
Results of the treaty of Utrecht............. .	17
Seven years’ war; Rights of neutrals and belligerents
with respect to navigation and commerce; The war
of 1756........................................   18
Question of precedence; Publicists of the period: Wolff,
Vattel, Bynkershoek, Heineccius, Montesquieu,
Rutherforth, Mably, Dumout, Valin, Pothier, Ber-
todanno, Burlamaqui.............................. 19
Fifth Epoch—From the Seven Years’ War to the
French Révolution: 1763—1789......................... 23
The partition of Poland; Succession to the throne of
Bavaria; Free navigation of the Scheldt.......... 23
Intervention of Prussia in Holland; The triple alli-
ance; Independence of the United States of
America; French ordinance of 1778................ 24
Armed neutrality................................... 25
Publicists of the epoch: Moser, Lampredi, Bentham..	26
Sixth Epoch—From the French Révolution to the
Peace of Paris and the Treaties of Vienna: 1789—
1815................................................. 27
Effects of the French révolution upon international re-
lations; Discussion between the United States and
France.......... ...*.......................... 27
The United States and Prussia; The rights of neutrals;
Great Britain and the Baltic powers.............. 28
Treaties of Paris of 1814 and 1815; Congress of Vienna
and its treaties................................. 29
Constitutions of Germany and Switzerland, and
other questions settled by the Vienna Congress; Pub-
licists of the epoch: G. F de Martens, Kant, Azuni,
Koch, Savigny, etc............................... 30
Decisions and judgments of courts.................. 32
Seventh Epoch—From the Congress of Vienna to the
PRESENT TIME: 1815—1878.............................. 32﻿CONTENTS.
Vil
Prominent events of the epoch; The Holy Alliance; 32
Intervention in Naples................................  33
Congress of Verona; intervention of France in Spain;
Independence of the Spanish and Portuguese colonies
in America; English intervention in Portugal; Greek
révolution.........................................   34
Constitution of the vice-royalty of Egypt; French
révolution of July, 1830; Right of intervention______	36
Belgium: intervention of the five great powers; Aboli-
tion of the slave-trade........................... 37
Discussion as to the right of search between Great
Britain and the United States; Treaty of Washing-
ton concerning the slave-trade.......................   38
The United States and Mexico; Filibustering expédi-
tions against Cuba, Nicaragua and Sonora; Anglo-
French intervention on the La P lata; French révolu-
tion of 1848 .........................................
Révolution in Italy and Germany; Insurrections in
Hungary and Poland; War in the East, of 1854;
Congress of Paris of 1856; Itàlian war and treaty
of Zurich......................................... 40
Civil war in the United States; French intervention in
Mexico; War between Spain, Peru, and Chili; War
in China and Japan; Peace of Prague................. 41
Contemporary publicists: Wheaton, Klüber, Hegel,
Proudhon, Kent, Ch. de Martens, Bello, Garden,
Story, Foelix, Heffter, Pinheiro-Ferreira, Ortolan,
Phillimore, Hautefeuille, Pistoye and Duverdy,
Riquelme, De Clere, and de Vallat, Cauchy, Wool-
sey, Lawrence, Gessner, Bluntschli, Manning, West-
lake, Halleck, Twiss, Vidari, Fiore, E. Ortolan,
Dalloz, Von Heltzendorff; Clarke, Creasy.....42-49
CHAPTER I.
General Principles and Sources of International
Law.
Définition.......................................... 50
Division of international law; Bases of international
law; System of Grotius.... -........................ 51﻿CONTENTS.
viii
Systems of Puffendorf and Bynkershoek................ 52
Systems of Wolff and Vattel.......................... 53
System of Heffter.................................... 54
Opinion of Wheaton; Opinions of Phillimore and Ben-
tham........ ........................................ 55
Character of international law; Diversity of sources. 56
Works of publicists.................................. 57
Treaties and conventions; History; Diplomatie acts..	58
Decisions of prize-courts; Decisions of local tribunals
and State législation.............................. 59
Mixed tribunals; arbitrations; Opinion of jurists; other
sources.............................................. 60
CHAPTER II.
Essential Attributes of a State.
Section I.—Sovereignty...................................... 62
The state and nation defined........................  62
A colony is part of a state; Sovereignty of States...	64
The international effect of the union of States; Per-
sonal union under the same sovereign: Sweden and
Norway; Canton of Neuchâtel; Ireland............... 65
Actual union under the same sovereign ; Union of States
by incorporation;.................................. 66
Fédéral union and confédérations;	Switzerland....	67
United States of America; Constitution of 1787....... 68
Effects of a protectorate; Half sovereign States.....	69
Origin of state sovereignty.......................... 70
State identity; Civil war: its effects on the sovereignty
of a state......................................... 71
Récognition of belligerents in case of civil war.....	73
Civil war in the United States; Discussion between
Adams and Russell on the récognition of the Con-
federates as belligerents by the British govemment. 74
Récognition of Independence; Effects produced by a
fundamental change in the international relations of
a state: On treaties...... ........................ 75
On the public debt................................... 76﻿CONTENTS.	ix
On public and private property..................... 77
Responsibility of a govemment for acts of violence
committed by the preceding govemment............. 78
How a state may lose its sovereignty............... 79
Section IL—Independence................................... 80
Independence of a sovereign state; In the constitution
of its govemment................................. 80
Intervention....................................... 81
Opinions of publicists............................  82
Origin of the interventions of the XVI. and XVII.
centuries; Interventions of the XVIII. and XIX.
centuries........................................ 84
The déclaration of England with regard to the right of
intervention..................................... 85
French intervention in Spain; The Monroe doctrine..	86
President Monroe’s Message, 1823................... 87
Remarkable words of Lord Brougham.................. 88
Ground of the intervention in Mexico; Convention of
London, 1861..................................... 92
The intervening powers invite the United States to
join the alliance................................ 93
Letter of Napoléon III. to Gen. Forey.............. 94
The project of substituting a monarchy for the repub-
lican govemment; Note of Mr. Seward, of Dec.,
1861............................................. 95
England and Spain quit the alliance; A junta of nota-
bles offers the throne of Mexico to Maximilian....	96
The United States refuse to recognize the Empire; Note
of Mr. Seward, of April, 1864; Mr. Seward’s instruc-
tions to the Minister of the United States in France.
1865............................................. 97
Decided attitude of the United States.............. 98
Relations between the United States and France as-
sume a grave aspect; Note of Mr. Seward, 1866;
End of intervention; Fall of the Empire.......98-100
Médiation; Independence of a state in its législation. 101
The right of self-preservation.................... 102
SECTION III.—Equality. Right of equality; Rank and dig-
nities...............:.......................... 102﻿X
CONTENTS.
Questions of precedence; Royal honors; Precedence
with respect to	republics........................... 103
Precedence among the half-sovereign and dépendent
States; Military and naval courtesies; Maritime céré-
monial in foreign	ports, and on the open sea.......... 104
General rules......................................... 105
Salutes between ships and fortified places; Cases where
ships hâve sovereigns, princes, or ambassadors on
board................................................. 106
CHAPTER III.
Rights, Powers, and Duties of States in a time
of Peace.
*
Section I.—Public property and eminent domain............. 107
How states may acquire property.................... 107
A sovereign State may alienate its territory....... ic8
By what means national territory can be alienated ; Per-
pétuai leases; Fiefs; Hypothecation of national ter-
ritory; Sale of national territory................. 109
Purchase of Louisiana and Alaska by the United States;
Cession and donation; Modem cases; Maritime
jurisdiction; Harbors and roadsteads............. 110
Gulfs and bays; Rights of navigation in straits.... m
Enclosed straits and seas; The straits of the Baltic... 112
Discussion between the United States and Denmark;
Treaty of March I4th, 1857....................... 113
The Bosphorus, Dardanelles, the Black Sea; Présent
ruling of international law relative to straits and
gulfs............................................ 114
Opinions of publicists; Limits of territory determined
by usage in thè absence of treaty stipulations... 115
Customs surveillance on maritime territory; Significa-
tion of the words coast and shore......... 116
Case of the Adela.................................. 117
The sea cannot be appropriated..................... 118
Exercise of sovereignty on the sea; Circumstances under
which the empire of the sea has been claimed. 119﻿CONTENTS.	xi
Grotius and his Mare îiberum; Seldoîi and Yà&Mare
clausum.......................................... 120
The freedom of the seas admitted by ail nations.... 121
Right of domain over islands; Lakes and their shores;
Free navigation of rivers........................ 122
Section II.—Legislative Rights, and Rights of Juris-
DICTION.............................................. 123
Extfent of these rights; Conflicts of jurisdiction. 123
Immovable property................................. 124
Laws conceming personal property; Contracts........ 125
Lex fori; Jus albinagii............................ 126
Jus detractûs; Marriage and divorce; Jurisdiction of
a state over its citizens........................ 127
Jurisdiction of a state over foreigners domiciled therein;
Treason and other crimes......................... 128
Merchant-vessels in foreign ports; Vessels-of-war and
their prizes in foreign ports.................... 129
On the high sea; Piracy............................ 130
English and American législation; Are privateers to be
regarded as pirates?............................. 131
Penaltiesof piracy; Disposition of the booty of pirates;
Execution of foreign sentences in criminal matters. 132
Foreign judgments in civil matters; Contracts and
obligations........................................ 133
Section III.—Reciprocal Obligations of States............. 133
Every right implies a corrélative duty............. 133
Absolute obligations; Responsibility for acts of agents. 134
Responsibility for the acts of private citizens.... 135
Responsibility on account of loss sustained by foreign-
ers in civil war; Responsibility for acts of aggres-
sion organized against third parties on the territory
of a friendly state; Conventional obligations.... 136
States owe each other mutual respect; The right of
commercial intercourse........................... 137
Limits and régulations relative to commerce; Succor
in war; The duty of mutual assistance; Famines
and other public calamities........................ 138
Section IV.—Nationality—A.—Of Persons..................... 138
How the nationality of individuals maybe determined 138﻿XÜ	CONTENTS.
Cases of illegitimate children; Foundlings; Nation-
ality acquired through marriage; Rights of natural-
izâtion and émigration........................  140
Methods of naturalization in different countries: In
the United States; In Great Britain; In Austria... 142
In Russia; In France; Apparent conflict of laws of
expatriation and neutralization................ 143
B.—Nationality of Vessels: Principles; Advantages
growing out of nationality..................... 144
Distinction between ships-of-war and merchant-vessels. 144
Conditions of nationality in different nations; United
States; Proofs of nationality; Flag............ 145
Ship’s papers; Ships-of-war; Proofs of nationality;
Transports..................................... 146
Section V.—Extradition.................................. 147
Définition; General considérations............... 147
Extradition among the Jews; Among the Greeks;
Right of asylum; Extradition among the Romans;
In the middle âges............................. 148
In modem times; In the United States............. 150
First treaty with England....................... . 151
Treaties with France and other nations; Suspension
of the treaty of 1842 with Great Britain; Its resump-
tion in 1876................................... 125
Extradition in the absence of a treaty........... 154
Case of Arguellis................................ 155
Case of Tweed.................................... 156
Extradition of deserters..........................157
Section VI.—The Right of Représentation—A.—Di-
plomacy...........................................  158
Définition; History of diplomacy................. 158
Object of diplomacy; Studies essential to the diplomat. 159
B.—Diplomatic Agents: The right of légation_____160
Half-sovereign and dépendent States; In the case of
civil War; A state may refuse to receive diplomatic
agents in certain cases........................ 161
Classification of diplomatic agents; Rank of Diplo-
matic agents; étiquette, cérémonial, etc.......... 162
Duties of ministère in regard to their counfrymen.... 163﻿CONTENTS.
xiii
C.—Consuls: Origin of consulates.. ;................ 164
Object of consulates; Organization................. 165
Rank; Commission and exequatur; Is a consul in-
vested with a diplomatie character?.............. 166
Privilèges and immunities of consuls; In France; In
England; In the United States..................... 167
A native may be appointed a foreign consul.......... 168
Powers and duties of consuls........................ 169
Section VII.—The Privilège of Exterritoriality____________170
Définition.......................................... 170
Effects; Privileged persons; International préroga-
tives of sovereigns................................. 171
Exemptions and privilèges enjoyed by sovereigns; A
sovereign loses his international prérogatives under
certain circumstances............................. 172
Diplomatie agents; Extent of the privilège of exterri-
toriality........................................... 173
Independence; Exterritoriality an ancient principle;
Opinions of modem authors; Real estate and Per-
sonal property of ministère........................  174
Import duties and taxes; Freedom of worehip........ 175
Grounds of according the privilège of exterritoriality
to ships-of-war; Vessels in open sea; In port, or
inland waters; Exemption from civil and criminal
jurisdiction...................................... 176
Rights of the State goveming a port ; The foreign ves-
sel may not do any hostile acts; Sanitary régulations;
Extent of immunity; Foreign armies................ 177
Section VIII.—International Contracts...................... 178
Définition and division of treaties; Temporary, perma-
nent and perpétuai; Personal and general treaties.. 178
Conventions; Cartels; Various sorts of treaties; Guar-
anty; Protection; “Neutrality; Alliance; Amity.... 179
Confédération; Treaties of boundary; Cession or ex-
change; Relating to consuls, commerce, extradition,
etc.; Treaties of peace........................... 180
The right to negotiate and conelude treaties; Who
may make treaties................................. 181
Signature of treaties; Indirect compacts between States;
Adhesion; Approbation; Accession.....................182﻿XIV
CONTENTS.
Ratification of treaties; Refusai of ratification. 183
When treaties begin to be binding; Confirmation and
guaranty; Interprétation...................... 184
Termination of treaties......................... 186
Section IX.—International régulations concerning
SOCIAL AND ECONOMIC INTERESTS..................... l86
Literary and artistic property.................. 186
Law of France of 1852............................. 187
Congress at Brussels, 1858; International transit by
rail; France and Belgium........................ 188
Works to be done in common; Customs duties; Postal
conventions..................................... 189
Registered letters; Money orders; Need of uniform
money........................................... 190
French standard adopted by Italy, Switzerland and
Belgium in 1865; ByGreecein 1868; Conférence of
1867; Effects of the Conférence................. 191
Section X.—Amicable adjustment of différences be-
TWEEN STATES........................................ ig2
Duty of modération; Modes of settling international
questions; Amicable arrangement................. 192
Compromise; Médiation............................. 193
Arbitration; Congresses and conférences........... 194
Measures for redress falling short of war......... 195
Retortion......................................... igy
Reprisais......................................... 198
Embargo........................................... 199
CHAPTER IV.
Rights, Powers and Duties of States in a time of
War.
. Section I.—The object and Just occasions of War. .. 200
Définition of war; Offensive and défensive war..200
Auxiliary wars; Public wars; Private wars; Mixed
wars............................................ 201
Complété and incomplète wars; Wars of independence;
Insurrectionary wars; Wars of conquest......... 202"
National wars; Wars of intervention; Civil wars. 203﻿CONTENTS.
XV
Wars should not be entered upon without just cause.. 204
Pretexts of war................................. 205
Section II.—Déclaration of war, and its immédiate
EFFECTS........................................... 206
Customs of former times......................... 206
Ultimatum; Ought war to be preceded by a déclara-
tion?........................................... 207
To whom the right of waging war belongs.......... 208
Due notice to be given of the commencement of hos-
tilités; Enemy’s person and property.............209
Effects of a déclaration of war on commerce, on con-
tracts, and on treaties; Effects of hostilities on com-
merce with the enemy............................ 210
Exceptions; Delay allowed for the departure of ene-
mies with their property; Permits and licenses.211
Section III.—Alliances.................................. 211
Offensive; Défensive; Offensive and défensive....212
The binding force of alliances; Casus fœderis in treaties
of guaranty; General rules for the formation of al-
liances........................................  213
Section IV.—The enemy: lawful and unlawful meas-
URES OF ATTACK AND DEFENCE.........................214
Duties growing out of a State of war............ 214
Division of the enemy into classes; The position in
which war places two belligerent States....... 215
Standing armies; Exemptions from military service; ’’
Conscriptions................................. 217
Guérillas; The Germantndwehrand landsturm........218
Weapons of war; Bombardment................... 219
Opinions of Bello and Wheaton ; Employment of bal-
loons; Prohibited weapons......................220
Assassination; Surprises, ruses and stratagems; False
reports........................................ 221
Spies; Haie and André........................... 222
Section V.—Rights and duties of war as regarding
THE PERSON OF THE ENEIV^Y......................... 222
Prisoners of war................................ 222
Sovereign prisoners; Deserters found among prisoners;
Refusai of quarter; Putting prisoners to death.223﻿XVI
CONTENTS.
Treatment and support of prisoners; Employment of
Prisoners; Parole and exchange....................224
Cartels; Hostages; Placingprominent citizens in places
of danger........................................ 225
Geneva convention as to the hospital service; Military
occupation; Maintenance of municipal, civil and
criminallaws..................................... 226
Effect of occupation on slavery; Duration of the ef-
fects of military occupation..................... 227
Section VI.—Rights and duties of war concerning
enemy’s property..................................... 227
Rights to enemy’s property conferred by war........ 227
Property on land; Personal property ; Public archives;
Libraries and Works of art; Public buildings and
monuments; Dévastation of territory.............. 228
Private property in time of war;	Pillage........... 229
Booty; Military contributions and réquisitions..... 230
Seizure and use of private property in the enemy’s
country; Réquisitions of money................... 231
Indemnities.......................................  232
Enemy’s property on the sea.........................233
Efforts to secure the abolition of maritime prizes.234
Privateers; Efforts for the abolition of privateering;
Treaty between the United States and Prussia..... 235
Efforts in France; Déclaration of the Congress of
Paris of 1856.................................... 236
Civil war in the United States, 1861-1865.......... 237
Volunteer navy of Prussia; The principle of the invio-
lability of private property on the sea.......... 238
Resolutions of the New York Chamber of Commerce
in 1854; Proclamation by Austria in 1866; Alabama
daims; Action of the Diet of the North German
Confédération in 1868...........................  239
The Franco-German war of i87<>-’7i; Debates in the
British Parliament iu 1871; Position of the United
States........................................... 240
Section VII.—Relations between belligerents............... 241
Passports, safe-conducts and safe-guards............ 241
Cartelships; Rédemption or ransom of captured property 242﻿CONTENTS.	xvii
Flags of truce................................... 243
Truces and armistices; Actslawful during truces; Cap-
itulations........................................ 244
Section VIII.—Conquests................................. 245
Définition....................................... 245
Confirmation of conquests; Political condition of con-
quered territory............................... 246
Rétroactive effect of the confirmation of conquests;
Transfer of fealty; Conditions requisite to make
such transfer valid; Opinion of Chief-Justice Mar-
shall............................................. 247
Exceptions to the foregoing principle; Effects of con-
quests upon political rights...................... 248
Effects of conquests on private property......... 249
Payment of the public debt....................    250
Section IX.—The termination of war.......................250
Means of securing peace.......................... 250
Cessation of hostilities; Submission of the vanquished;
Treaties of peace; By whom treaties of peace may
be concluded................................... 251
Médiation; Effects of treaties of peace.......... 252
Conditions necessary to the validity of a treaty of
peace; Infractions of treaties; Duration of treaties. 254
Section X.—Rights of postliminy and recapture...........256
Définition of postliminy; Foundation of theright; Ex
tent of the right; Territories, provinces and towns. 256
Contracts affecting the public domain ; Application of
the right of postliminy to recaptures.......... 257
United States législation; Recapture of neutral vessels;
Recapture of vessels taken by pirates............. 258
CHAPTER V.
Neutrality.
Section I.—Définition and historical sketch of neu-
TRALITY............................................ 260
Définition; Historyof neutrality; Consulato de la mer;
French law; Exceptions; English policy......... 261
Armed neutrality, 1780..........................  262﻿xviii
CONTENTS.
Position of the United States......................263
British policyin 1806; The Berlin decreeof Napoléon. 264
English foreign enlistment acts of 1819 and 1870;
Crimean war, 1854................................ 265
Déclaration of the Congress of Paris of 1856; Ques-
tions growing out of the Amercan civil war; The
Alexandra......................................... 266
The case of the Alabama............................  268
The Florida, Georgia, etc; Claims of the United States
against England................................... 269
England admits the necessity of reforming her foreign
enlistment acts; Resumption of negotiations with
regard to the Alabama claims...................... 270
Treaty of May, 1871; Rules for the government of the
tribunal of arbitration........................... 271
Members of the tribunal; Meeting at Geneva in Dec.,
1871.............................................. 272
Decision of the tribunal; Résumé.................... 273
Section II.—General principles of neutrality, and
DUTIES OF NEUTRALS.................................... 274
Neutrality is of two kinds: natural and conventional:
Neutrality of Switzerland and Belgium; Neutrality
of Luxemburg...................................... 274
Partial neutralization of territory; Déclarations con-
cerning neutrality; Duties of neutrals; Impartiality. 275
Raising of recruits on neutral territory............ 276
Action of German citizens domiciled in U S. in 1870;
Fitting out of vessels in a neutral state for a belli-
gerent; Furnishing arms and material of war; Pe-
cuniary aid; Purchase of provisions................277
Military refugees on neutral territory; French troops
in Switzerland in 1871............................ 278
Course pursued by Belgium; Punishment for violations
of neutrality; Individual violations of neutrality:
Armed neutrality; Inability of a state to maintain
neutrality........................................ 279
Section III.—The rights of neutrals.........................279
Classification ofthe rights of neutrals; Inviolability of
territory; Marine transit; Case of the Florida, 1864. 280﻿CONTENTS,
XIX
The right of asylum; English practice in 1861-2 .... 281
Limit as to the number of war-vessels admitted to a
neutral port; Privateers; Free admission of mer-
chant-ships; Landing of prisoners of war in neutral
ports; The right of commerce....................  282
Neutral ships as coasters........................ 283
Section IV.—Contraband of	war. ..................... 283
Définition and origin; Treaties conceming contraband
of war........................................    283
Articles usually regarded as contraband at the présent
time............................................  284
The character of goods often determined by their des-
tination.......................................... 285
Conditions necessary to the capture of contraband of
war.............................................. 286
Rules laid down by Ortolan......................... 287
Case of the Springbok; Sale of vessels-of-war..... 288
Transportation of combatants and	dispatches........ 289
Affair of the Trent................................ 290
Section V.—Sieges and Blockades........................... 292
Définitions.........................................292
Blockades must be effective; Due notice must be given. 293
English jurisprudence; French practice; American
practice; Vessels in port at the time of establishing
a blockade....................................... 294
Duration of blockades.............................. 295
Violation of blockades; Presumption of knowledge of
a blockade; What constitutes an attempt to violate
a blockade....................................... 296
Violation of blockade by departure from a closed port. 297
Penalties for the violation of blockades; At what time
a vessel may be captured......................... 298
Case of the Circassian............................. 299
Section VI.—The right of visitation and search...........301
History of the right of search; Treaty of 1659 between
France and Spain................................. 301
Legitimacy of the right of search.... ..............302
Présent usage in making visitations; Convoy; Conceal-
ment or destruction of papers; Case of the Peterhoff. 303﻿XX
CONTENTS.
Right of search in time of peace..................... 304
Seizure of English sailors on neutral vessels........ 305
Case of the Virginius................................ 307
Section VII.—Maritime Prizes................................. 309
Exercise of the right of capture at sea.............. 309
Title to prizes; Duties of captors................... 3x0
Where prize cases must be adjudicated................311
Decision of the Suprême Court of the United States;
Peculiar character of prize-courts.................. 312
Mode of constituting prize-courts; In England; In
France; In Prussia.................................. 3x3
In the United States; Jurisdiction over neutral prizes;
Where prize-courts may sit.......................... 314
Extent of jurisdiction of prize-courts in England and
in the United States; Where the prize must be lo-
cated; Rules governing prize-courts................. 315
Finality of prize-court decisions; Prize decisions in
France in i870-’7i..............-,.................316
Responsibility of the State; Responsibility of the captor. 317
Case of the Sir William Peel......................... 3x8
Joint captures; Capture by public vessels............319
Services before and after capture; Convoys; Vessels
acting together in the same service; Cases in which
no right of joint capture can be claimed; Captures
by land and naval forces combined; Captures by
boat’s crews; Rights of allies..................... 320
Exceptional position of privateers; Division of pro-
ceeds to joint captors............................... 321﻿A MANUAL
OF
INTERNATIONAL LAW.
INTRODUCTION.
HISTORICAL SKETCH OF THE PROGRESS OF INTER-
NATIONAL LAW.
HE student of international law being at the
same time a student of history, the attention of
the reader must first be directed to the leading events
which hâve suggested and developed the law of na-
tions. For without a knowledge of these events, and
the results flowing from them, no proper appréciation
can be gained of the moral force of that code which,
though not yet adopted by any world’s parliament,
already wields a power that emperors and kings dare
not defy, and that is destined one day to banish war
from the face of the earth.
Attaching due relative importance to certain facts in
the world’s history which hâve exerted influence on
international relations, there appear to be seven periods
sufficiently well defined to be separated into epochs.
These we will consider in order, noticing also under
each division the writers whose works deserve men-
tion as forming part of the history of the epoch in
which they appeared.
I﻿*>
HISTORICAL SKETCH.
FIRST EPOCH,
FROM THE TIMES OF THE ANCIENTS TO THE FALL
OF THE ROMAN EMPIRE, A. D. 476.
In the heroic times of Greece mercy was not shown
in war. Men were not content to conquer their ene-
mies and capture their arms ; corpses were mutilated
and left to be devoured by birds of prey. In their
relations with other nations the Greeks considered
themselves a superior race. According to Aristotle,
barbarians were destined by nature to be the slaves of
the Greeks:
In the Peloponnesian war Athens and Sparta were
rivais in cruelty ; and this rivalry, continued even
during the suspension of hostilities, kept alive con-
tinuai disorders among the States of the Peloponnesus.
In the course of time, however, the following élé-
ments of public law were recognized as governing the
international relations of the different peoples of
Greece.
ist. The privilège of burial for those slain in battle.
2d. No permanent trophies to be erected.
3d. Temples to be regarded as asylums for ail who
sought them during an assault.
4th. Burial to be denied to such as committed
sacrilege.
5th. Greeks to be allowed to sacrifice in the temples
and visit places of public amusement in time of war.
These principles were recognized and sanctioned by
the Amphictyonie League.
The law of nations, as set forth in the Twelve
Tables, is marked with a spirit of exclusiveness not
less pronounced than that which characterized the
public internai law of Rome, and is most forcibly﻿JUS GENT1UM OF THE ROMANS.
3
epitomized in the claim that against a stranger the right
of possession is perpétuai : adversus hostem æterna
auctoritas.
But Rome was not long in rising to a better standard
of law.
Nowhere among the writings of the Greek moralists
and philosophers can a theory of international law bc
found so broad or so humane as that set forth in the
writings of Cicero ; who déclarés it to be the malice
of man that impels him to use violence against man,
to oppose force to force. War should hâve no other
object than the securing of peace. We ought to par-
don the vanquished, if they hâve not violated the rulcs
of war.
According to Cicero, propositions of peace should
always be listened to, unless they involve plain indica-
tions of insincerity. He maintains also that one is
bound to keep faith even with an enemy, citing in
support of this the instance of Regulus returning to
Carthage, and that of the Roman Senate handing over
to Pyrrhus the traitor who had proposed to poison
him.
The jus gentium of the Romans was far from being
a positive international law, founded on the mutual con-
sent of nations or on any generally received practice.
From ail the définitions given of the term jus gen-
tium by Roman jurists, it appears clearly that these
words do not signify a rule of conduct applicable to in-
ternational relations, but only the general principle of
right grounded in human nature, influential only so far
as civilization had, at that time, permitted it to be estab-
lished and comprehended.
Nothwithstanding the advance made in the general
sphere of international law down to the time of the﻿4
HISTORICAL SKETCH.
fall of the Roman Empire, international relations came
very far short of being governed by the principles of
strict justice : the law of nations could be said to be
in only a rudimentary State.
The invasion by the German tribes, spreading those
ideas of liberty and independence which hastened the
fall of the Cæsars, rendered yet more uncertain and
more changeable the situation of those peoples between
whom Rome had served as a bond of union, and we
look in vain for any fixed principle of international
relations. However, to the new States, born of the
ruins of the Empire, Rome transmitted her ideas, and
with them her law. Thus were preserved the common
and most important principles which, combined with
the spirit of the northern races, became the founda-
tion of a new civilization.
SECOND EPOCH,
FROM THE FALL OF THE ROMAN EMPIRE TO THE
PEACE OF WESTPHALIA, 476—1648.
At the fall of the Roman Empire, many cities pre-
served their municipal constitutions, and continued
under their old legal régime.	Savigny avers that
even before the discovery of the Pandects at Amalfi,
Roman law had corne to form an intégral part of Euro-
pean législation.
Another element which tended to perpetuate Roman
traditions and législation in this epoch was the influ-
ence exercised by the Christian Church, which was
also in the direction of réconciliation and unity among
nations.
And still another evidence of the preponderating﻿INFLUENCE OF ROMAN CIVILIZATION.
5
influence which Roman civilization had corne to exert
in the Middle Ages, is found in the importance accorded
to the learned professions. The professors at Bologna
were authorized to act as arbitrators in the différences
arising between the several States of Italy and Fred-
erick Barbarossa ; and the cities of Lombardy referred
their disputes to the lawyers.
We hâve already alluded to the Church as consti-
tuting a bond between the nations. This organiza-
tion, which had many points of contact with the Em-
pire, thought to advance the accomplishment of its
mission by cstablishing a code of its own. This code,
based to a certain extent on Roman législation, em-
braces what is known as canon-law: on which, taken
in connection with Roman law, the international law
of the middle âges was founded.
It was, however, not possible to apply rigorously
and exactly the old Roman law,—which took for granted
the absorption of the world into the bosom of Rome,—
to ail these countries which were to be thenceforth
separate, and liable to be invaded by other nations.
Among the commercial nations of antiquity the
Rhodians were the first to publish laws for maritime
commerce.
Cicero, in his discourse Pro lege Manilia, thus com-
mends the wisdom of the Rhodian législation: Rho-
diorum usque ad nostram memoriam disciplina navalis
et gloria remansit.
Strabo reports that he found the island of Rhodes
governed in general by admirable laws, especially
those relating to maritime disputes.
We cannot know precisely the period to which these
laws must be referred. It is, however, indisputable
that they were the source of maritime jurisprudence,﻿6
HISTORICAL SKETCH.
that they served almost altogether for rules of law to
the nations along the shores of the Mediterranean Sea,
that they exercised a considérable and propitious in-
fluence over the marine affairs of the Greeks, and
that the Romans appropriated them almost bodily.
The Cæsars, who called themselves the masters of the
world, declared Rhodian law sovereign over the sea.
The lawyer Volneius Mæcianus relates this response
of the Emperor Antoninus to the request of Eudemon
of Nicomedia:	“I am the master of the world ; but
law is mistress of the sea. That the national code of
the Rhodians should be observed in ail particulars is
no violation of our laws: for after this manner the
Emperor Augustus has heretofore decreed.”
Among the compilations of maritime law correspond-
ing to this epoch was the Table cF Amalfi.
The city of Amalfi, situated on the Gulf of Salerno,
in the old Kingdom of Naples, had acquired in the
Middle Ages, by means of its navigation and commerce,
an influence which for some time rivalled even that of
Venice. The Amalfitans were the first Europeans to
enter into commercial relations with Mahometan coun-
tries : they spread themselves abroad in the Levant, in
Egypt, in Arabia, in India, and in Africa.
It is natural to suppose that under these circum-
stances the Amalfitans would make it a point to hâve
laws conformed to their requirements, and tribunals
charged with the duty of deciding the frequent dis-
putes which could not fail to spring up in the exten-
sion of their maritime commerce.
Martin Freccia, who wrote in 1570, speaks of the
naval jurisprudence called the Amalfitan Table as
being in force in his time, and as serving to décidé ail
the maritime affairs of the Kingdom of Naples.﻿WORKS OF THE SIX TEEN TH CENTURY. 7
The Consolato del Mare contains régulations appli-
cable to the solution of commercial and maritime ques-
tions as well in time of war as in time of peace, and
détermines, besides, the respective riglits of belligerent
and of neutral nations. From this point of view it is
a work of great historié and scientific importance. It
waspublished in 1594, at Barcelona.
The Guidon de la Mer is a work much more per-
fect than the preceding. The time of its compilation
is generally placed at the close of the sixteenth cen-
tury. It treats principally of maritime insurance ; it
considers other matters, however, such as prizes, and
letters of marque and reprisai.
In the same epoch with the compilations already
noticed we find a collection entitled: Jtigeme?it de
Damme or Lois de Westcapelle, which contains the
maritime usages established in certain cities of the
Low Countries ; the Coutumes d'Amsterdam, princi-
pally devoted to the usage observed in the ports of the
Baltic; and the Droit Maritime de Wisby, a collection
of maritime ordinances adopted by the town of
Wisby, on the island of Gothland, which many au-
thors regard as more ancient even than the Rôles
d’Oléron, attributed to Queen Eleanor, and named
from her favorite island.
The discovery of America by Columbus affected
international relations in many ways. Hardly was
the discovery known in Europe when the Pope, Alex-
ander Vit, issued his celebrated bull in favor of the
Catholic Kings, in which he declared that in his office
of Sovereign Pontifï, he accorded to King Ferdinand
and Queen Isabella, and their successors, ail the lands
and islands west of an imaginary line drawn from
pôle to pôle, one hundred leagues west of the Azores﻿8
HISTORICAL SKETCH.
and Cape Verde Islands. A second bull of the same
Pope accorded to the Kings of Castile and Arragon,
in the countries discovered and conquered, the same
rights and privilèges as those which the Kings of
Portugal had obtained for their conquests on the
shores of Africa and the Indies.
Towards the end of the same year,—1493,—the
Sovereign Pontiff confirmed, by a third bull, the pro-
visions of the two preceding,—John II. of Portugal
protesting in vain, and claiming that these bulls were
in direct opposition to the concessions primarily ac-
corded by the Holy See in favor of the Portuguese
crown.
This important question, asto the rightof possession
and sovereignty over newly discovered lands, shows
us the character of the political relations which the
States of Europe sustained to the Roman Pontiff; since,
up to the moment of a direct and spécial agreement,
Spain did not hesitate any more than Portugal to
accept entirely the ability and authority of Alexander
VI. to dispose at will of the proprietorship of régions,
whether islands or continents, which the enterprise of
navigation might reveal to the world.
As it was easy to foresce, the authority which the
pontifical chair arrogated to itself on international
questions could not fail in time to lead to serious
results among the several European States. One of
these, and by no means the least grave, was that
which obliged these States to dégradé themselves, in
according to a foreign power the right to meddle
with their reciprocal relations and even their internai
politics.
Regarded in its relations to international law, with
which aspect alone we concern ourselves here, the refor-﻿MA CHIA VELLI—SUAREZ— VICTORIA.
9
mation of Luther and Calvin is one of the most im-
portant events in the history of the world.
It not only inaugurated the giving of constitutions
to the sovereign monarchies of Central Europe ; it
settled the fact that henceforth the relations of people
to people would not dépend on the will of the head of
the Church, and stamped international law with a
positive character which appears in ail the Works of
the authors of this period.
First among the publicists who preceded Grotius
stands Machiavelli.
Gentilis regards II Principe, the great work of
Machiavelli, as a satire on the vices of princes and a
complété exposure of the means employed by tyrants to
sustain their authority.
However this may be, the name of the celebrated
Florentine has served to designate every System of
government and policy having for its basis despotism
and unbridled power, and for its means of action
falsehood, hypocrisy, and proceedings contrary to
equity. The grand fault of Machiavelli is that he com-
pletely divorces politics and inorals. Means are of no
conséquence : he sees only the object to be attained.
Another remarkable publicist of the sixteenth cen-
tury was the Spanish Jesuit, Francisco Suarez, who first
pointed out the distinction between natural law and
conventional principles. He showed that international
law was made up not only of the principles of justice
applicable to the mutual relations of States, but also of
the usages long established in international conven-
tions, and made sacred latterly as the common law of
Christian nations.
An important book was published about the same
time by Francisco Victoria, entitled Peleciiones The-﻿10
HISTORICAL SKETCH.
ologicœ, a work of theological casuistry, in which the
writer treats of the rights which the Spaniards pos-
sessed in the government of the New World, and also
of the rights of war. In regard to the new discoveries
he accords to the Indians the exclusive proprietorship
of their territory. He déniés the right to déclaré
war against pagans on the pretext that they refuse to
admit the doctrines of Christianity, and maintains
that they are only bound to allow the Gospel to be
preached to such as are disposed to hear it.
The work of Balthazzar de Ayala entitled: De Jure
et Officiis BelliciSy is perhaps the most complété treatise
on the principles of war which was published during
the epoch we are now considering.
He recognizes the power of declaring and making
war as an exclusive right of the State, and that neither
rebels nor pirates can claim to be regarded as public
enemies. He says also that a différence of religion isno
just cause of war. Privateering, according to the same
author, partakes of the character of war, and, there-
fore, can be authorized only by the suprême power of
each State.
Albéric Gentilis published, in 1583, a treatise, De
Jure Belli, the terms and spirit of which seem to
hâve suggested to Grotius the idea of his work on the
same subject. Gentilis also brought out, in 1589, a
book on the right of embassy, De Legaiionibus,
which he dedicated to Sir Philip Sidney.
However, neither the works of Machiavelli, nor
those of Victoria, of Ayala, or of Gentilis, embraced a
theory of international law adéquate to this phase of
history. It required a man capable of grasping ail the
great questions which agitated European society in the
sixteenth century, and during the first years of the﻿HUGO GROTIUS.
II
^eventeenth ; a man who was no stranger either to re-
ligion, politics, philosophy, or history, and who, fur-
ther, knew how to give unity and System to his ideas.
The man who was to play this important part in the
history of humanity was Hugo. Grotius.
During the reign of Louis XIII. Grotius came to
France, where he gave himself to his great work, De
Jure Belli et Pacis, which occupied him eighteen
months.
If we may believe Ompteda, this work, first published
in 1624, had in 1758 passed through fifty-five éditions.
Hallam déclarés that it marks an epoch in philosophi-
cal history, as well as in the politics of Europe.
It is, however, far from being a complété work.
Like ail great publicists, Grotius is a man of his time.
His merit lies in his having solved the questions of in-
ternational law ; his defect, in not making the basis of
his work sufficiently précisé. For Grotius, in reality,
the law of war does not exist : in his eyes ail war is
an anti-judicial and anti-social act ; the only thing he
allows is, that when it forces itself into being, one is
bound to respect as much as possible the duties of
humanity ; consequently the principle on which he
has constructed his work is neither justified by nor
founded upon reason.
THIRD EPOGH,
FROM THE PEACE OF WESTPHALIA TO THE PEACE
ofutrecht: 1648—1713.
From the Peace of Westphalia to the Peace of Utrecht,
international politics were ruled by the pretensions of
Louis XIV., who strove not only to extend the limits﻿12
HISTORICAL SKETCH.
of France to the Rhine, but even to seize upon tfte
sovereignty of Spain and her immense colonies.
These struggles were terminated by the Treaties of
Aix-la-Chapelle in 1668, of Nimeguen in 1678, and of
Ryswick in 1697. During this period the United
Provinces allied themselves now to France and now to
England, according as they feared the aggrandizement
of the one or the other of these States. During the
same period England experienced a political révolution.
It was at the time of the Peace of 1648 that the
States of Europe began to sustain among themselves
more intimate relations, so that any changes effected
in one, or any territorial enlargement of another, exer-
ciséd an influence on ail.
It was in this new order of things that the principle
of the balance of power, which finally became the
basis of European international law, had its
origin. But as, in international relations, there
is no principle which does not either contain a
law within itself, or create one with its corrélative
duties, so the principle of European equilibrium gave
birth to the law of intervention.
The resultsof the Peace of Westphalia, permanent as
to their fundamental principles, were not so in their
application. Instead of limiting himself to maintaining
the supremacy of France over the two branches of the
House of Austria, Louis XIV. menaced at the same
time the independence of Holland and Germany, and
the supremacy of Spain in the Low Countries. This
course hastened the Révolution of 1668, and drove
England into the Augsburg League. Another circum-
stance helped to complicate still further the situa-
tion.
The male line of the reigning house of Spain was﻿THE TREATY OF UTRECHT.
13
on the point of becoming extinct with Charles II. The
sovereigns of Austria, of France, and of Bavaria, each
raised the same pretensions to the throne of Spain ;
and although Louis XIV. had rq^ounced ail rights of
the sovereignty at his marriage with the Infanta Maria
Thérèse, he did not hesitate to demand them in favor
of the offspring of this marriage. Europe was in-
terested to oppose his plans, as well as those of the
Emperor of Austria.
The question of succession was finally settled by the
celebrated will of Charles IL, which named as absolute
heir to the crown of Spain, the Duke of Anjou, grand-
son of Louis XIV.; after him the Duke of Berri ; after
him the Archduke Charles of Austria, and after this
last the Duke of Savoy. The acceptance of this will
by Louis XIV. gave rise to the disastrous war which
ended in the Peace of Utrecht in 1713.
This treaty recognized the right of one of the
branches of the House of Bourbon to the crown of
Spain, on condition that this crown should never be
reunited to that of France. It accorded to the House
of Austria the possession of Belgium, Milan, and the
Kingdom of Naples, which had hitherto belonged to
the crown of Spain, and recognized the English Révo-
lution of 1688, guaranteeing the succession of the
English throne to the House of Hanover.
Up to the time of the French Révolution the Treaty
of Utrecht was confirmed by ail the treaties which
followed it. The first great treaty in which no men-
tion was made of it was that of Luneville* in 1801 ;
the Peace of Amiens, in 1802, also passed it by in
silence ; it was mentioned again, and partially re-estab-
lished, in the Treaties of Paris of 1814.
However we look at it, the importance of the Peace﻿14
HISTORICAL SKETCH.
of Utrecht, as affecting European international law
is immense. Wheaton says in his History that the
tnodus vivendi of Central Europe still rests on the
basis of this peace. *
This is no longer exactly true since the war which
France and Italy sustained against Austria in 1859,
and even less so since the wars of 1866 and 1870.
From the Treaty of Nimeguen in 1678 to the war
which she undertook in 1689, to re-establish James
IL on the throne of England, France occupied herself
most assiduously in developing her maritime resources.
The ordinance of 1681 admitted the principle es-
tablished by the Consolato del Marey that the goods of
an enemy carried by a neutral ship are a fair prize;
but rejected the other principle, that neutral goods
under the enemy’s flag cannot be taken.
Spain followed this rule of conduct, whilst the
other maritime nations of Europe held to the more
rational principles of the law of nations, and limited
themselves to the confiscation of enemy’s goods. This
practice, however, fell little by little into disuse, and
the rule that free ships make free goods was generally
observed.
Long before the Peace of Utrecht, England had
recognized in many treaties the law of “free ships,
free goods,” as instances of which we may especially
cite the treaties of 1654 with Portugal, of 1677 with
France, of 1674 and 1688 with Holland.
The two rules, “free ships make free goods,” and
“hostile ships make hostile goods,” were recognized
by Holland and by the treaties of i663between France
and Denmark, and that of 1672 between France and
Sweden. We find them likewise in the greater part of
the spécial conventions regarding commerce and navi-﻿CONTRABAND OF WAR.
15
gation, which hâve been signed since the Peace of
Utrecht, between England and France, Holland and
England, and France and Holland.
At this period, the laws which defined contraband
of war were made more explicit and full. A French
ordinance restricted this species of contraband to
munitions of war ; in the meantime Valin States that
from the commencement of the eighteenth century
pitch and cotton were regarded as contraband of war.
The treaty concluded in 1742 between France and
Denmark included as contraband of war, besides the
things already mentioned, rosin, wood for masts, wool,
ship-timber, ropes, in short, everything made use of
in the building and equipping of ships.
The right of blockade constituted another of the
distinctive features of this epoch. It limits or déniés
the privilège of neutrals to traffic with a besieged
port, of which the réduction is being attempted by a
belligerent.
According to an ordinance issued in 1630, the Es-
tates-General of Holland put the law of blockade
into practice, conformably to those principles which
were later recognized by publicists, and finally sanc-
tioned by the several maritime nations.
The oldest compilations of maritime law admit the
right of search as an inévitable adjunct of the right
to confiscate articles of merchandise.
One of the questions which came up in this period
was that of the free* navigation of the sea, raised by
the unreasonable pretensions of Spain and Portugal,
both of whom, encouraged by the bull of Alexan-
der VI., appeared to wish to assume the sovereignty
of the world. Grotius, in his Mare liberum, résolves
the question on the side of the absolute liberty of the﻿i6
HISTORICAL SKETCH.
sea ; he was the first to oppose the pretensions of the
Portuguese when they arrogated to themselves the ex-
clusive right to the commerce of the Indies. His book
was replied to by Selden, who, in the work entitled
Mare Clausum, sustained and sought to justify the pre-
tensions of ths English Government to the sovereignty
of the seas called British.
France persistently refused to acknowledge this
sovereignty claimed over the British seas ; and in
1689 put forth an ordinance on the subject, which
was made soon after one of the pleas of the English Gov-
ernment for declaring war on her.
After a long and vigorous résistance Holland came
to accept, at least impliedly, the sovereign right which
England arrogated to herself over the seas which
washed her shores ; but this isolated fact neither con-
stitutes a justification nor a precedent in favor of the
doctrine held by Selden.
The maritime leagues which were formed toward
the close of the sixteenth century and about the be-
ginning of the seventeenth forced the Danish Govern-
ment to moderate its unreasonable charges, and to
lower the Sound dues.
Among the more remarkable publicists of this period
we find Pufïendorf, a disciple of Grotius. He pub-
lished in 1672 his book entitled De jure naturæ et
gentium, which he foliowed with an abridgment, De
officiis hominis et civis.
The work of Pufïendorf, althôugh confessedly infe-
rior to that of Grotius, marks, nevertheless, an advance
in the growth of international law.
An English jurist, Doctor Zouch, published in 1650
an epitome of international law, which he entitled
Juris et judicii fecialis, sive juris inter gentes et quæs-﻿RE SU LT S OF THE UTRECHT TREATY. 17
iionum de eodem, explicatio. This jurist was the first who
design ated our science by the words jus inter g entes,
and it is from this expression that the term Interna-
tional Law h as since been derived.
In the same epoch lived Hobbes, born in England
in 1588 and deceased in 1679. In his work De cive,
he treats of the fundamental principles of civil society,
and argues that the State of nature is a State of per-
pétuai war.
Jean Loccenius brought out in 1651 his work De jure
maritimo et navali. This book, justly esteemed, is
often cited by the authors who hâve written on kindred
subjects.
In 1666 Charles Malloy published in England the
first édition of his work entitled De jure maritimo et
navali, which achieved such popularity that in the
space of ten years it passed through nine English
éditions.
FOURTH EPOCH,
FROM THE PEACE OF UTRECHT TO THE CLOSE OF THE
seven years’ war : 1713—1763.
The Treaties of Utrecht gave peace to Europe for
more than twenty years. But in 1739 a war arose
between England and Spain, in which France took
part five years later.
About the same time the death of the Emperor
Charles VI. rekindled hostilities in • the centre of
Europe. Bavaria, Sardinia, Spain, Prussia, and Sax-
ony contended for the sovereignty of the German
Empire, while Prussia claimed possession of Silesia.
The strife was prolonged until 1748, when the Con-
gress of Aix-la-Chapelle made an end of it by con-﻿i8
HISTORICAL SKETCH.
firming the treaties of Westphalia and Utrecht, with
certain modifications.
The Peace of Aix-la-Chapelle was, however, of short
duration : soon war burst forth anew between Eng-
land and France, while Prussia and Austria entered
into the mémorable Seven Years' War.
One of the most noteworthy results of the SevenYears’
War was the confirmation of the Prussian monarchy,
which thereafter became the counter-balance to the
power of Austria in Germany. It is from this time also
that we date the military and naval décliné of Spain.
Still another important event of this historié period
was the acknowledgment of the Russian Empire as an
European State.
The two great wars of which we hâve been speak-
ing gave rise to numerous contests relative to the
rights of neutrals and belligerents in the matters of
commerce and navigation ; France, by her ordinance
of the 21 st of October, 1744, recognizing the dual
rule, “ free ships make free goods” and “ hostile ships
make hostile goods.”
In the course of the maritime war waged between
France and England at this epoch, the latter power
sought to establish the principle that neutral States
are prohibited from engaging, in time of war, in a
traffic interdicted in time of peace; but this rule,
called De la Guerre de 1756, fell into disuse during
the struggle maintainedby the United States of Amer-
ica to achieve their independence. The question of
maritime law, which above ail others demanded atten-
tion in this epoch, was that of the capture of neutral
vessels. Hubner had made this a profound study, iu
his book, De la saisie des bâtiments neutres, pub
lished in 1759.﻿PUBLICISTS OP THE FOUR TH EPOCH.
l9
The diplomatie relations of the European States
were still very far from attaining that character and
development which they reached in tim^s more nearly
approaching our own. The sovereigns frequently
raised questions of precedence, and debated as to the
positions which the republics and other secondary
States ought to occupy. The influence which the soi-
disant divine right of kings still enjoyed made it diffi-
cult to admit that a government based on popular suf-
frage merited the same respect as a dynastie govern-
ment. To introduce in this regard a more rational
principle into European international law, nothing
more was necessary than the appearance of the Eng-
lish republic, which, by virtue of the persevering ef-
forts of Cromwell, obtained a diplomatie considération
equal to that of the monarchical States.
The period included between the Peace of Utrecht
and the Seven Years’ War, marked as it was by the
resolution of numerous questions of international law
and by very important changes in the political situa-
tion of the States of Europe, was not less fruitful in
celebrated publicists.
Wolff was born in Silesia, in 1679. His treatise on
the law of nations, Jus gentium, published in 1749,
was an abridgment of a great work which had
appeared in 1740-43 in nine quarto volumes. Wolff
has the merit of being the first to separate the principles
of the law of nations from those which pertain to in-
dividual morals.
The writings of Wolff on the law of nations were
popularized by Vattel, who gave them a lighter form
and rendered them accessible to the generality of
readers. Vattel was not, however, a servile imitator
of his master : he differed with him on more than﻿20
HISTORICAL SKETCH.
one fundamental point. The work of Vattel, Le
Droit des gens, ou principes de la loi naturelle appliquée
aux nations et aux souverains, is c.ited much more fre-
quently than that of Grotius, although its relative merit
is much less. Vattel was born in 1714 and died in
1767.
Bynkershoek must be considered as the most re-
markable publicist of his time. In 1702 he wrote his
treatise De dominio maris j in 1721 his De foro lega-
torumj and in 1737 his Questiones juris publici. The
relations of belligerent nations and neutrals in time of
war are treated in a masterly manner. As much may
be said of the portions relating to the binding force of
international law.
According to Bynkershoek, international law is de-
rived “ ex ratione et usu,” from reason and usage,—
the usage founded on treaties and spécial ordinances.
John Theophilus Heinicke, called in Latin, Heinec-
cius, born at Eisenberg in 1681, and deceased in 1741,
devotedhis entirelife to useful works on jurisprudence,
philosophy, and belles-lettres ; but it is above ail as
a jurist that he is celebrated. His voluminous writings
published at Geneva from 1744 to 1771 under the
title : Opéra ad univé'rsam jurisprudentiam, philosophiam,
et litteras humaniores pertinentia, fill nine quarto vol-
umes. Although he may not hâve deduced from it
ail the logical conséquences, we may say that Heinec-
cius took the principle of utility as the foundation of
natural law, which he considered as identical with the
will of God, who wished that ail men should be
happy. In general, the writings of Heineccius added
to a profound philosophical spirit an essentially prac-
tical character, which make them an instructive study
even in our day.﻿P U B U CI S T S O F THE FO U R TH EPOCH.	21
Montesquieu’s L'Espidt des lois appeared some time
before Vattel published his book on international law.
He argued therein that the law of nations was based on
the considération that nations ought in time of peace
to do each other ail the good in their power, and in
time of war ail the harm possible. He urged further
that victory is the thing fought for, and that the object
of war is either conquest or defence.
Thomas Rutherforth, professor at Cambridge, Eng-
land, published in 1754 his work entitled Institutes
of natural law. According to this author the law of
nations is natural law applied by the positive agreement
of ail civil society. This principle once admitted,
Rutherforth shows that the requirements of inter-
national law are only those of sound reason.
Mably was born at Grenoble in 1709, and died in
1785. He devoted his entire life to the studies of
history and politics, in which he acquired a great ré-
putation. In 1771, to satisfy the request that the Pôles
made of him to devise laws for them, he p iblished his
book entitled Du gouvernement de la Pologne : and
some years later, the American Congress having asked
‘ him to préparé a draft of a constitution, he wrote his
Observations sur le gouvernement et les lois des États-
Unis d'Amérique.
These writings of Mably, theprinting of the greater
part of which was prohibited in France, exercised a
great influence on theFrench Révolution, which closely
followed their publication. Among those which treat
of législation and politics, the most important was his
Droit Public de TEurope Fondé sur les Traités, Geneva,
1748.
The ideas put forth in this work were in flagrant
opposition to existing institutions. Enthusiastic for﻿22
HISTORICAL SKETCH.
the republics of antiquity, and especially for that of
Lacedemonia, Mably favors community of goods and
equality of condition : many economists hâve con-
sidered him as one of the fathers of modem commun-
ism. This book is a useful résumé of the diplomatie
history of the period it covers, and so much the more
since the author, who had taken part in important in-
ternational negotiations, has rendered the work at-
tractive by the relation of numerous and curious inci-
dents of the greatest interest.
At the beginning of the last century several of the
principal States of Europe published documents drawn
from their public archives, and designed to furnish in-
formation in regard to their particular history, as well
as that of other States, so far as it was connected with
their own ; but, excepting the Codex of Leibnitz, no
work was in existence which might serve as a general
guide in the study of diplomacy. This lack was sup-
plied by the Corps Diplomatique of John Dumont,
historian of the Emperor of Austria.
This collection fills thirteen folio volumes ; the first
eight constitute the portion published by Dumont,
who died in 1727 ; in these eight volumes are con-
tained the treaties concluded by the States of Europe
since the time of Charlemagne. In 1739 another
folio volume appeared, giving the old treaties, from
the Amphictyonie Council (496 B. C.) to the
times of Charlemagne, compiled by Barbeyrac (born
in 1674, deceased in 1747) and four others, under
the title of Supplément au Corps Diplomatique de Du-
mont, published by Rousset de Missy (born 1686, de-
ceased 1762).
Valin published at La Rochelle, in 1766, a Com-
mentaire sur V Ordonnance de la Marine du mois al Août,﻿FIFTH EPOCH.
23
1681, which was authorityon the subject, especially as
to the subject of maritime prizes.
Pothier, who has gained a deserved réputation in
France by his works on civil law, especially by his
treatise, De la Propriété\ gives prominence also to the
question of maritime prizes.
Bertodano published at Madrid, in 1740, a collec-
tion of treaties, beginning with the year 1598, and
ending with 1700. The édition of 1796 has added
the treaties concluded as far down as 1737.
J. J. Burlamaqui was born at Geneva in 1694. He
wrote many works, among which his Principes du Droit
Politique, his Principes du Droit Naturel et des Gens,
and his Éléments du Droit Naturel are deserving of
mention.
FIFTH EPOCH,
FROM THE SEVEN YEARS’ WAR TO THE FRENCH REVO-
LUTION : 1763—1789.
The partition of Poland inaugurâtes this epoch of
international law. Publicists are agreed in pronouncing
this act the most odious international crime which
has been committed since Europe emerged from a
State of barbarism.
A short time after the first dismemberment of the
Kingdom of Poland, Central Europe was disturbed by
the contest between Austria and Prussiâ for the suc-
cession to the throne of Bavaria. The war was of short
duration, and was ended in 1779 by the Peace of
Teschen, which confirmed the stipulations of the Peace
of Westphalia.
The free navigation of the Scheldt was made an
issue between the governments of Austria and Holland,﻿24
HISTORICAL SKETCH.
which was settledbythe Treaty of Fontainebleau of the
8th of November, 1785.
A little while after the conclusion of this treaty,
Prussia undertook to meddle with the affairs of Hol-
land, by taking sides with the Stadtholder. France
declared herself opposed to this intervention : but
withdrew her opposition when she learned that Eng-
land intended to support the daims of the Stadtholder.
Ail occasion for strife having thus been removed,
Holland, Prussia, and Engl and concluded, on the i5th
of April, 1788, the Treaty of Triple Alliance, which en-
sured the continuance of the power of the House of
Orange until 1795, and exerted indirectly a great in-
fluence on the affairs of Europe.
The assertion of their independence by the English
Colonies of North America in 1776 was an event of
great importance in the epoch now under review.
France recognized the young Republic by the ratifi-
cation of two treaties on the 6th of February, 1778,
one of amity and commerce, the other of eventual
défensive alliance.
The French government informed England of the
conclusion of these treaties, and justified her conduct
by alleging that the United States had actually won
their independence, and that France was not securing
to herself any exclusive advantage.
In their Treaty of 1778, France and the United
States had sustained the rule of “free ships make free
goods.” A French ordinance of the 2Ôth of July of
the same year extended the application of this principle
to ail neutral States.
In the month of February, 1780, the Empress of
Russia transmitted to England, France, and Spain a
note in which were stated the principles which were to﻿ARMED NEUTRALITY.	25
serve as the basis of armed neutrality. A résumé of
these principles is as follows :
1.	Neutral ships may pass freely from port to port,
on the shores of nations at war ;
2.	Goods and effects belonging to subjects of the
belligerent States go free in neutral vessels, provided
they be not contraband of war ;
3.	The Empress of Russia refers for the définition
of contraband of war, to articles ten and eleven of the
Treaty of Commerce made between herseif and England
in 1766.
4.	Only those ports shall be considered as block-
aded which are so closely and permanently guarded
by ships of war as to make the entrance of them evi-
dently dangerous.
Denmark and Sweden were the first to accept these
principles : this they did in 1780. Holland, the United
States of America, Prussia and Austria followéd in
1781, Portugal in 1782, and the two Sicilies in 1783.
To avoid the dangers to which she was exposed by
armed neutrality, England proposed to Holland to
enter, with the médiation of Russia, into a spécial
treaty, based on that of 1674. These negotiations
amounting to nothing, the English government con-
tinued to apply to neutrals, during the remainder of
the War for Independence of the American Col-
onies, the principles by which she had hitherto gov-
erned herseif, with the single exception of those in-
cluded in the Réglé de la gtterre de 1756.
By the Treaty of Peace, which she signed at Ver-
sailles in 1783, England at length recognized the inde-
pendence of the United States.
As to the free navigation of neutrals, so far as it con-
cerned England, France and Spain, the Peace of Ver-﻿26
HISTORICAL SKETCH.
sailles limited itself to confirming the stipulations made
in 1713 by the Treaties of Utrecht.
The United States on their part adopted the rule of
“free ships make free goods,” and “hostile ships make
hostile goods” in the Treaties which they signed in 1783
and 1785.
Among the publicists of this fifth historical epoch,
J. J. Moser, Lampredi, and Bentham deserve spécial
mention.
Moser was born at Stuttgart in 1701, and died in
1785. In 1749 he founded at Hanau an academy for
young men who were destined to a diplomatie or ad-
ministrative career. His principal work was entitled,
Versuch des neuesten Europdischen Vôlkerrechts in
Friedens-und-Kriegszeiten, etc. : this book was de-
signed to give the general principles of the law of na-
tions in the light of the most recent discussions and
acts connected with the international relations of Euro-
pean nations.
Lampredi was born in Italy in 1761, and died in
1836. His most important work is entitled, Juris naU
urœ et gentium, 1782, Pisis.
From 1786 to 1789 one of the most celebrated Eng-
lish writers, Bentham, published, in developing the
ideas which constitute his utilitarian System, various
fragments on international questions. He is, moreover,
the author of a project for perpétuai peace, the realiza-
tion of which has been urged by many societies organ-
ized in England and the United States. Bentham wa*
bom in 1749, and died in 1832.﻿EFFECTS O F THE FRENCH RE VOL UTION. 2 J
SIXTH EPOCH,
FROM THE FRENCH REVOLUTION TO THE PEACE OF
PARIS AND THE TREATIES OF VIENNA :	1789---
1815.
The French Révolution disturbed the international
relations of ail the European States, and made its in-
fluence felt even in America.
The first political question which came up between
France and her neighbors was in regard to the right
of intervention in the internai affairs and governmental
changes of independent nations.
Commerce and maritime international law were
affected from the very origin of the struggle by the
rebound of the wars occasioned by the Révolution of
1789. The allies believed that the best means of com-
bating the new ideas, and of preventing their further
extension, would be to reduce the Republic by famine,
by denying to ail ships access to the ports of France.
By way of retort to these violent proceedings the Na-
tional Convention decreed that French shipmasters
might bring into the ports of the Republic ail vessels
laden either with provisions belonging to neutrals and
destined for hostile ports, or with goods belonging to
the enemy.
During this combined effort against France, British
cruisers seized many French cargoes shipped under
the United States flag. When France called upon the
American Government to oppose these proceedings
and maintain the privilèges of its flag, it was replied
that England was following out her own législation,
and consequently the United States had not the power﻿28
HISTORICAL SKETCH.
to oppose this interférence with French commerce.
As a means of retaliation, the Directory was led to pass
a new decree in 1796, which declared ail neutral or
hostile cargoes captured under the American flag by
French privateers to be legal prizes.
About the same time a discussion of like nature and
not less important for the rights of neutrals sprang up
between the Prussian Government and that of the
United States. The treaty of the nth of July, 1799,
between these two powers, which put an end to this,
established anew the rule, “ Free ships make free goods.”
Toward the close of the last century Russia proposed
to Denmark, Prussia, and Sweden to enter into a treaty
to renew the armed neutrality of 1780.
These States in due time came to an understanding,
and concluded among themselves separate treaties,
which constituted a sort of quadruple alliance.
England, looking upon this as an act of aggression,
issued an embargo against the vessels of Russia, Sweden,
and Denmark, and sent a notice at the same time to
the Courts of Copenhagen and Stockholm that the ap-
plication of the principles of 1780, which they pre-
tended to establish, being contrary to her dearest
interests, would not be tolerated by Great Britain.
Action soon followed the menace : an English squad-
ron was sent to the Baltic, which destroyed the vital
strength of the quadruple alliance, and procured its
renunciation.
The French Révolution in a few years changed the
face of Europe. The System created by the Treaties
of Westphalia and Utrecht 110 longer existed. The
old Republics of Holland, of Venice, and cf Genoa had
disappeared ; the Bourbons had been forced to abdi-
cate in Spain and at Naples ; the House of Braganza,﻿CONGRE SS O F VIENNA.
29
expelled from Lisbon, was established in Brazil ; the
old German Empire had given place to the Confédéra-
tion of the Rhine ; and finally, the Spanish colonies of
America,had made themselves independent States.
Europe at this epoch was under moral obligations to
set herself against the pretensions of the French Em-
pire to universal monarchy. The true motive of the
allies in this coalition against the formidable power
concentrated in the hands of Napoléon I. and his
family showed itself clearly in the Treaties of Paris
of the 3oth May, 1814, and of the 2oth November,
1815. By these treaties, designed to regulate and fix
the territorial status of the several European nations,
France was reduced to the limits which she had in
1690.
The fîrst secret article of the Treaty of the 3oth May,
1814, declared that Austria, England, Prussia, and
Russia reserved to themselves the free disposition of
those territories which France had given up in article
three of the open treaty : the second secret article
provided that the King of Sardinia should acquire the
Republic of Genoa ; and finally, article four declared
that the country situated on the left bank of the Rhine,
and forming a part of France since 1791., should go to
increase the territory of Holland, and to indemnify
Prussia and the other States of Germany.
These provisions would constitute, however, merely
the basis for the re-establishment of the peace of
Europe. The duty of devising and adoptingmeasures
to make this peace as stable as possible was committed
to a Congress which was to meet at Vienna. «The
first intention of the four great allied powers was to
dispose, without Consulting any of the other States
represented in the Congress, of the territory taken﻿30
HISTORICAL SKETCH.
from France ; butthey soon perceived the inextricable
difficultés against which they would hâve to struggle
if they held to this course : so it was agreed that a
committee of direction should be constituted, com*
posed of the représentatives of Austria, Spain, France,
Great Britain, Portugal, Prussia, Russia, and Sweden.
The results of the Congress of Vienna may be
stated briefly as follows :—A part of Saxony was
transferred to Prussia ; the previous partitions of Po-
land were confirmed, the Grand Duchy of Warsaw
being assigned to Russia ; Cracow was made a free
city under the common protection of Russia, Austria,
and Prussia ; Austria gained the Lombardo-Venetian
kingdom, and also recovered most of the territory she
had ceded to France by the treaties of 1797, 1801,
1805, 1807, and 1809 ; the Kingdom of Naples was re-
turned to Ferdinand IV.; the King of Sardinia re-
sumed possession of Piedmont and Savoy, with the
addition of the Republic of Genoa ; Belgium, Hol-
land, and the Grand Duchy of Luxembourg formed the
new Kingdom of the Netherlands.
The Congress of Vienna completed its work of re-
construction by perfecting the constitutions of the
German and Swiss Confédérations. And besides ail
this, many very important questions in international
law were settled.
We may mention—ist, the determining of the rank
and classification of public ministers ; îd, the abolition
of the African slave trade ; and, 3d, the free naviga-
tion of the rivers traversing the territories of many
différent States.
George Frédéric de Martens, who was first prcfessor
of law at Gôttingen, then Counsellor of State of the
Kingdom of Westphalia under the reign of Jerome﻿WRITERS OF THE SIX TH EPOCH. 31
Bonaparte, and finally Minister of Hanover to the
Diet of the German Confédération, published in 1785
his Primæ lineæ juris gentium Europœarum practici,
which served as the groundwork of his Précis du
droit des gens moderne de VEurope, fondé sur les
traités et V usage.
Although this work appeared some years before the
French Révolution, it must take a place among the
notable publications of the period now under considér-
ation, because of the close connection which exists be-
tween it and the other works on international law
which this author published during the time of the
First Empire,—among which may be particularly
mentioned the Cours Diplomatique, appearing in 1801,
containing a collection of official documents, and the
international conventions entered into by the European
powers and the United States ; a treatise on privateer-
ing, and a history of events relating to différences be-
t’ween European powers.
In 1795, Dominico Alberto Azuni published his
Sistema universale dei principii del diritto maritimo
delV Europa, a work of great worth : it was translated
into French in 1797, and into English in 1806.
Koch represents the historié tendency that pervades
the writings on international law during this epoch.
See his Abrégé de Vhistoire des traités de paix, 1796.
Savigny is the leader of the historié school of Ger-
man jurists. Devoted to the study of Roman law, he
follows its progress step by step, and sketches the con-
dition of things in the Middle Ages, and their influence
on modem times. In ail the international questions
on which he touches, he holds much more to the his-.
torical precedent than to the idea or principle which
is its foundation.﻿32
HISTORICAL SKETCH.
Along with these publicists we may also speak of
Sir James Mackintosh, Dow, Rayneval, Horne, Jouf-
froy, Hall, Warden, Flassan, Ward, Tetens, Frick, and
Count Merlin de Douai.
For the period from 1789 to 1815, attention mustbe
especially directed to the decisions and judgments of
the courts on subjects pertaining to international law.
For these judicial opinions, constituting to some ex-
tent the Foundation of a national jurisprudence, rest
generally on the most elevated considérations, and thus
create precedents of very great value.
SEVENTH EPOCH,
FROM THE CONGRESS OF VIENNA TO THE PRESENT
time : 1815—1878.
After the Congress of Vienna, ail Europe, exhausted
with the great wars of the French Révolution and of
the First Empire, entered upon an era of tranquillity.
The times of conauests and international wars seemed
past. But rivalries for power came soon to life again
in another sphere. These concerned the internai
administration of the States, the development of
political institutions, and the right demanded by the
people of participating more or less directlv in the gov-
ernments which presided over their destinies.
The first notable thing that characterizes this
seventh historié epoch is the conclusion of the
celebrated treaty called the Holy Alliance, between
the monarchs of Austria, Prussia, and Russia.
This treaty,signed at Paris the 2Ôth of September,i8i5,
by Francis II. of Austria, Frederick William III. of
Prussia, and Alexander I. of Russia, in person,without
the intervention of any plenipotentiary, received on﻿THE HOL Y ALLIANCE.
33
the içth of November, 1815, the adhesion of Louis
XVIII. of France, and soon after, that of nearly ail the
other sovereigns of Europe. The Prince Regent of
Great Britain alone refused to send a formai con-
currence, for the reason that the Holy Alliance had
been concluded directly between the sovereigns, while
the English constitution provided that treaties must
be countersigned by a responsible minister. The
Holy Alliance, as the Baron F. de Cussy h as justly
remarked, was Christian morality applied to govern-
ment, and to the policy to be observed between sover-
eigns: it was less a véritable treaty than a manifesto
declaring the détermination of the princes signing it
to take for the future, as the rule of their conduct,
whether in the administration of their States, or in
their political relations with other governments, only
the precepts qf the Christian religion—the precepts of
justice, of charity, and of peace.
The history of modem times shows plainly that this
proclamation of abstract principles weighed very
lightly on the minds of the sovereigns who had
launched it forth upon the world, and that it nowhere
exerted any beneficent influence, either on the internai
politics of States, or on the development of inter-
national law.
The troubles which marked the return of the Bour-
bons to the Kingdom of Naples furnished the allied
governments the first opportunity to apply their anti-
liberal principles, and to put in practice the new policy
of foreign intervention inaugurated by the Congress of
Aix-la-Chapelle and elevated into a principle of
conventional law by the treaties of Troppau and
Laybach.
England and France having refused their co-opera-﻿34
HISTORICÂL SKETCH.
tion, Austria, Prussia, and Russia undertook to put
down the popular insurrection, and to re-establish
absolute monarchy
The Congress of Verona, in 1822, authorized the in-
tervention of France in Spain, with the formai consent
of the courts of Vienna, Berlin, and St. Petersburg,
and in spite of the protest of the British government.
The conclusion of the Vienna Congress exercised
considérable influence on the question of recognizing
the independence of the Spanish and Portuguese
colonies in America, and provoked spirited discussions
among the several maritime powers.
The position taken by the United States in the
proclamation of the celebrated Monroe Doctrine ex-
erted a décisive influence on the conduct of the Eng-
lish government, and contributed not a little to pre-
vent the European States from following out their
project of aiding Spain to recover her transatlantic
possessions.
Ail the time protesting against the interférence by
other States in the troubles and insurrectionary move-
ments which had agitated the kingdoms of Naples and
Spain, England did not hesitate to intervene herself
with an armed hand in the internai affairs of Portugal.
It is true that in justification of this departure from
the principle of non-intervention which she had vainly
endeavored to force upon her old allies of 1815, she
invoked at once the cpnventional obligations which
bound her to the Court of Lisbon, and the interests of
her commerce and her industry.
The revolutionary spirit with which Europe was
laboring during the first half of this century burst
forth in the Morea, in the islands of the Archipelago,
and on the borders of the Danube, in the year 1821.﻿THE GREEK RE VOL UTION.
35
The Greek Révolution furnished a pretext to Russia
for another interférence in the afïairs of the Ottoman
Empire, and for seeking to establish the prépondérance,
already great, which the Greek religion had secured in
the East. The other European States, however, un-
derstanding the danger there would be in allowing the
successors of Peter the Great to monopolize the de-
fence of the Christian people living under the sceptre
of the Sultan, interfered effectively, as well at St.
Petersburg as at Constantinople; and the treaty con-
cluded between Russia and Turkey on the 7 th of Octo-
ber, 1821, limited itself to the stipulation of certain
administrative guarantees in favor of the rayas estab-
lished in Servia.
With a view of settling more definitely the real
Greek question, England and France, having an un-
derstanding with Russia, signedat London, on the 6th
of July, 1827, a general and formai treaty for the
pacification of Greece. This pacification, and the
récognition of the independence of the new kingdom
by the Porte, was not, however, immediately realized.
To attain this double object it was necessary, on the
one hand, that the allied squadrons should destroy the
Turco-Egyptian fleet, which they did in the Battle of
Navarino, and on the other, that Russia, taking arms
in favor of the co-religionists, should impose on Tur-
key, in 1829, the Peace of Adrianople; and, finally,
that France should send to the Morea an expedition-
ary corps, which compelled Ibrahim Pacha to with-
draw his troops into Egypt, and prevented any ag-
gressive return of the Ottoman forces.
The émancipation of Greece did not put an end to
the internai difficultés of the Ottoman Empire.
Egypt, under the powerful lead of Mehemet Ali, and﻿HISTORICAL SKETCH.
36
his son Ibrahim Pacha, strove in her turn to gain her
independence. In the train of two great victories
gained in Asia Minor, the Viceroy seemed on the point
of demanding terms of peace under the vcry walls of
Constantinople, Through the intervention of the
great Powers this new conflict was suspended pro-
visionally by the Convention of 1833, and finally set-
tled in 1840 by the Treaty of London, which assured
to the family of Mehemet Ali the hereditary govern-
ment under the suzerainty of the Porte.
The circumstances in the midst of which the resto-
ration of the Bourbons was accomplished in 1814, the
reactionary and exclusively monarchical or aristocratie
spirit which signalized the acts of the elder branch,
and finally the rôle which France had been called upon
to play on the Continent in face of the absolutist policy
of the other States, had long been preparing the dynas-
tie révolution which occurred in Paris in the month of
July, 1830, and raised King Louis Philippe to the
throne.
The rebound of this change of government and
policy in France soon made itself felt in Europe by a
senes of popular risings, struggles for national émanci-
pation, and for administrative or other reforms. The
signal given by Belgium was echoed first in Germany
and Poland, and presently in Italy and Spain. One
of the great principles proclaimed by the Révolution of
July was ihat of non-intervention in the internai affairs
of other States.
This precious safeguard of the independence and
sovereignty of States, which had been so utterly ignored
by the Congresses of Vienna, Aix-la-Chapelle. Verona,
Troppau, and Laybach, had, doubtless, been stili more
pointedly discarded in the practice ot certain rations,﻿EFFECT OF THE RE VOL UTION OF 1830.	37
but from this poini at least it was solemnly affirmed as
a right, and sustained even by events. Thus, when
Prussia indicated her intention of aiding the King of
Holland to put down the Belgian revoit the govern-
ment of Louis Philippe declared that it would oppose
this even by ’Orce of arms ; and again, when Austria
interfered in the Romagna to restore chose provinces
to the authority of the Holy See, France seized the
citadel of Ancona, and kept a garrison there untii the
Austrian troons had abandoned the territory of the
Church and recrossed the Po.
The Belgian Révolution of 1830, in impairing the
Kingdomof the Netherlands, which thetreaties of 1815
and the acts of the Congress of Vienna had consti-
tuted to serve as a barrier to the eventual encroach-
ments of France served naturally to grouse the atten-
tion of Europe and to call out the intervention of the
great powers. At the demands of the provisional gov-
ernment established at Brussels, the plenipotentiaries
of Austria. France, Great Britain, Prussia, and Russia
assembled in conférence at London, where after. long
deliberation they perfected the treaties which sanc-
tioned the definite séparation cf Belgium from the
Netherlands, and her independence and perpétuai neu
trality
Great Britain, not having been able to obtain at the
Congresses of Vienna and Verona a proclamation of
the immédiate abolition of slavery in ail the European
colonies in America, sought to accomplish the same
end in an indirect manner, and devoted herself persist-
ently to the prévention of the slave-trade on the
coasts of Africa. After long negotiations, she in-
duced France to adopt her views, and secured her
adhesion to two conventions, one in 1831, the other in﻿HISTORICAL SKETCH.
38
1833, which ail the other maritime powers of the Con-
tinent were successively invited to sign. These con-
ventions, with a view to the more efïficacious abolition
of the trade, provided for the establishment of a com-
mon fleet of cruisers to arrest the slavers, and accorded
a reciprocal concession of the right of search upon
su ch ships as might be suspected of being engaged in
the traffic.
The conduct and pretensions of Great Britain on
the matter of the slave-trade, and that of the search
for naval deserters, gave rise to sharp discussions be-
tween the Cabinets of London and Washington as to
the privilèges of the flag, and the extension of the
right of search tomerchant-ships. These negotiations
continued until 1841, when Great Britain, Austria,
France, Prussia, and Russia signed a general treaty
for the absolute suppression of the slave-trade. This
treaty, not having been ratified, possessed little value
as an historié precedent; however, the principles on
which it rested aided England materially in overcom-
ing the opposition of the American government, and
in securing the adoption of the Treaty of Washington,
of the çth of August, 1842, by which the United
States, waiving the question of the suspension of their
domestic slave-markets, and leaving unsettled the
question of the right of search, agreed to prevent
their flag from being improperly used to protect the
slave-ships of other nations. One of the results of
this convention was the signature by France and Eng-
land, on the 29th of May, 1845, of a treaty which put
an end to the System of cruisers commissioned to ex-
ercise the right of search, which these two powers had
establisned by the conventions of 1831 and 1833.
The most important international events which﻿REVOLUTION OF 1848.
39
transpired in America during the period now under
considération, were the annexation of Texas to the
United States, which gave rise to the war between the
latter and Mexico, ended in 1848 by the treaty of
Guadaloupe Hidalgo ; the cession by Mexico to the
United States of Upper California and New Mexico ;
and, lastly, the several filibustering expéditions raised
in the United States against Cuba, Nicaragua and
Sonora.
At the time when these events were occurring in
North America, the Southern half of the continent was
the scene of that double intervention of England and
France on the borders of the Rio de la Plata, which
so seriously injured European commerce, complicated
so unfortunately the situation of the Argentine Re-
public, and that of Uruguay, and resulted in nothing
further than the récognition by the two allied powers
of the dictatorial authority of General Rosas.
The year 1848 was marked in its early days by the
fall from power of the younger branch of the Bour-
bons, and the establishment in France of the Repub-
lic, which, however, disappeared in 1852, to give place
to the Empire of Napoléon III. During its brief ex-
istence, the second French Republic was at least able
to proclaim certain international principles which had
been up to that time too much ignored, in particular
that of the sovereign right of nations to modify their
government and their public internai law, without the
interférence of other States.
The reactive effect of these great movements made
itself felt throughout almost ail Europe, the old mon-
archies were compelled to yield to the current of new
ideas, to transform their superannuated institutions,
to extend the exercise of political rights, in short, to﻿40
HISTORICAL SKETCH.
admit their people to a direct participation in the
management of affairs and in the defence of their
most sacred interests A passing allusion, only, can be
made to the efforts of Italy to recover her indepen-
dence, the war against Austria, the révolutions in Tus-
cany and Naples, the rising of the Roman States
against the Holy See, the proclamation of the Roman
Republic, the French expédition to reinstate Pope
Pius IX. in Rome, the insurrections in Poland and
Hungary, and finally the revolutionary explosion which,
on the ruins of the old Germanie Confédération, has
erected a new German Empire, and thus gave to Ger-
many that unity and centralized power to which it
has for so long a time aspired.
The violent shocks of the Révolution of February
were succeeded by a comparative calm, and the Gov-
ernments of Central Europe, especially those of Austria
and Prussia, seemed to hâve recovered their stability :
Russia deemed this a favorable time to satisfy her
covetous ambition against Turkey. In 1854, suddenly
declaring war against the Sultan, the Czar Nicholas
crossed the Pruth with his armies and invaded the
Danubian Principalities : but soon France and Eng-
land, joined by Sardinia, gave their support to Turkey,
to repuise this aggression, and after two years of war
in the Crimea and in Asia Minor, compelled Russia to
sign at Paris the Treaty of Peace of March 3oth, 1856.
Another event exerted a very great influence on the
situation of Europe : this was the establshment of the
Kingdom of Italy, as a conséquence of the war which
Sardinia, assisted by the armies of France, declared
against Austria in the month of June, 1859, and which
was ended on the ioth of Novemberin the same year,
by the Peace of Zurich.﻿WARS IN AMERICA, A SIA, AND EUROPE. 4I
The civil war in the United States from 1860 to
1865, the French intervention in Mexico, the disas-
trous strife between Spain, Chili, and Peru, and finally
the long contest sustained by the combined forces of
the Argentine Republic, the Republic of Uruguay,
and the Empire of Brazil against the Government of
Paraguay, may also be mentioned as events of im-
portance, which hâve exercised or are still exerting
great influence on the general situation of the American
States and their international relations.
The wars undertaken by Great Britain and France
in the Celestial Empire and Japan secured the opening
of the ports of the extreme East to the commerce of
ail Christian nations.
The Treaty of the 2 2d of August, 18615, between
Trussia andAustria is one of the greatest events of the
présent epoch, by reason of the influence more or less
direct which it has exerted on the general situation of
Europe,
The abandonment by Austria of that portion of the
old Lombardo-Venetian Kingdom which the Treaty of
Zurich had left in her hands, her exclusion from ail
participation in the management of German afïairs, and
finally, the establishment of the constitutional and ad-
ministrative autonomy of Hungary, and the effort for
the union of the représentative institutions of the
Austro-Hungarian monarchy on more liberal founda-
tions, hâve been, on that side, the médiate or im-
médiate conséquences of the war of 1866. On the
Other side, that is to say, for Prussia, the results of the
Peace of Prague hâve been very considérable : they
appear in a great augmentation of territory by the in-
corporation of Hanover, the Duchies of the Elbe, of
Hesse and Nassau, and the acquisition of a prepon-﻿42
HISTORICAL SKETCH.
derating influence in Central Europe, by virtue of the
substantial constitution given to the new North Ger-
man Confédération.
The establishment of the German Empire, and the
Franco-German war of 1870-1, influenced the inter-
national politics of Europe to an extent that deserves
fuller notice than can be given in this connection.
The effects of these important events will be discussed
later in this work.
It is too soon to estimate the results of the last war
between Russia and Turkey. It may be regarded,
however, as another step in the downward course
which the Ottoman Empire has pursued during the
last fifty years.
The period from 1815 to 1878 counts a great
number of distinguished publicists.
Wheaton is generally accepted as one of the most
eminent publicists of modem times.
He was born in the United States in 1785, and died
in 1848. After having practised law at Providence,
R. I., and afterwards in New York up to 1816, and
having filled the office of Reporter of the Suprême
Court of the United States up to 1827, he occupied
successively the positions of Minister of the United
States at the Courts of Copenhagen and Berlin ; and by
virtue of his double character of jurist and of a man
practically versed in public affairs he secured for his
works a réputation that was also fully justified by
their merit. In 1815 Wheaton brought out his first work,
the Digest of the law of maritime captures, or prizes, a
practical work grounded on a complété analysis of the
decisions pronounced by the courts of different coun-
tries, especially those of England and theUnited States,
on the question of prizes.﻿WHEA TON—KL UBER—HEGEL.
43
In 1841 Wheaton published at Leipsic the first
édition of an essay presented at a meeting of the
Academy of Moral and Political Science of the Institute
of France, and having for its title, Histoire des progrès
du droit des gens en Europe depuis la paix de West-
phalie, jusqu'au congres de Vienne, of which he pub-
lished in 1846 an édition considerably enlarged, under
the new name of VHistoire du droit des gens en
Europe et en Amérique depuis les temps les plus reculés
jusqu'au traité de Washington en 1842, which was
everywhere regarded as the most complété work on
the subject that had been published up to that time.
This work was the necessary complément of that
which he had published some years earlier (London,
1836), The éléments of international law, and which
from the moment of its appearance took rank as a
classic. Many éditions of this last-named book hâve
appeared in America, in England and in Germany; also
a translation into French, in 1848, the year in which
the author died. It has since been translated into the
leading languages of Europe, and into Chinese.
Wheaton’s works hâve been edited and annotated by
Mr. Wm. Beach Lawrence, formerly United States Min-
ister at London, and also by Mr. Richard H. Dana,
Jr., of Boston.
In 1819 John Louis Klüber, a German publicist
(born in 1762 and deceased in 1837), published in
French his treatise, Droit des gens moderne de VEurope,
bringing out two years later a German édition greatly
modified and enlarged. Klüber’s work is a valuable
book of reference.
Hegel, in his Grundlinien der Philosophie des Rechts
(Berlin, 1821), argues that war is necessary, morally
justifiable, and constitutes an important element of﻿44
HISTORICAL SKETCH.
progress ; that the idea of war has an existence as
much as the idea of life, of a plant, of a man, of a
spirit.
It is in following out this same principle that Proud-
hon, in his work entitled La guerre et la paix, has
corne to sustain the legality of force ; in other words,
to proclaim that might makes right.
James Kent, born in 1768 and deceased in 1847,
published in 1826 his Commentaries on anierican law,
in which he not only sets forth the jurisprudence of
the United States and the municipal laws of the sev-
eral States which composed the Union, but also dis-
cusses the principles of international law.
From the character of his work, Chancellor Kent
could give only a summary treatment of this subject :
and the brevity of his remarks is the more to be re-
gretted since they are marked by great lucidity.
Baron Charles de Martens has undertaken to con-
tinue the works of his uncle G. F. Martens, the author
of the Précis du droit des gens moderne de VEurope,
deceased in 1824.
Taking as his model and point of departure the his-
tory commenced by his uncle of the différences be-
tween the powers of Europe, he published in 1827
Causes célébrés du droit des gens, an interesting compi-
lation, in which one may find accounts of some of the
most curious discussions that hâve taken place as to
the prérogatives of embassadors and the rights of neu-
tral commerce.
Baron Charles de Martens also published, in 1832, the
Guide diplomatique, or Précis des droits et des fonctions
des agents diplomatiques et consulaires.
This book may be regarded as the manual of young
diplomats, for the use of whom it is especially designed.﻿BELLO—GARDEN—STOR Y.
45
One of the most remarkabJe men whom Spanish
America has produced was André Bello, born at Ca-
raccas (Venezuela) in 1780 and deceased in 1863.
Bello has acquired a deserved réputation both as a
statesman and as an author : he has touched upon
science, philosophy, jurisprudence, and législation,
treating ail in a superior manner.
In 1832, profiting by the expérience of international
affairs he had gained in the discharge of his duties as
secretary of various Venezuelan légations in Europe,
and in the elevated position which he occupied in the
direction of the foreign relations of Chili, Bello pub-
lished an elementary treatise under the title of Prin-
cipios de derecho de gentes.
Bello was the first to point out the insufïïciency of
the principles laid down by Vattel, and to attempt to
supply what was needed. He may be regarded as the
forerunner of Wheaton, the North American publicist,
who has quoted him freely.
In 1833 the Count de Garden published his Traité
complet de la diplomatie, and in 1850, an édition of his
Histoire générale des traités de paix et autres trans-
actions, etc.
Judge Story published in 1834 his Commentâmes on
the conflict of laws, in which he reviewed very many im-
portant questions of international law This book is
frequently quoted by jurists.
The Traité de droit i?iternational privé of Foelix, a
lawyer of Paris, in which will be found most of the
principles laid down by Story, has a just claim to be
regarded as authority in our science.
In the first rank of works which should be taken up
in the study of international law, stands the work of
Heffter, professor in the University of Berlin, Pas﻿HISTORICAL SKETCH,
46
Europdische VÔlkerrecht der Gegenwart, 1844, which
digests in a very few pages ail the essential questions,
and makes their compréhension easy, in a manner as
clear as it is methodical.
Pinheiro Ferreira has taken rank among publicists
by his Cours du droit public, which appeared in 1845.
He has annotated Vattel and Martens, and has also
published many articles on international questions in
the Revue étrangère de législation.
Captain Ortolan has treated the questions of mari-
time international law in a scientific manner, and his
book, Règles internatio7iales et diplomatie de la mer, is
worthy ot notice.
Doctor Phillimore, counsellor of the British admi-
ralty, published in 1847 his treatise on The laws of
domicile, and in 1854 and 1861, his Commentâmes on
international law. These two works are equally valua-
ble, and always consulted with profit.
Hautefeuille published in 1848 his work entitled
Droitsct devoirs des nations neutres en temps de guerre
7naritime. We are also indebted to the same author for
a Histoire des origines, des progrès, et des variations du
droit mariti77ie international (1858,) and also a work en-
titled Questions de droit mariti77te international (1868).
These three works hâve a wide réputation.
Among the works particularly relating to maritime
law we must not omit to mention the remarkable Traité
des prises maritimes which MM. Pistoye and Duverdy
published in Paris at the outset of the war in the East,
a new édition of which appeared in 1859.
Contemporary Spain has also made her contribution
to oui science. Among the more important works ap-
pearing in these times in the Peninsula, we ought to
mention Elementos de derecho politico international,﻿CA U CH Y— WOOLSE Y.
47
con explication de todas las réglas que constituyen el
derecho international Espagnol, by Don Antonio Ri-
guelme, Madrid, 1849.
The most complété works on the subject of con-
sultes, and of highest authority, are those of De
Clercq and De Vallat. The one is entitled Guide
pratique des consulats, the other Formulaire des Chancel-
leries diplomatiques et consulaires.
Le droit maritime internatinal considéré dans ses
origines et dans ses rapports avec les progrès de la civil-
ization, by M. Eugène Cauchy, a member of the Insti-
tute of France, a work approved by the Academy of
moral and political sciences, is perhaps the most
learned treatise on the subject now extant.
The work most widely used in the United States
as a text-book in colleges is the Introduction to the
study of international law, designed as an aid in teach-
ing and in historical studiesy by Théodore D. Woolsey,
lately President of Yale College. First published in
1860, this valuable treatise has passed through four édi-
tions, the last appearingin 1875, revised and extended
by the author.
An édition of this work has been published in China
this year (1878), translated into Chinese by W. A. P.
Martin, LL.D., President of tKe Impérial College of
China.
The following works of value hâve been given to
the public by William Beach Lawrence, LL.D., for-
merly Minister of the United States at London. Visi-
tation and Searchy Boston, 1858 ; Lawrence's Wheatony
Boston, 1863; Eisabilities of American women abroady
New York, 1871 ; Commentaire sur les éléments du droit
international, etc.y Leipsic, 1868-1873.
Among the most recent works on the rights of neu-﻿HISTORICAL SKETCH.
48
tral States in time of war is that of Doctor Gessner,
published in 1865, under the title, Les neutres sur mer.
M. Bluntschli, of Zurich, professor of law in the
University of Heidelberg, a jurist who enjoys a great
réputation in Germany, the author of many works of
highest merit, among which especial mention should
be made of his Deutsches Staats-wôrter Buch, Stuttgart
and Leipsic, 11 volumes, 1857-70, and his Allege-
meines Staatsrecht, 2 volumes, Munich, 1863, has under-
taken a difïicult task: that of condensing, arranging, and
summing up in the compact form of a code, the ensemble
of fixed and précisé precepts which forms the sub-
stance of international law as it is generally accepted
at the présent time. This wrork, originally published
at Nordlingen, in 1868, in German (Bas moderne vôlker-
recht der civilisirten Staaten als rechtsbuch dargestellt)
was published in Paris in 1770 (Droit international
codifié).
The following works, which we hâve only room to
mention, will be found useful for reference: Commen-
tâmes on the law of nations, by W. Oke Manning (Lon-
don, 1839); A treatise on private international law, or
the conflict of laws, by John Westlake (London, 1858):
International law, or rules regulating the intercourse
of States in peace anU war, by H. W. Halleck (San
Francisco, 1861); The law of nations considered as in-
dependent political communities, by Travers Twiss, pro-
fessor of law in the University of Oxford, and coun-
sellor to the Queen of England (Oxford and London,
1861-1863): Del rispetto délia propriété privata fra-
gli stati in guerra, by Ercolo Vidari, professor of com-
mercial law in the University of Pavia (Pavia, 1867);
Nouveau droit international public suivant les besoins de
la civilisation moderne, by Pasquale Fiore, professor of﻿ORTOLAN, DALLOZ, A S SE R, ETC
49
the law of nations in the University of Pisa ; Des
moyens d'acquérir le domaine intet national, ou propriétée
d'état entre les nations d'apres le droit des gens public,
etc, etc., by Eugene Ortolan, doctor of laws attached
to the ministry of Foreign Affairs (Paris, 1851);
Répertoire méthodique et alphabétique de législation de
doctrine çt de jurisprudence en matière de droit civil, com-
mercial y criminel, administratif ' de droit des gens et de
droit public, by MM. Dalloz (44 volumes quarto, Paris
1845-1870) ; Revue de droit international et de législation
compareé\ published by MM. T. M. C. Asser, advo-
cate and prof essor of law at Amsterdam ; G. Rollin
Jaquemyns, advocate of the court of appeals at
Ghent ; J. Westlake, barrister at law, Lincoln’s Inn,
London, with the assistance of many jurists and states-
men (Ghent, 1869), Vol. I ; and the Encyclopoedie der
Rechtswissenschaft in systématiseher und alphabetischer
Bearbeitung, by Frantz von Holtzendorff, the fïrst
volume of which, comprising the theoretical portion
and the statement of principles, appeared in Leipsic
in 1870 ; A Treatise on the law of Extradition, by Ed-
ward Clarke, London, 1874 : First Platfo?~m of Inter-
national Law, by Sir Edward Creasy, M. A., London,
1876.﻿CHAPTER I.
GENERAL PRINCIPLES AND SOURCES OF INTER-
NATIONAL LAW.
E are to understand by the term Law of nations,
or International Law, the entirety of the mutual
obligations of States; that is to say, the duties to each
other they are bound to fulfil, and the rights which,
one of another, they may properly demand.
Pinheiro Ferreira has justly remarked that binding
laws, rights, and duties exist as well for nations as for
individuals.
“The only différence,” says he, “between citizens
assembled in a national body, and the nations
of the earth, is that the former appeal for the seule-
ment of their strifes to their legislators and their
judges, while the latter seldom resort to such means
of conciliation, preferring to employ force to détermine
their différences: but since no one will undertake to
say that right is derived from might, we must admit
that prior to the appeal to force, there exist rights on
the one hand and duties on the other.”
Consequently, there are, according to Pinheiro Fer-
reira, rights and duties in no way depending on force,
and independent of ail législation, which constitute
what is commonly called the law of nations.
It is difïïcult, not to say impossible, to give a com-
plété and absolutely satisfactory définition of inter-
national law, for this reason, among others, that the﻿DIVISION OF INTERNA TIONAL LA WS. 5 1
law is changed or modified, according to the progress
of civilization. It is this, doubtless, which suggested
to Wheaton the following general formula: “ Inter-
national law, as understood among civilized na-
tions, may be defined as consisting of those rules
of conduct which reason deduces, as consonant
to justice, from the nature of the society existing
among independent nations ; with such définitions
and modifications as may be established by general
consent.”
Although this définition possesses the advantage of
having provided for changes and advances, it has
the defect of setting forth rather the origin than the
nature of law: this is what we think is avoided in
ours, which in its succinct form, includes as well the
reforms to corne as those past or présent.
Grotius divides law into the natural and the volun-
tary: subdividing voluntary law into the human and
the divine.
Vattel divides international law into the necessary
and the voluntary, into internai and external, into con-
ventional law, common and positive.
According to Martens, the positive law of nations is
either that of usage or is conventional, and public ex-
ternal law constitutes only a branch of international
law.
As is évident, these définitions are somewhat arbi-
trary : and are only to be followed as far as they serve
to indicate the sources of international jurisprudence,
or to discuss the nature and character of the laws
which détermine the relations of States.
In his work De jure belli ac pacis, Grotius takes for
the basis of his System, natural law,/zw naturale, and
expresses himself thus : “Natural law is a product of﻿52
GENERAL PRINCIPLES.
that right reason which enables us to see that an act,
according as it is or is not conformed to the reason of
nature, is or is not morally necessary, and is or is not
forbidden by God, the author of nature.”
“ But,” adds this author, “ we must not confound nat-
ural law and the law of nations. International law has
its foundation in the interests of the nations, in the
rules established for the advantage and convenience,
not of one State or particular nation, but for that of ail
countries.”
Puffendorf does not admit the existence of a posi-
tive law of nations different and distinct from natural
law. In his view ail international rights rest equally
on natural right ; the privilèges of ambassadors, even,
hâve no other origin. The great inconvenience of this
doctrine is the almost inévitable confusion which arises
between morals and law, and which even constrains
the disciples of this school to regard international law
as belonging to the sphere of moral science.
Bynkershoek bases the law of nations upon reason
and the usage established by treaties and ordinances.
‘‘The ancient jurists,” he says, “déclaré that the law
of nations is what is considered by ail civilized nations
as being conformed to the dictâtes of reason.” “ Inter-
national law is a presnmption founded upon custom, and
the presumption loses its force whenever a contrary
will has been for some time manifested. That is why,
in the case of the privilèges of ambassadors, they can-
not be enjoyed if it has been previously declared that
they will not be accorded to them. An expressed will
destroys the force of a mere understanding to the
contrary.”
The principles of the law of nations can only be
applied to those who accept them by at least a tacit﻿WOLFF AND VA T TEL.
53
agreement. This doctrine of Bynkershoek, which rec-
ognizes the absolute power of States, gives to interna-
tional law a foundationas uncertain as the caprice or the
will of a sovereign; and if we accept this construction
of it, everything in the sphere of international rela-
tions will be at the same time just and unjust, legal
and illégal.
We must turn to Wolff, the master of Vattel, to find
a System of international law more reasonable and
more complété.
Wolff divides international law into voluntary law,
founded on the presumed consent of nations; conven-
tional law, based on expressed consent; and the law of
usage, which rests on a tacit consent. According to
this author, the foundation of voluntary international
law is the grand republic of ail nations, established by
nature herself, and of which every State forms a part.
The System of Vattel differs from that of his master
in the principles which he lays down for the foundation
of international law, and which gives his work a char-
acter of novelty. “Wolff,” he says, “dérivés this law
from a sort of great republic (civitatis maximœ)
instituted by nature herself, and of which ail the
nations of the earth are members. Voluntary inter-
national law would then be nothing other than the
civil law of this great republic. As for me, I do not
recognize any natural society as existing between
nations other than that which nature has established
between ail men. One thing is always essential to
civil societies, namely, that each member of a
society should relinquish in favor of the social body
a portion of his rights, and there should be a power
capable of governing ail the individuals, of giving
them laws, and of coercing those who refuse to obey.﻿54
GENERAL PRINCIPLES.
Now, we cannot acknowledge the existence of a similar
order of things among nations. Each State considers
itself as sovereign, and is, in fact, independent of ail
the others.”
It is from the independence and liberty of nations
that Yattel dérivés the force of treaties, even of those
which are concluded in défiance of natural law, and he
cornes thus to the enunciation of the principle of
voluntary international law, a fundamental point of
différence between his System and that of Wolff.
He acknowledges also the conventional law of
nations, which is binding so far as any engagement
exists, and which is on this account a particular and
spécial law, to be in the same category with the law of
usage. But what is most important to observe is that
the grand resuit of the works of Vattel has been to
prove that the foundation of international law is in
natural law, whatever modification this last may hâve
been subjected to in its application to international
relations.
Heffter States his views as to the basis of interna-
tional law in the following language : “ Resting at first
upon necessity, or on purely material wants, this law in
its development dérivés its authority and its utility from
morality : it discloses in its operation an end strictly
moral, after having freed itself successively from its im-
pure éléments. Founded upon the general consent,
either expressed or understood, or at least presumed, of
a certain association of States, it dérivés its force from
this common conviction that each member of the as-
sociation, in analogous circumstances, would feel the
need of acting in the same way, for reasons either
material or moral. International law, however, is not
developed under the influence of legislative power, for﻿CH ARA CTER OF INTERNA TIONAL LA IV.	55
independent States recognize no common authority upon
earth. It is the freest law in existence ; it is privileged
even to execute its own decrees by an organic and in-
dependent judicial power. It is public opinion which
serves as its organ and administrator ; it is history
which by its judgments confirms the justice of its de-
crees, and pursueslike Nemesis ail infractions of its prin-
cipes. It receives its sanction in that suprême order
which, in creating the State, could neither proscribe not
limit human liberty, but had opened the whole earth to
the human race.
“To assure to the general development of humanity
in the reciprocal intercourse of peoples and States a
solid foundation is the mission which international
law is charged to fulfil ; to this end it joins the States
in one vast union, from which no one can withdraw.”
Wheaton gives as the foundation of international
law, on the one hand the treaties and conventions of
States, and on the other the principles of justice applica-
ble to the relations of independent nations. Wheaton
thus places himself between the two great schools that
since the seventeenth century hâve divided the domain
of international law: schools that were always endeav-
oring, the one to found the law of nations upon the
absolute principles of the idea of justice, considered in
this or that way, and the other to base it upon
treaties, conventions, or actual laws, admitting in either
case the absolute independence of the States in con-
cluding these treaties and conventions.
Phillimore takesthe same view, agreeingwith Whea-
ton in basing international law upon treaties and the
principles of justice.
Other publicists and philosophers hâve made inter-
national law to rest on the interest of the State.﻿GENERAL PRINCIPLES.
56
Bentham is one of the most distinguished représen-
tatives of this school.
The law of nations, regarded in a positive and prac-
tical point of view, is not universally extended. It is
almost limited to the States of Europe and America :
this is why very many authors hâve qualified it as the
public law of Europe, or hâve limited its application to
those peoples who march at the head of civilization.
Notwithstanding this, it is undeniable that ail nations,
by the mere fact of their existence and their entrance
into relations with others, recognize an international
law.
The binding force of international law rests, however,
on a foundation quite different from that of civil or
political law. Some publicists set up this distinction :
rejecting the term international law, they only allow
that of international rules. Ortolan, for example, en-
titles his treatise on maritime international law Règles
internationales, etc. But there seems to be no practical
difficulty in applying here the word law. Are there
not moral laws, physical laws, laws of quantity, etc. ?
There are, besides, points of international law so clearly
defined as to leave no doubt as to their obligatory
character : as, for example, in the case of piracy, A
State guilty of this crime loses its place among civilized
nations, and is liable to suffer immediately the consé-
quences of its conduct.
While publicists generally agréé in their énuméra-
tion of the sources of international law, they are found
to differ with regard to their classification and relative
importance. We may notice especially between writers
of North America and England, and those of Central
Europe, a great différence of opinion as to the value
and legal authority which they accord to the decisions﻿SOURCES OF INTERNA TIONAL LA W.
57
of the courts. This disagreement arises from the dis-
similarity of the political and administrative Systems
which control the countries to which the several au-
thors respectively belong. A judicial decision is con-
sidered in England and the United States as an évident
proof of the just application of law. Among the mon*
archical countries of the continent of Europe judicial
decisions do not enjoy tne same authority, and it hap-
pens often that European publicists accord greater
weight to the opinions of publicists than to decisions
rendered by the courts.
To détermine the relative importance of the sources of
international law, it is necessary, then, to hâve regard to
the spécial conditions of the interior organization of
each state.
Undoubtedly the most copious source of interna-
tional law is found in the works of publicists. An
indispensable condition to the acceptance of a work
as a source of international law, is that it should pro-
ceed from a recognized authority. “ In cases where
the principal jurists agréé,” says Kent, “the presump-
tion will be very great in favor of the solidity of their
maxims ; and no civilized nation, that does not arro-
gantly set ail ordinary law and justice at défiance, will
venture to disregard the uniform sense of the estab-
lished wnters on international law.”
But it is not necessary that publicisas should be
unanimous in the expression of their opinions. Their
disagreement offers even a certain evidence of
impartiality, and it is on this account that in inter-
national différences we freqùently cite those authors
who wrote before the occurrence of the conflict for
the solution of which their opinions are invoked.
When the publicists of a state are opposing the pre-﻿GENERAL PRINCIPLES.
58
tensions of their government, we may, without fear of
being mistaken, draw a powerful inference against the
justice of these same pretensions.
Treaties concluded between nations constitute in
general the most effective and the most legitimate
manifestations of international law. In a strictly legal
sense the binding force of treaties and conventions
rests only on the contracting parties. Butwhena treaty
modifies the requirements of an existing law, or settles
a practical question which has given rise to great
différences of opinion, its effects are felt first by the con-
tracting parties, but afterwards by the other States who
sustain relations with them.
The history of wars, of treaties of peace, and of
commerce, of negotiations of every kind between States,
is another of the leading sources of international law.
It is true that history, being, by itself considered,
only the manifestation in time and space of the laws
of the human mind, présents a character of instability
and incertitude. On the other hand, if we can gather
from it a complété uniformity in the practical solu-
tions of questions of like nature—a resuit not difïïcult
of realization for a determinate period—we shall
certainly hâve, in any given case, an argument of con-
sidérable weight.
To the history of treaties and international negotia-
tions must be added State papers and diplomatie
correspondence.
As a source of practical information these documents
possess an importance beyond comparison; as sources
of international law they constitute an invaluable
precedent, even though it be not absolutely conformed
to strict justice.
Still another source of international law is found in﻿SOURCES O F INTERNA TIONAL LA W.
59
the laws and ordinances of sovereign States affecting
the questions which concern maritime prizes in time of
war.
The decrees and decisions also of courts which try
prize cases are entitled to considération as sources of
international law : but it is necessary to détermine
whether the principles on which such decisions are
based are of a local or general character ; for it is only
in the latter case that they can be considered as per-
taining to international law. We must also, in study-
ing the decrees and judgments of prize courts, not fail
to keep in view the influence which considérations of
patriotism must sometimes exert upon the judges.
In Continental Europe, prize courts are generally
constituted at the instance and by the direct action of
the executive power : this tending perhaps to weaken
the authority of their decisions as a source of interna
tional law. In the United States and Great Britain
these tribunals are composed of independent judges,
appointed for life, and removable only in case of mis-
demeanor. The United States laws concerning mari-
time prizes are binding upon the courts charged with
determining the validity of captures. These tribunals
do not then dépend directly upon the executive power;
there is great profit therefore in Consulting their de-
cisions, which, especially in the late war betvveen the
United States and the Southern Confederacy, hâve had
to do with a great number of cases, and with questions
of the highest interest.
In naming the sources of international law it is
proper to accord to the judgments of local courts in
regard to public external law the same considération as
to the decisions of prize courts. The courts of other
countries find it of great assistance, in similar cases﻿6o
GENERAL PRINCIPLES.
which may come before them, to cite the authority of
these decisions, and regard them, if not absolutely con-
clusive in law, at least as eminently calculated to throw
light upon and to strengthen their decrees.
We mayconsult with profit the commercial laws and
régulations of different States, and the instructions and
orders given in time of war to naval officers. The
decisions of State courts in the United States are also
often of great value.
The weak point in decisions of prize courts and
local tribunals, as well as that of commercial régu-
lations and maritime ordinances, is the presumption
of partiality which attaches to them, since they ail
emanate from the power of the State, an interested
party.
The decisions of arbitrators charged with the duty
of determining international questions hâve, therefore,
a greater importance than the decisions which emanate,
for example, from a prize court.
When a question arises between two States, the in-
terested governments often refer it to jurists or lawyers
expressly appointed. Apart from their character as
solutions of questions in litigation, these consultations
hâve always a great value, especially when their con-
clusions are contrary to the pretensions of the govern-
ment that has called for them, and when a question is
raised by a nation strong enough to maintain its daims
by force of arms.
In the énumération of the sources of international
law, some authors hâve named others than those already
mentioned. Thus Halleck thinks that the best foun-
dation on which we can base the rules of conduct to
be observed between nations is the divine law, or the
fundamental principle of justice, to which he applies﻿SOURCES OF INTERNATIONAL LAW. 6l
the définition of Roman law : Constans et perpétua vo-
luntas jus suurn cuique tribuendi.
Roman law has also been sometimes included as
among the sources of international law.
It may doubtless be invoked as a precedent by those
nations which, in the absence of codes, are obliged to re-
sort to the corpus juris civilis for the settlement of their
controversaries and the détermination of their rights;
but, however important they may be in a legal point
of view, the laws of ancient Rome cannot, without very
great difficulty, be applied to the international relations
of modem nations.
Ortolan, in his book, Réglés internationales et diplo-
matie de la mer makes a theoretical classification of the
sources of international law into three groups: ist?
Reason, which enables man to distinguish between jus-
tice and injustice; 2d, Usage; 3d, Public treaties.
Heffter admits no other sources of international law
than the acts from which the policy of a State may be
inferred and public treaties.
Taking a most practical view, Wheaton has cited
nearly ail the sources of modem international law; he
fails to speak, however, of State papers, of diplomatie
correspondence and of the decisions of local courts in
matters relating to the law of nations, and includes in
the same group the decisions of courts of arbitration
and the decrees of prize courts.﻿CHAPTER IL
ESSENTIAL ATTRIBUTES OF A STATE.
SECTION I,—SOVEREIGNTY.
MOST modem authors accept Cîcero’s définition
of the word nation:—Respublica est coetus
multitudinis, juris consensu et utilitatis communione
sociatus. Vattel says: “ Nations or States are those
bodies politic or societies of men which seek to
advance their well-being and their common advantage
by uniting their forces.” This définition, like ail that
hâve been more or less directly drawn from that of
Cicero, cannot be accepted without many essential
qualifications.
It is plain that if a nation is nothing more than a
union of individuals with a view to the common interest
and advantage, then the company formed by English
merchants to carry on commerce with India, and every
other company organized in our day with the purpose
of advancing the interests of its members, must be re-
garded as a nation. To admit literally the définition
of Cicero, or that of Vattel, would compel us to
acknowledge that an association of robbers or pirates,
which had for its object mutual security and advantage,
constituted a nation or State.
The définition of Vattel présents another grave dif*
ficulty in this, that it confounds the conceptions of a
nationality and a State, which should be kept perfectly
62﻿NA TI ON AND ST A TE.	63
distinct. We comprehend easily the fact of a State
governing different nationalities, and vice versa.
Austria, for instance, is a State that governs an un-
counted numberof distinct nationalities, and Poland,in
a sense a nation, is subjected to foreign domination.
Although the State, as the suprême source of law
for its people, may corne little by little to assimilate the
nationalities which compose it, by effacing différences
and reconciling antagonisms, we must never confound the
State with the nation so far as to regard them under
ail circumstances as one and the same thing.
The word “ nation,” as is indicated by its etymology
(nasci) refers us to a condition of birth, of origin, it im-
plies a community of race characterized usually by a uni-
formityof language, of manners and customs, and often
also of spécial aptitudes of a particular genius: the ag-
glomération within a greater or less extent of territory, or
even in disconnected portions of the earth, of men united
to one another by these common characteristics consti-
tutes a nation. And although usage has led to the em-
ployaient ofthis word “nation” as the synonym, in many
instances, for the word “state,” it is often used in the
manner above explained. As for instance, we speak of
the Choctaw and Cherokee nations of Indians,while their
lands and their people are practically under the control
of the state known as the United States of America.*
* Usage in the United States, as it regards the import of the words
“state” and “ nation,” makes it difficult to express, precisely, the dis-
tinction indicated above. The term “ state” having been assumed by
the colonies entering into the Union of 1787*05 an expression of the in-
dependent sovereignty each claimed to exercise before the Union was
formed, and this name having been retained after the création of the
general government, it has become settled usage to speak of the United
States as a “ nation although the Union is more properly a state, in
the full meaning of the word, than any of the so-called States which
compose it.﻿64	ESSENTIAL A T TRI B U TE S O F A S TA TE.
The existence of a State présupposés certain indis-
pensable conditions. It is presumed to possess, as
the basis of stable society, the power of maintaining its
indepmdence, and to be clothed with authority to
direct its afifairs toward the accomplishment of the end
for which it was organized. Cioero says that in order
to the récognition of a people as the enemy of another
people it is necessary that it should be a State, should
hâve a législature, a public treasury, the support of its
citizens, and their authorization to conclude treaties of
peace and alliance.
It is not necessary to the existence of a State that its
territory should be contiguous, or situated on one and
the same continent. We must understand by the word
State ail the possessions of a nation, in whatever places
they may be located, and whatever may be the distance
that séparâtes them. Vattel has formulated the foliowing
important rule on this subject:—“ Whenever nothing
to the contrary has been ordained by legal enactment
or by treaty, whatever we may say of a nation applies
equally to its colonies.”
The government of a State can sustain two kinds of
fundamental relations: those which pertain to public
internai law, and those which belong to public external
law, this including ail that concerns its relations with
other States.
The power which pertains to every State of determin-
ing the manner of its being, of formulating its pro-
visions of law, in a word, of constituting the State and
the government according to its own idea, or the object
it seeks to attain, is what is meant by State Sover-
eignty.
The essential character of sovereignty does not dé-
pend upon a state’s being more or less dépendent on﻿S TA TE SO VEREIGNT Y.	65
another State, but rather on its ability to give itself a
constitution, to détermine its laws, to set up its govern-
ment, etc., without the intervention of any foreign
nation. This sovereignty may, moreover, be modified
and in a certain sort defined by conventions and
treaties, without ceasing on this account to be sover-
eignty. The dependence of one State upon another is,
to be sure, a limitation of its sovereignty ; but it is not
an absolute surrender of it.
The union of two or more States is a thing of frequent
occurrence in the history of nations. If the associated
States create a new state, of which each of them is only
a constituent element, it is plain that the States hâve
lost their exterior individual sovereignty, although they
may hâve severally retained the most of their essential
rights.
If these States do noterect a new central power, they
necessarily preserve their former international status.
Since these unions and confédérations of States hâve
given rise to many important questions, it will be in-
structive to consider the more essential results that
hâve flowed from such combinations.
The personal union of separate States under one
ruler does not involve the extinction of the in-
dividual sovereignty of the States thus united, provided
these States hâve effected this according to the
principles of complété legal equality.
The Kingdoms of Sweden and Norway are united
under one dynasty : but they hâve constitutions, laws,
and administrative governments quite distinct, this
does not hinder their being represented in their inter-
national relations by one and the same sovereign, the
King of Sweden and Norway.
The Swiss canton of Neuchâtel for a long time﻿66 ESSENTIAL A TTRIB UTES OF A STA TE.
formed part of the Helvetian Confédération, while ac-
knowledging the King of Prussia as its sovereign, but
without on that account being considered as incorporated
into the great kingdom of the North. A similar con-
dition of things existed at another period between the
Kingdoms of England and Hanover, and England and
Ireland.
A union of States, umo civitatum, under one suprême
chief, is actual when the individual sovereignty of each
merges itself into the générai sovereignty which is the
lesult oï the union. This second sort of union is ef-
fected when the destinies of the combined peoples are
completely blended. The Empire of Austria, leaving
out Hungary, is the most characteristic instance of
such a union.
The union effected by incorporation produces, so
far as it concerns the external sovereignty of States,
the same effects as those of an actual union. In both
cases the individual sovereignty of each is absorbed
by the general sovereignty, or by that of the incorpo-
rating State: thus a nation which merges itself in another
relinquishes the right it possessed to regulate its for-
eign relations, to déclaré war, to conclude treaties : in
a word, the nation ceases to exist. The incorpora-
tion by England of the ancien t Kingdom of Scot-
land is an instance of this sort of union.
When several sovereign States hâve united them-
selves by means of a compact, they may form either a
confédération properly so-called, or a suprême fédéral
government.
If the conditions of the compact are such that each
of the associated States préserves its sovereignty, the
right to govern itself by its own laws, obliging itself only
to execute within its own limits the general measures﻿INCORPORA TION—CONFEDERA TION. 67
discussed and adopted with regard to certain common
questions, or spécial interests, this forms a System of
confederated States. If, on the other hand, the govern-
ment established is sovereign and suprême in the
sphere of its authority, with power to act directly, not
only upon the associated States, but even upon the
citizens of each, the union is called a fédéral govern-
ment.
Confederated States enjoy an outside sphere of ac-
tion in which they can sustain diplomatie relations with
other nations, while federated States, having by the
institution of a suprême and central executive power
given birth to a new sovereignty, can neither form nor
sustain outside relations.
The old Germanie Confédération created by the
compact of 1815 illustrâtes from an international law
point of view the significance of the System of con-
federated States.
In the North German Confédération, which came
into being in 1866, tendencies to State unity were very
apparent, these tendencies leading a few years later to
the formation of the existing German Empire, which
présents few, if any, of the features of a confederated
State.
The Swiss or Helvetian Fédération is the most an-
cient now in existence : its origin dates back in fact to
the sixteenth century, although it can properly date
only from the year 1648, when Switzerland, at the time
of the Peace of Westphalia, was recognized by a public
act of the European powers as an independent State.
The cantons are sovereign powers in so far as their
sovereignty is not abridged by the fédéral constitution,
and as such they exercise ail rights which hâve not
been delegated to the fédéral government.﻿68 ESSENTIAL A T TRIE U TE S OF A ST A TE.
Official relations between the cantons and foreign
governments are sustained through the intervention of
the fédéral council; the cantons may, however, hâve
direct intercourse with the inferior authorities and em-
ployés of a foreign State in regard to certain specified
matters.
The Fédération alone hasthe right to déclaré war, to
make peace, and to enter into alliances and treaties
with foreign nations, particularly treaties relating to
customs and commerce.
The most prominent instance of a confederated State
is that of the United States of America. A confédéra-
tion formed in 1643 by four colonies, under the name
of the “United Colonies of New England” was the germ
of union between the English settlements of North
America, a germ which did not remain unfruitful, since
in 1754, when war arose between France and Great
Britain, the Fédération embraced ail the colonies which
Great Britain then possessed from New Hampshire to
Georgia; the fédéral bond, however, was nothing more
than an alliance for the common defence against attacks
from without (from the Indians, and the French in
Canada and Louisiana).
The current of events, however, in the American
colonies, led to the graduai strengthening of this union,
which gave place at length, after undergoing several
modifications, to the Constitution of 1787, the adoption
of which followed soon after the successful termina-
tion of the revoit of the colonies against the mother
country.
The Constitution of 1787, in virtue of the relinquish-
ment by the States of the sovereignty which they
had up to that time retained, strengthened the bonds
which united them, with the view of forming a com-﻿THE UNITED STATES OF AMERICA.	69
pact and strong union. Establishing a suprême gov-
ernment and concentrating the executive power in the
hands of an authority emanating from the votes of
the citizens of ail the States, it made of the old Ameri-
can fédération an aggregated State, the sphere of whose
authority extended at once over ail the mem-
bers of the union, and over ail its citizens, giving it
thus, by means of an organization intermediate between
pure federalism and centralization, a cohésion, a unity
sufftcing to form a homogeneous entity, without in the
mean time annihilating the respective autonomy, the
vital liberty, the essential activity of each of the inté-
gral parties to the aggregation.
Neither dependence, as it has been considered, nor
accidentai influence, nor the payment of tribute, can
affect the sovereignty of a State so far as to exclude it
from international relations, or to cause it to disappear
as a member of the society of nations. It is the same
in regard to a protectorate, provided, however, that this
does not degenerate into actual incorporation. For
this it is necessary, on the one hand, that the State
which places itself under the protection of another
State should reserve expressly and in ail cases the right
to govern itself and to pass such laws as it may think
proper; and, on the other hand, that the convention or
spécial treaty establishing the protectorate should dé-
termine the relations which are to exist between the
two peoples, and define ail the rights which the pro-
tecting State assumes.
Half-sovereign States lack some of the essential
rights of sovereignty. Hertius calls them “quasi-roy-
aumes.” They corne so far within the range of interna-
tional law that they can sustain diplomatie relations
with other States. In time of war they generally share﻿JO ESSENTIAL A T TRI B U TES OF A S TA TE.
the situation of the nation on which they dépend; in
time of peace they are obliged to hâve permission from
the superior State in order to enter into treaties. The
condition of half-sovereignty does not limit or restrain
the exercise of any save international rights; it affects
only the exterior considération in which the State is
held that exists under such a régime.
States are ail born of historié évolutions. Inter-
national law concerns itself much less with the origin of
a State than the question as to when it became sover-
eign; and this question practically effects its own
solution with ease.
Sovereignty begins at the very moment when the
society of which it is the organ has its birth: in other
words, when a civil society is constituted with a
suprême legal organ, that is to say, a government,
and is separated from another society in which
it had been included or merged. This principle is
equally applicable to the internai and extern al sov-
ereignty of States, with this différence only, that
interior sovereignty exists de piano, and does not
need the récognition of other States. Thus, for in-
stance, the internai sovereignty of the United States
of America has existed from the day of their solemn
déclaration of independence, that is to say, since the
4th of July, 1776. The suprême court at Washington
declared this in 1808, saying that from that day, July
4th, 1776, the States composing the Fédéral Union had
secured the unlimited right to exercise legal authority
within their frontiers, and that the exercise of this
sovereignty was quite independent of the récognition
accorded by the King of England in 1782.
But while a State may be said to enjoy interior
sovereignty from the moment of setting ‘up its﻿STATE IDENTITY.
71
constitution, it is not the same with regard to its
exterior sovereignty; this needs to be sanctioned by
other States, and until this is done the new State forms
no part of the grand legal society of nations. Each
State is, without doubt, free to recognize a new State or
not: but it is, in ail cases, bound to take the consé-
quences of the détermination to which it cornes.
States are not eternal. They are born, they grow,
they die like individuals. In this regard they are
nothing more than great individualities, to whom the
general laws of existence are applicable. The State
continues to exist so long as it préserves, and has the
power to preserve, its character as an independent
body politic. Its identity is not subject to the changes
or alterations which may affect its internai institutions.
In its domestic sphere, in its relations to public law,
the State may undergo numberless transformations,
and we may therefore say that in its relations to the
individuals which constitute it, the State is variable,
but that in regard to society itself it is permanent. For
a State to be so modified that its exterior identity
shall be changed, it is necessary that its manner of
being should undergo a fundamental change,—one of
a nature to alter not only the conditions of the society
that lives under it, but those even of the State itself.
Internai changes do not exert a décisive influence on
the international standing of a State, neither free-
ing it from any obligation nor depriving it of any of
its rights in the sphere of its exterior relations.
But while these general principles are strictly correct
in their application to a normal State of things, can
the same be said when civil war arises ?
Must we consider a State suffering from internai
divisions as separated into two distinct States, and as﻿y 2	*ESSENTIAL A TTRIB U TE S OF A ST A TE.
subjected to ail the conséquences which such a sépa-
ration involves ?
May a foreign State espouse the cause of one of the
contestants ?
When is it right to proclaim and recognize insur-
gents as belligerents ?
These are the grave questions of international law to
which the event of a civil war gives rise, and of which
pubiicists hâve given very diverse theoretical and prac-
tical solutions, according to the circumstances and
the political point of view that hâve influenced their
opinions.
Grotius lays down the principle that a nation suffer-
ing civil war ought to be considered, after a certain
time, as forming two nations. Foliowing the same
idea, Vattel argues that, when a people is divided by
civil war, other nations are entitled to render assistance
to whichever of the contestants they consider as hav-
ing right on its side ; recognizing, however, the dangers
and inconveniences of this doctrine, he takes pains to
add that this principle ought not to be abused by at-
tempts to incite civil war in another country, and after
having quoted as correctives a certain number of his-
torié precedents, he closes by saying :—“ As for those
monsters who, under the title of sovereigns, make them-
selves the scourge and the horror of humanity, they
are ferocious beasts, which might with justice be
driven from the face of the earth. Ail antiquity
praises Hercules for ridding the world of an Antæus,
a Busiris, and a Diomede.”
Pinheiro Ferreira takes exception to these con-
clusions as applied to the independence of nations,
to the sovereignty of States, and to the facilities
which the doctrine of intervention aiïords to gov-﻿RECOGNITION OF BELLIGERENTS.
73
ernments for the commission or the continuance of
abuses.
Wheaton reproduces literally the doctrine of Vattel;
but he remarks that whenever a foreign State takes
sides with one of the contesting parties, it necessarily
becomes its ally, and that in this quality it becomes
absolutely the enemy of the other, and since the law
of nations recognizes no distinction between a just
and an un just war, the intervening State assumes
at once the rights, and ail the conséquences of the
war.
The only truly rational and legitimate motive which
can induce a State to accord the character of beilige-
rents to the factions of another State, is that the con-
test compromises the rights and interests of this for-
eign government, which, by the accordance of the title
of belligerent, defines the position it intends to assume
with regard to the combatants. Now, from this point
of view, we may say that States widely separated from
one engaged in civil war hâve not, in general, any in-
terest in lending their moral support to either party,
or in according a récognition that could not fail to en-
courage the strife.
The case is not the same with essentially mari-
time nations ; the importance of commercial interests,
the safety and protection of individuals, may compel
the authorities of other nations, even those farthest
removed, to pronounce upon the character of the pend-
ing struggle. From the time the parties at issue are
recognized as belligerents, they are placed on an equal
footing as concerns the right to arm ships, to search, cap-
ture, and condemn, in their prize courts, the merchant
vessels of foreign nations : but to be legal, and not open
to the charge of piracy, the exercise of the right of﻿74 ESSENTIAL A T TRIE U TE S OF A S TA TE.
search is necessarily subject to the previous récogni-
tion of belligerency.
This whole question. was most fully and ear-
nestly discussed between Mr. Adams, late United States
Minister at London, and Lord John Russell, then at
the head of the English Foreign Office, in the corre-
spondence which grew out of the course taken by Eng-
land in reference to the late civil war in the United
States. Mr. Adams argued that the récognition of the
Confederate States of the South as belligerents by the
Cabinet of London, in concert with that of Paris, was
an act without precedent in the history of international
law, and the resuit of a culpable précipitation on the
part of the English Government. Mr. Adams further
urged that when an insurrection is raised against a
legitimately constituted government, foreign govern-
ments which would continue to preserve pacifie rela-
tions are bound to abstain carefully from ail measures
calculated to exert the least influence on the situation
of the country whose internai tranquillity is disturbed;
if, however, after a sufficient time it appears that the
strife is prolonged, and présents no prospect of an early
termination, then, and especially when it affects mari-
time nations, the necessity of recognlzing the combat-
ants as belligerents is clear, and no one has any right
to complain. These principles received the approba-
tion of Lord Russell, who, in his reply to the Cabinet
at Washington, pleaded only, in justification of the
conduct of the Queen’s Government in yielding to the
force of circumstances, the urgency of the afïair, and
the necessity of clearing from difficultés a position in
which the most important interests of England were
involved.
The historié precedent thus furnished by two powers﻿RECOGNITION OF INDEPENDENCE.
75
of the highest rank gives a practical solution, in a most
précisé and satisfactory manner, of the question of the
récognition of belligerents in cases of civil strife.
The exterior sovereignty of a State is impaired by
the séparation of a province or colony: this séparation,
however, c.annot be regarded as complété until it has
been recognized by other States. The case is governed
by the general principles which hâve been established
by international law for the récognition of the exterior
sovereignty of nations.
While a struggle is pending between a nation and
one of its provinces or colonies, other States are bound
to observe a strict neutrality; but, as we hâve already
said, if the war is prolonged, or if, after having ex-
hausted ail its resources, the nation is no longer able
to contend, other States hâve an unquestionable right
eithei to recognize the independence of the new State,
the actual existence of which is no longer in doubt, or
to espouse its cause in treaties of friendship and com-
merce, or otherwise.
The act of recognizing the independence of a colony
or province falls exclusively within the prérogative of
the executive power of each state; secondary authori-
ties are, like individuals, absolutely incompetent to
establish such a récognition.
Every fundamental change which a State sustains in
its manner of being exerts an influence on its interna-
tional relations. Changes may occur in the constitutions
of States, in the reigning dynasty, or in the person of the
sovereign, which will hâve the effect to annul treaties
concluded by the State with other nations. The bind-
ing force of treaties rests on the contract itself and on
the mutual relations of the contractmg parties, and
no one doubts that changes afïecting these relations﻿76	ESSENTIAL A TTRIB U TE S OF A ST A TE.
necessarily influence the carrying out of the obliga-
tions of a treaty. But there are transformations and
fundamental changes in the mode of a state’s existence
which involve the maintenance and rigorous fulfilment
of anterior conventional engagements. Thus, when
Texas decided to join the United States, France and
England were right in declaring that this détermination
did not release the new State, added to the North
American fédération, from its financial engagements,
nor from the faithful observance of the commercial
treaties it had previously concluded with them. In
this matter, however, everything dépends on circum-
stances, upon the nature and bearing of treaties, as well
as upon the character of the political transformations.
A free people which has changed its form of gov-
ernment is not by this fact alone released from the
obligation of paying its former debts. Inasmuch as
it takes possession of the domain of the State, the new
government receives as an inheritance from that
which preceded it, at the same time with the fiscal
rights and privilèges, the obligation to provide scrupu-
lously for the loans, the debt, and other like charges which
rely for their payment on the guarantee of the public good
faith. These are, moreover, the principles that hâve
been invariably observed in ail the modem annexa-
tions and incorporations of territory and of nationality.
When the western counties of Virginia separated
from the mother State and established themselves as
an independent member of the Union in 1862, no pro-
vision was made for the assumption by West Virginia
of any portion of the public debt of the old common-
wealth. Efforts hâve been made for an équitable
adjustment of the obligations, but the différence of
opinion between the two States as to the proportion﻿PUBLIC DE B T.
77
which West Virginia should assume is so wide that
it is doubtful whether any agreement will ever be
reached.
Through ail the wars and révolutions that hâve dis-
tracted Europe since the beginning of the century, ques-
tions of public and private proprietorship,naturally grow-
ing out of the conquest and annexation of territory,
the fall and restoration of governments, hâve corne
up in more than one point of the old world, and hâve
been considered in ail their bearings.
The public domain is, in a certain sense, the State
itself; it reflects its personality as a private domain re-
flects the personality of its proprietor. The government
established in a State becomes then ipso facto proprietor
of the public domain. This axiom cannot be disputed ;
but how is it with regard to private property ? Cer-
tain governments, born of the shock of révolution,
hâve not feared to decree the confiscation of ail prop-
erty belonging to the conquered parties. In this
case the fact acquires the force of right, provided
the confiscation be positive and not equivocal. What
will happen, however, if the revolutionary confiscation
cornes to be revoked; if for example, the restored gov-
ernment without undertaking to impair rights acquired
under the shadow of a temporary political situation, by
the guarantee of express laws, re-establishes things
in their primitive order. No one doubts that then,
on the principles of jus postliminii confiscated private
property which had not been sold, as well as portions
of the public domain not alienated, would revert
logically and necessarily to their former possessors
and proprietors. As for public and private property
that bas regularly and legally passed into other hands,
it is difficult to apply the same rule.﻿78 ESSENTIAL A T TRI B U TE S OF A ST A TE.
We do not need to add that when public or private
property confiscated and sold has been purchased by
foreigners, the acts of purchase ought to be respected,
even though the government which authorized them
cornes to be regarded as a usurpation after the restor-
ation of the legitimate sovereign. The proceeds of
the sale of confiscated property being always turned
into the public treasury, the most practicable means of
settlmg these délicate questions of proprietorship and
acquired right is to confirm ail the sales, and at the
same time to indemnify the old proprietors at the
expense of the state.
The responsibility for acts of violence committed
by a government, however illegitimate, rests upon the
succeeding government, a change even of dynasty se-
curing no exemption from thi» rule.
In the treaties of 1814 and 1815 the allied powers
most rigorously applied this principle to France. The
same was done in the course of the negotiations
between the United States, France, Holland, and
the Kingdom of Naples with regard to the prizes
and confiscations made in pursuance of the cele-
brated decrees issued by Napoléon I. at Berlin and
Milan during his wars with Great Britain. It is
well known that on this subject the principle of
responsibility was definitely recognized. by France
in favor of the United States, in the treaty of July,
1831, which stipulated the payment to them of
twenty-five million francs ; the same principle was
recognized in favor of the old Kingdom of Naples,
by a spécial arrangement in regard to the con-
fiscation of vessels ordered by the government of
Murat.
Having considered the effects produced by funda-﻿LOSS OF STATE SOVEREIGNTY.	79
mental changes in a State, we hâve now to show how
States may lose their sovereignty.
It is plain that when two States merge in an actual
union, constituting a single body politic, and a dis-
tinct nationality as related to other States, this fact by
itself destroys the anterior individual sovereignty of
both. A pure and simple incorporation entails the same
conséquences. Thus the old Principality of Wales,
and the Kingdoms of Scotland and Ireland hâve lost
their sovereignty by incorporation with England, as
Norraandy and certain other once independent States
hâve ceased to enjoy theirs from the fact of their ab-
sorption by France.
What are the general effects of this total extinction
of the sovereignty of a State ? So far as concerns
the relations of public law, the effects are absolute ;
that is to say, they amount to the legal and complété
destruction of those bonds and obligations which hâve
no other foundation than that of the sovereignty whose
term of existence is now ended. As to private rights
and relations, they remain unchanged, since the fact
of the disappearance of sovereignty is without effect
on any of the rights or duties of individuals.
The sovereignty of a State may be lost, and with
precisely similar effects, by the division of a State into
several distinct and separate States. From the time
when such a séparation is realized, the State ceases to
be what it was before . its sovereignty is divided into
fractions, as also its individuality and its personality.
The conséquence ensuing from the operation of these
principles, which hâve been sanctioned by conven-
tional law (notably by the treaty of 1839 relating to
the séparation of Belgium and Holland), and by many
judicial decisions, is that the obligations bearing upon﻿80 ESSENTIAL A T TRI B U TE S OF A S TA TE.
the old State are, in the absence of contrary stipula-
tions, transferred de piano to the new States.
According to Kent, when a State divides itself in
half without regulating by spécial provision the divis-
ion of obligations it is under, the responsibility by
right rests in equal portions on each fraction of the old
State.
Story sustains these principles, and says that the
division of a state is by no means followed by an ex-
emption from obligations previously contracted.
SECTION II—INDEPENDENCE.
States possess by virtue of the very law of their or-
ganization and of their sovereignty, a sphere of action
exclusively and individually their own. In this regard
they dépend upon no other power, and are only to
themselves responsible for the maintenance of those
rights and the observance of those duties which consti-
tute the necessary and primordial basis of ail free
society.
Absolute sovereignty necessarily implies complété
independence: States, equally with moral beings, enjoy
the fundamental right to move freely toward the ac-
complishment of their own destinies: and no duty is
more impérative than that of recognizing and respect-
ing the sovereign rights and absolute independence of
each by the others.
If States are reciprocally independent, it follows that
they enjoy without réservation the right of determin-
mg and organizing their interior constitutions.
To hold however, that a nation is free to make
changes in its manner of being, of a nature to affect
more or less seriously the safety or the sovereign rights﻿CHANGES IN GO VERNMENTS.
81
of another nation, and to prétend that these changes
impose no international responsibility in any case, would
violate the very principle we hâve just laid down. In
this matter individual right is restrained in favor of
collective right or general reciprocal independence, and
every State that dares to overleap this barrier justly ex-
poses itself to be regarded as a disturber of the public
peace.
The right by virtue of which nations establish their
political constitution and détermine their form of gov-
ernment leaves them also free in the choice of their or-
gans of authority. In hereditary dynasties succession to
the throne is generally regulated by constitutional
laws. In elective States the choice of chief ruler is
the exclusive prérogative of the nation: the élections
being in pursuance of laws which the nation itself has
adopted. Under either form of government the inter-
vention of a foreign State would be contrary to the
principles of international law, and could not be justi-
fied from any point of view.
In confédérations, changes in the form of govern-
ment of members dépend, for their legitimacy, upon
spécial rules adopted by the fundamental compact
which binds them together.
But if the independence of States and the rights per-
taining thereto are absolute, on what principles can in-
tervention be justified ?
The natural development of a nation by the increase
of its population, of its power, and even of its territory,
cannot justify foreirm intervention.
An intervention on account of the increase of the army
- or the navy of a state can be justified only when the
augmentation of military forces assumes an evidently
aggressive or seriously menacing character, and gives﻿82	ESSENTIAL A TTRIB U TE S OF A ST A TE.
ground for reasonable fears as to the maintenance of
peace.
Neither is the acquisition of lands or colonies, more
or less remote, to be considered as sufficient cause for
intervention. The history of modem times has abun-
dantly proved that this sort of aggrandizement is most
frequently an occasion of weakness to the State that
undertakes it, a source of unfruitful expenses, and the
origin of ail sorts of complications.
Where, then, can we find the rational and legitimate
ground for the intervention of one State in the internai
affairs of another ? Such interférence has occurred in
every âge, and however restricted it may now be, is still
a fact of our own times. Ail publicists are agreed as
to the gravity of the act, and the conséquences which
may resuit from it: but in their appréciation of its legal
bearing they reach the most contradictory conclusions.
Heffter, a partisan of the principle of abstention,
daims that interventions, properly speaking, can be
justified only in the four following cases:
ist. When the interférence takes place with the for-
mai consent of the interested State, and by virtue of an
express clause in a treaty guaranteeing the constitution
or the defence of the country and authorizing the de-
mand of this guarantee under certain circumstances.
2d. When a state effects changes in its interior ar-
rangements calculated to préjudice the legitimate
rights of a neighbor, as, for instance, if they should re-
suit in depriving a foreign sovereign of his eventual
rights of succession, or his privilèges of seigniority.
3d. When it is done to put a stop to an intestine war
which compromises the existence of one or more coun-
tries, strikes a blow at common interests, and runs
counter to the principles of humanity.﻿INTERVENTION,
83
4th. Finally, when the intervention is to prevent a
State from meddling unduly with the interior affairs of
its neighbors, and from committing acts infringing
upon the independence and the security of other
States.
As early as the seventeenth century Grotius laid down
the principle that the mere possibility of being attacked
did not confer the absolute right to assume the aggres-
sive, and that the loss of prépondérance acquired, or
the partial disturbance of the equilibrium established
among the great powers, could not be regarded as
legitimate ground for intervention.
Vattel admits that a State may offer its friendly aid
to another State in the régulation of its interior or in-
dividual affairs ; but he denounces as an act of un-
justifiable hostility ail interférence which has not been
freely invited, or which is not called for by prior con-
ventional obligations.
Martens says that a State is permitted to oppose
certain changes occurring within another State, as, for
example, when such changes interfère with formally
recognized individual rights, or with its own security
and préservation.
Wheaton holds that every independent State pos-
sesses, in vktue of its sovereignty, the unquestionable
faculty of increasing its population, territory, and re-
sources by ail available and legitimate means. The
only limitation which he places upon the exercise.of
this right is that it should be accorded equally to ail
States ; and, this abstract principle once established, he
is led logically to conclude that intervention is legiti-
mate and founded in right, and may be resorted to
for good and sufficient cause.
At the time when it was believed that the only﻿84	ESSENTIAL A T TRIE U TE S OF A ST A TE.
guarantee of international order and public peace
grew out of a certain equilibrium in the power and
territorial extent of the different States—that is to say,
at the outset of the great struggles of the House of
Austria in Germany and Italy,—the practice of inter-
vention obtained throughout nearly the whole of
Europe. When political or dynastie interests were not
sufficient to awaken ambition, or sustain wars of ag-
gression, pretexts of intervention were sought for in
those religious strifes which, from the sixteenth cen-
tury to the Peace of Westphalia, had worked such
ruin, and had resulted in so many crimes against the
internai sovereignty of States, great or small.
After the religious movements of the sixteenth cen-
tury, and the Révolution in England of the seventeenth
century, the French Révolution is the event which has
exerted the greatest influence on the destinies of the
world, and, by conséquence, upon the interior organi-
zation and the mutual relations of States.
Ail the coalitions formed against France, from 1789
to the treaties of 1812 and 1813, were incited by the
dangers with which the Révolution threatened the per-
petuity of the order of monarchy in Europe, and -had
as their object the maintenance of the equilibrium of
States. The absolute right of intervention was then
distinctly sustained by the combined powers.
France, on the contrary, defended not less resolutely
the legitimacy of the principle of non-intervention,
basing it upon the sovereignty and reciprocal indepen-
dence of nations. At the close of the strifes which
grew out of the fall of the First Empire and the
restoration of the Bourbons, England, Austria, Prussia,
and Russia concluded. in 1815, the treatyknown as the
perpétuai alliance, upon which a little later (1818-﻿THE RIGHT OF INTERVENTION.
85
1820) the great powers, joined by France, sought to
build up a permanent System of intervention for the
protection of the monarchs agamst the revolutionary
tendencies of their people.
This System of perpétuai interférence did not ac-
complish ail that was expected of it. To render it
effective, unanimity of views was necessary, an agree-
ment of thought and tendencies difficult to be met
with in ail the States. In point of fact, England very
soon resisted the pretensions of Austria, Prussia, and
Russia, by opposing the enforcement of the resolutions
passed by the Congresses of Troppau and Laybach
for the suppression of the insurrectionary movements
which had taken place in 1820 at Naples and other
points in Italy. She did not limit herself to the refusai
of her aid for imposing on secondary States a political
régime the abuses of which had become intolérable : she
went so far as to dispute with the great powers the le-
gitimacy of the rôle of international judges that they
had presumed to assume, and would not acknowledge
as a principle of international law the doctrine of in-
tervention proclaimed on the continent.
The verbal représentations which her ministers to
the great European courts were ordered to make on
this subject having proved barren of results, the gov-
ernment of England resorted to a déclaration of prin-
cipes, which embodied her views in the premises, and
which was of great interest. In this manifesto, dated
Jânuary 19, 1821, and signed by Lord Castlereagh, the
ground assumed is that if political révolutions trans-
piring in one country can create a right of intervention
in other States, it can only be on the double condition
that the security and essential interests of these States
are actually menaced in a serious manner, and that an﻿86 ESSENTIAL A T TRIE U TE S OF A S TA TE.
impérative and urgent necessity for action exists. The
manifesto of the London Cabinet closes by saying that
the exercise of the right of intervention is a breach of
the law of nations, such as can only be justified by ex-
ceptional circumstances.
These wise principles were rejected by the allies, and
the révolutions in Naples and Piedmont were stifled
in blood, through the aid of the Austrian forces. They
were equally ignored in 1822 by the Congress of
Verona, which was made the point of departure for
the French intervention in Spain. In spite of the in-
efficacy of its former protestations, the English gov-
ernment again made its voice heard. In a note ad-
dressed to the allies in May, 1823, Lord Castlereagh
argued that no State had a right to force another State
to change its constitution, much less to threaten a re-
sort to force in case of refusai.
In the western continent the political events of this
period were of a nature to impart great interest to the
question of intervention. The vast colonies of Spain
had flung off their allegiance to the mother country,
and were assuming positions as independent States
in the great family of nations, with constitutions dif-
fering from those of the monarchies of Europe. But
they were very far from being clear of interférence
from the other side of the Atlantic. Spain still
claimed to exercise sovereignty over her old posses-
sions, although the independence of the new nations
had been formally recognized by the United States,
and to a certain extent by some of the governments
of Europe.
At this juncture a statement of policy was given to
the world bythe President of the United States, which
has passed into history as the “Monroe Doctrine,” and﻿THE “MONROE DOCTRINE87
which has in several important instances served as the
keynote of American diplomacy.
It was in the annual message of the Executive to
Congress in December, 1823, that Mr. Monroe, then
President of the United States, brought forward the
doctrine that has since been called by his name.
Alluding to the unsettled condition of the late Span-
ish-American colonies, and the refusai of Spain to
recognize their independence, he says:	“With the ex-
isting colonies or dependencies of any European power
we hâve not interfered, and shallnot interfère; but with
the governments who hâve declared their independence
and maintained it, and whose independence we hâve,
on great considération and on iust principles, acknowl-
edged, we could not view any interposition, for the pur-
pose of oppressing themy or controlling in any other man-
ner their destiny, by any European power, in any other
light than as the manifestation of an unfriendly disposi-
tion toward the United States.
“ Our policy in regard to Europe, which was adopted
at an early stage of the wars which hâve so long agi-
tated that quarter of the globe, remains the same;
which is, not to interfère in the internai concerns of
any of its powers; to consider the government de facto
as the legitimate government for us; to cultivate
friendly relations with it, and to preserve those rela-
tions by a frank, firm, and manly policy; meeting, in ail
instances, the just daims of every power, submitting to
injuries from none. But, in regard to these continents,
circumstances are eminently and conspicuously dif-
ferent. It is impossible that the Allied Powers should
extend their political System to any portion of either conti-
nent without endangering our peace and happiness ; nor
can any one believe that our Southern brethren, if left﻿88	ESSENTIAL A T TRIE U TE S OF A S TA TE.
to themselves, would adopt it of their own accord. It
is eq ially impossible, therefore, that we should behold
such interposition, in any form, with indifférence.”
The position taken by Mr. Monroe was not, as some
writers hâve maintained, against the establishment of
monarchical forms of government in America, but
against their imposition by force on unwilling and re-
sisting peoples. And that such interférence was con-
templated by Spain, with the backing of the nations
forming the Holy Alliance, had been made clear by
the proceedings of the Congresses of Aix-la-Chapelle,
in 1818, of Troppau, Laybach, and Verona.
The effect which the déclaration of President Monroe
produced in England was such that Lord Brougham did
not hesitate to express the opinion “that the question
with regard to South America was disposed of, or
nearly so, and than which no event had ever diffused
greater joy, exultation, and gratitude over ail the free-
men of Europe.”
Lord John Russell contrasted the “decided language”
of Monroe with the fluctuating policy of the British
Ministry as represented «at Verona.
Sir James Macintosh expressed himself in a similar
manner, and said that it washis most earnest desire that
England and the North American Republic should
always march together and defend side by side the
cause of liberty and justice.
The addition of the moral support of England, at
this juncture, to the position taken by the President of
the United States, produced the most gratifying re-
sults. Spain did not dare to enter into open strife
with a moral and national force such as would be pre-
sented by the union of England and the United States
for the defense of constitutional government. And so﻿THE “MONROE DOCTRINE89
it was not long before the new nations of the West
secured the récognition of the world.
It is not a little remarkable that a mere doctrine put
forth by a President in a message to Congress, could
accomplish so much. for it is a fact that a resolution
endorsing the doctrine, offered in the House of Rep-
résentatives in January, 1824, by Mr. Clay, was never
even called up for action, Congress evidently deeming
it prudent to delay the adoption of any measures cor-
roborative of the President’s suggestion, antil “forci-
ble intervention” had actually taken place
In the message to Congress above referred to, the
President made another déclaration, which is usually
regarded as the second part of the Monroe doctrine,
although it appears in the message before the other.
Alluding to the progress of negotiations then pending
between the governments of the United States and
Russia respecting the boundary of the northwest terri-
tory of the former, Mr. Monroe uses the following
language:
“ In the discussions to which this interest has given
rise, and in the arrangements in which they may ter-
minate, the occasion has been judged proper for assert-
ing, as a principle in which the rights and interests of
the United States are involved, that the American con-
tinents, by the free and independent condition which
they hâve assumed and maintain, are henceforth not to
be considered as subjects for future colonization by
any European power.”
The only European powers which had possessions
in North America at this period, were Russia and Eng-
land. Spain had some time before ceded Florida to
the United States, and the Mexican révolution had
overthrown the old empire of the Montezuraas. The﻿gO ESSENTIAL A T TRI B U TE S OF A ST A TE.
rights of Russia on the Northwest Coast had ne ver
been precisely determined: the carrying on of fisheries
and the development of hunting lands had occasioned
incessant conflicts between the settlers and Indians,
and it was to put an end to these that the Emperor
Alexander, in a ukase issued in September, 1821, as-
serted the exclusive territorial right of Russia on the
Northwest Coast. This claim assumed to annul and
overridethe stipulations of a convention between Eng-
land and the United States,entered into in i8i8,agreeing
that the question of proprietary right in “ any country
that may be claimed by either party on the Northwest
Coast of America, westward of the Stony Mountains”
should be left in abeyance for the term of ten years
from the date of the signature of the said convention,
“ it being well understood that this agreement is not to
be construed to the préjudice of any claim which either
of the two high contracting parties may hâve to any
part of said country.” These questions of domain and
division were not easily settled, but they tended to
combine the interests of England with those of the
United States, as against the grasping pretensions of
Russia.
Mr. John Quincy Adams, who was then Secretary of
State, forwarded to Mr. Rush, United States Minister
at London, under date of July 2, 1823, very full and
explicit instructions regarding the ground to be taken
against this attitude of Russia, sending a copy of them
to Mr. Middleton, Ambassador of the United States at
St. Petersburg These instructions so clearly fore-
shadowed and gave the reasons for the positions taken
by President Monroe five months later in his message,
that Mr. Adams is, with reason, looked upon as the
author of the second part of the Monroe doctrine.﻿THE “MONROE DOCTRINE.
91
Equally with the first part, did this feature of the
doctrine we are now considering fail to secure any
formai endorsement from the law-making branch of
the government.
In 1825, Mr. Adams, who had then become Presi-
dent, in speaking of a Congress of American nations
proposed to be held at Panama for the purpose of
forming a défensive league, says in a spécial message
to Congress: “An agreement between ail the parties
represented at the meeting, that each will guard by its
own means against the establishment of any future
European colony within its borders, may be found dé-
sirable. This was, more than two years since, an-
nounced by my predecessor to the world as a principle
resulting from the émancipation of both the American
continents. It may be so developed to the new
Southern nations that they will ail feel it as an essen-
tial appendage to their independence.” But the prin-
ple even in this modified form lacked the support of
Congress. When the resolution “to appropriate the
funds necessary to enable the President of the United
States to send ministers to the Congress at Panama”
was under discussion in the House of Représentatives, it
was éxpressly voted, that such ministers should in no
way make any compact or engagement with the Spanish-
American States, in regard either to any threatened in-
tervention or any future colonization by the European
powers on the American continents. And, moreover,
in the settlement of the différences between Great
Pritain and the United States as to the northwest
boundary, which was effected during Mr. Polk’s ad-
ministration, the territory between the parallels 49° and
54° 40', claimed by Mr. Monroe as undoubtedly belong-
ing to the United States, was not only rendered “sub-﻿92
ESSENTIAL ATTRIBUTES OFA STATE.
ject to future colonization by a European power,”
but was actually yielded to the government of Great
Britain.
We may conclude, therefore, that the second part
of the Monroe doctrine never received, as it never
deserved, the support of the Législature or the people
of the United States. The so-called first part, however,
though it did not receive formai endorsement in any
official quarter, was sustained by the general sentiment
of the people to a degree sufficient to make it a power
in several important international complications in-
volving the old world and the new ; an illustration of
which will appear in a case of intervention about to
be considered, namely, that of France, Spain, and Eng-
land, in Mexico, in the years 1861, et seq*
The point of departure of the Mexican intervention
was the demand for réparation in the form of pecuni-
ary indemnity for injuries sustained by a certain
number of foreign subjects, for acts of spoliation and
violence, or for déniais of justice from which certain
French, Spanish, and English merchants were said to
hâve suffered during the political révolutions which
Mexico had successively experienced.
In the course of October, 1861, France, England, and
Spain met in conférence at London to agréé as to
what course should be adopted to secure the payment
of indemnities claimed by their subjects, and con-
cluded a spécial convention, which enumerated the
alleged grievances against the Mexican government,
which was especially accused of having dishonored its
* In the préparation of the paragraph on the Monroe doctrine,
the able article on that subject in the North American Review
for April, 1856, by President Welling, of th? Columbian University, has
been freely drawn upon.﻿INTERVENTION IN MEXICO.
93
financial engagements, of having neglected to provide
for the bonds of the public debt, passed into the
hands of foreign creditors, and of having refused
justice to a great number of individual daims.
The preamble and first article also mentioned the bad
treatment in their persons and goods, and acts of vio-
lence from which many foreigners had suffered, and for
which they had been unable to obtain legal redress.
Article two provided that in order to obtain redress for
this collection of grievances, the contracting parties
would combine their action and their means, but they
forbade themselves any acquisition of territory, any ex-
clusive advantage, and any interférence in the internai
affairs of the country of a nature to affect the right of
the Mexican nation to détermine the form of govermnent
which it judged most conducive to its interests.
Assuming to disclaim any purpose of using coercive
measures and ail idea of conquest, the three allied
powers nevertheless reserved to themselves the right
to occupy territory and cities to such an extent as
might be necessary to the attainment of the common
ends they had in view.
A month after the signature of the treaty of London,
the allied powers invited the United States to join
them as the fourth contracting party, to regulate in
common the affairs of Mexico. The government at
Washington, in view of the form of its institutions
and the interests even of its geographical situation,
could not regard with indifférence the part which three
great nations were preparing to play in Mexico ; but
it was not an easy matter for the United States to act
only as a consenting party in a programme arranged
without its cognizance, and in the ordering of which it
had not participated. And thus it fell out that the﻿94
ESSENTIAL ATTRIBUEES OFA STATE.
position taken by the United States from the outset
was that of a power determined to settle the pending
difficultés only by a resort to diplomatie measures.
The actual motives of the European intervention in
Mexico were clearly shown in the letter of the Emperor
Napoléon III., of July 3, 1862, to General Forey,
Commander-in-Chief of the French expeditionary
corps.
France, said this letter, in intervening in Mexico,
proposes:
1.	To place obstacles in the way of the absorption
of this part of America by the United States;
2.	To prevent the great Anglo-Saxon fédération
from becoming the sole medium and the sole mart
for the commodities and the commerce of the North
American continent;
3.	To re-establish the prestige of the Latin race in
America;
4.	To advance the influence of ^France by the estab-
lishment of a government in Mexico more in sympathy
with her interests.
This récital was naturally followed by instructions
for General Forey to establish a monarchy in Mexico,
if that form of government should not prove incom-
patible with the public sentiment of the country, or, if
it should so seem, to omit nothing in working for the
establishment of a government which could offer
substantial guarantees of morality and stability. In
an earlier letter to General Lorencez, who had pre-
ceded General Forey in Mexico, Napoléon III. had
especially declared that it was contrary to the interests
of France, as well as inconsistent with the origin and
principles of the impérial government to seek to impose
any particular form of government on the Mexican﻿PROPOSED CHANGE OF GOVERNMENT. 95
nation, and that the people of a country should al-
waysbe left absolutely free to choose that form ofgov-
ernment which seemed to them most désirable.
Despite this déclaration it is évident that the ob-
ject held always in view by the subscribers to the Lon-
don convention, was the substitution of a monarchy
for the republican régime in Mexico : and it was be-
cause of this actual motive that they took as the basisof
their intervention, demands or indemnity resting, it is
true, on sufficiently definite but yet unaudited daims,
and that they made these pecuniary réclamations,
without having previously inquired how far the
Mexican government could be shown to be directly
responsible, and without having taken due account
of the sum total and legality of the alleged debts.
The Secretary of State of the United States, Mr.
Seward, in a note of the 4th of December, 1861, ad-
mitted the right of the allies to judge for themselves
whether the injuries sustained by their subjects were
sufficiently grave to justify the war which they pro-
posed to wage in Mexico; but declared that this could
not prevent his reminding them that the United States
were highly interested that no foreign power should
seize any portion whatever of Mexican territory, nor
obtain any individual advantage, and above ail that
no foreign government should exercise an influence
that might infringe upon the right which Mexico
possessed freely to choose and constitute her gov-
ernment.
The United States, Mr. Seward added, refused to
join in the treaty of London, because the alliance
therein proposed was contrary to the traditional rule of
conduct which forbade them to meddle in thepolitical
affairs of Europe; because the Republic of Mexico﻿g6 ESSENTIAL A TTRIB U TE S OF A S TA TÉ.
inspired their liveliest sympathies; and finally, becaus'e
the daims which it was proposed to press against
Mexico were of a nature to be settled in an amicable
manner.
This attitude of the Washington government was the
first complication, soon aggravated by an event occur-
ring on Mexican soil.
From the moment of their landing, while the repré-
sentatives of England and Spain proposed to first
exhaust pacifie negotiations, and to enter, if necessary,
into relations with the government of Juarez, the
French delegates preferred to refuse ail compromise
and proceed immediately to the employment of force.
This led to a conférence at Orizaba on the 9th of April,
1862, in conséquence of which, under the pretext that
the French misconstrued the spirit of the London
convention, the English and Spanish troops evacu-
ated Mexico and re-embarked for Europe, leaving
France to sustain single-handed the burden of the
intervention.
Freed thus from the trammels imposed by their
allies, and yielding more and more to the pressure of
the French émigrants and the party opposed to Juarez,
the French agents threw away their caution, and
seconded energetically the work of monarchical restora-
tion, which, after the taking of Puebla, seemed about
to be effected at the city of Mexico itself.
A junta of notables, in the choice of whom the
people had taken no part, seized the power abandoned
by Juarez, and sent delegates to Europe to offer the
impérial crown of Mexico to the Archduke Maxi-
milian of Austria. The French government, regarding
the establishment of an empire in Mexico as the legi-
timate expression of the will and sovereignty of the﻿FRENCH OCCUPA TION OF MEXICO.
97
people, immediately recognized the new government,
and entered into official and diplomatie relations
with it.
Even before leaving Europe to take possession of
the throne which the junta of Mexico had tendered to
him, the Emperor Maximilian signed at Miramar on
the 8th of April, 1864, a treaty in which France agreed
to leave an army corps in Mexico, the size of which
would be gradually reduced so that it would be entirely
withdrawn at the end of four years, the new govern-
ment engaged on its part to provide for the support of
the army of occupation, and to reimburse the expense
of the French expédition,and to liquidate, by means of
a payment of 60,000,000 francs, the individual daims
which were the ground of the intervention and the
triple alliance of London in 1861.
The response which Mr. Seward had made on the
4th of December, 1861, to the overtures of the
allied powers, made it sufficiently certain that the
Cabinet at Washington would absolutely refuse to re-
cognize the legitimacy of Maximilian’s authority. In
a dispatch which headdressed on the 7Ü1 of April, 1864,
to Mr. Dayton,United States Ministerat Paris,the same
Secretary of State announced that the House of Rep-
résentatives had unanimously opposed the récognition
of the new Mexican monarchy.
It was not, however, until June, 1865, that Mr. Sew-
ard fully revealed the sentiments of his government
on the subject of the French intervention. Mr. Bigelow,
the American Minister at Paris, was directed by Mr.
Seward to inform the French Minister of Foreign
Affairs that, “ so far as our relations are concemed,
what we hold in regard to Mexico is, that France is a
belligerent there, in war with the republic of Mexico.﻿g$ ESSENTIAL A T TRI B U TE S OF A S TA TE.
We do not enter into the merits of the belligerents,
but we practice in regard to the contest the principles
of neutrality; and we hâve insisted on the practice
of neutrality by ail nations in regard to our civil
war. Our friendship towards the republic of Mexico,
and our sympathies with the republican System on
this continent, as well as our faith and confidence in it,
hâve been continually declared. * * * * It is right
that the French Government should not misunderstand
the case,and so be suffered to fall into a belief that we
hâve entertained any views favorable to it as an in-
vader of Mexico, or that we at ail distrust the ultimate
success of republican institutions throughout this con-
tinent.”
In a second note, dated September 6, in the same
year, Mr. Seward made use of language still more ex-
plicit.
“ Itis perceived,” saidhe, “with much regret, that an
apparent if not a real, a future if not an immédiate
antagonism between the policies of the two nations
seems to reveal itself in the situation of Mexico. The
United States hâve at no time left it doubtful that
theyprefer to see a domestic and republican System of
government prevail in Mexico rather than any other
System. This preference results from the fact that
the Constitution of the United States itself is domestic
and republican, and from a belief that not only its
constituent parts ought to preserve the same form and
character, but that, so far as it is practically and justly
attainable by the exercise of moral influences, the many
American States by which the United States are sur-
rounded shall be distinguished by the same peculiari-
ties of government. It is hardly necessary for me to
indicate wherein the présent attitude and proceedings﻿A T TE MP T TO FO RM AN EMPIRE.
99
of the French Government in regard to Mexico seem
to be variant from the policy and sentiments which I
hâve thus described. I may remark, however, in gen-
eral terms, that France appears to us to be lending
her great influence, with a considérable military force,
to destroy the domestic republican government in
Mexico, and to establish there an impérial System
under the sovereignty of an European prince, who,
until he assumed the crown, was a stranger to that
country.
“We do not insist nor claim that Mexico and the
other States on the American continent shall adopt
the political institutions to which we are so earnestly
attached, but we do hold that the peoples of those
countries are entitled to exercise the freedom of
choosing and establishing institutions like our own, if
they are preferred. In no case can we in any way
associate ourselves with efforts of any party or nation
to deprive the people of Mexico of that privilège.”
Again in February, 1866, negotiations in regard to
Mexican affairs having been transferred to Washington,
Mr. Seward used the following forcible language in a
communication to the Marquis de Montholon, Minister
of France at Washington: “ The United States hâve
not claimed, and they do not claim, to know what
arrangements the Emperor may make for the
adjustment of daims for indemnity and redress
in Mexico. It would be, on our part, an act of
intervention to take cognizance of them. We ad-
héré to our position, that the war in question has be-
come a political war between France and the Repub-
lic of Mexico, injurious and dangerous to the United
States and to the republican cause, and we ask only
that in that aspect and character it may be brought to﻿I oo ESSENTIAL A T TRIE U TE S OF A ST A TE.
an end.” These persistent and positive remonstrances
of tha government of the United States made it
impracticable for the French Government to continue
its armed intervention in Mexico, and General Castel-
nan, aide-de-camp of Napoléon III., was sent to préparé
the way for the abdication of Maximilian.
The Cabinet at Washington hearing of this mission,
hastened to appoint Mr. Campbell and General Sherman
as plenipoteniaries to the government of Juarez. The
instructions given to these agents defined perfectîy the
solution which was to be given to the Mexican ques-
tion, as well as the attitude which France was to take
with regard to the empire created under the shadow
of her intervention.
At the last moment,—that is to say, in the early
months of 1867,—Maximilian having refused to abdi-
cate and accompany the French troops in their retire-
ment, France decided to abandon the empire, the
existence of which her material support had prolonged
to this time, and to embark in one movement her en-
tire expeditionary corps. How soon this event was
followed by the tragedv of Queretaro and the down-
fall of the empire is too recent an event of history
to demand further considération here.
Considering the poor success that has hitherto at-
tended the attempted interventions by European
powers in American affairs, it seems unlikely that
other efforts in that direction will be made, so long, at
least, as the United States shall remain an undivided
nation. Should the American Republic ever be dis-
rupted, it is doubtful whether the Monroe doctrine
could be maintained as an influential principle in
American international politics, and the world would
no doubt witness a revival of that policy which re-﻿MEDIA TI ON.
ÎOI
ceived what ought to stand as its death-blow in the
fiasco of the Mexican Empire.
We must not confound intervention with médiation.
The usage of nations authorizes a State to tender its
friendly offices, or its médiation, to settle either the
différences arising between two or more States, or the
intestine dissensions of a country. When such médi-
ation is freely accepted, and, still more, when it is
solicited, the intervention which may follow justifies
itself.
The right of médiation rests both on express con-
ventions and upon treaties of guaranty ; history fur-
nishes numerous instances of this. Médiation is not,
however, always the resuit of a formai treaty, or of
a convention of internai guaranty. It may also
appear under the form of arbitration freely asked
and accepted by the interested party. Médiations
called out by the internai dissensions of a State occur
infrequently, and it is easy to understand that, owing
to the great practical difficulties they involve, States
are slow to offer them.
The absolutç sovereignty of a State involves as a
necessary conséquence its independence in its legisla-
tive and judicial domain. The general conséquence
which flows directly from the independence of the
legislative and judicial power accorded to ail sovereign
States is this, that they hâve the right to punish and re-
ward without foreign interférence of ary sort ; in other
words to bring under the action of their laws and
their courts the national subjects found within the
limits of their territorial jurisdiction.﻿102 ESSENTIAL A T TRI B U TE S O F A S TA TE.
Another of the essential rights inhérent in the inde-
pendence of States is that of self-preservation. This
stands first among the absolute or permanent rights,
and serves as the fundamental base of a great number
of accessory secondary or occasional rights ; it con-
stitutes, we may say, the suprême law of nations, as
well as the impérative duty of citizens, and a society
which does not make use of the means of repelling
foreign aggressions fails in fulfillment of its moral
obligations to its members, and falls short even of the
object of its institution.
SECTION III—EQ UALI T Y.
The equality of sovereign States is a generally re-
cognized principle of public law.
It has the double effect of according the same rights
to States and of imposing on them, severally, the same
duties. Relative extent of territory cannot justify
the least différence in this regard, nor the least dis-
tinction between nations considered as moral individ-
uals ; and in an international point of view, as well
as an équitable, what is^ lawful or unlawful for one
State is equally so for ail.
Sovereign States being absolutely equal, eacli of
them may, within the limits of its sphere of action,
assume whatever rank or dignity it may elect. This
power, however, does not go so far as to oblige other
States to recognize this new rank or dignity. History
shows that when a sovereign assumes a rank or dig-
nity of a higher order than that which previously dis-
tinguished him, the change, designed to do away with
or modify established usage, is not generally recog-
nized immediately by other sovereignties. Thus for﻿QUESTIONS OF PRECEDENCE.
103
instance, the title of King of Prussia, which the Elector
Frederick I. assumed in 1701, was not recognized by
the Pope until 1786. The rank of Emperor of ail
the Russias, taken by Czar Peter in 1701, was acknowl-
edged by France in 1745, by Spain in 1759, and by
Poland in 1764.
Questions of precedence rmong States hâve been,
in former times, of great importance, and hâve given
rise to more than one grave conflict. While in an his-
torié point of view these questions hâve lost nothing
of their value, the developments of civilization, the
loss of the prestige which formerly attached to the
monarchical principle, and finally the progress of the
law of nations, hâve considerably diminished their
importance.
In Europe, the laws of international courtesy hâve
accorded to certain States what are termed royal hon-
ors ; ail the Empires, ail the Kingdoms, the United
States of America, and the Swiss Confédération
enjoy them at présent. Formerly the same honors
pertained to the republics of the Netherlands, Venice,
and Genoa.
The positive law of nations has not determined pre-
cisely the rank of republics in their relations with
empires and kingdoms ; the Vienna Congress failed
to settle this question in 1815. European publicists
hâve generally accorded to republics enjoying royal
honors a place inferior to that of crowned monarchs
of the same class.
In our times, according to the general principles of
international law, republics enjoy, as to precedence,the
same rank as monarchies or any ather sovereign State.
This rank,which was in fact enjoyed by the English
republic under Cromwell, and the French Republic at﻿I04 ESSENTIAL A T TRIBU TE S OF A ST A TE.
the end of the last century, is fully accorded to ail the
American republics.
The représentatives of half sovereign and dépendent
monarchies take rank after the sovereign and indepen-
dent States,although logically their place ought to beat
the side of the représentatives of the countries whose
protection or suzerainty they recognize.
The principle of State equality naturally encounters
embarrassments in the military and naval cérémonial.
This is directly based on the mutual regard and
respect which nations owe to one another, and which
can only be manifested by external signs.
Each State has the power to prescribe what shall be
the military and naval cérémonial within the limits of
its own jurisdiction ; but for its application to other
nations, and for the seulement of daims to which it
may give rise, we must, in the absence of any general
principles, be guided by treaty stipulations, or by es-
tablished usage.
The cérémonial of the sea, which was anciently
tantamount witli certain States to absolute sovereignty
of the seas, has called forth the spécial attention of
publicists and of governments.
As late as the seventeenth century, in fact, this was
by no means a simple act of courtesy, but a mark of
humiliating inferiority to the State which was compelled
to submit to it. One of the principal causes of diffi-
culty growing out of this cérémonial was the salute
wThich ships-of-war belonging to two States were to
give each other when they met at sea. Between na-
tions of equal rank the salute consisted of the ex-
change of a certain number of cannon-shots ; when
there was inequality of rank, in addition to the salvos,
the national colors were lowered or raised, or the top-﻿CEREMONIAL OF THE SE A.	105
sails were furled, or the saluting vessel tacked and
took another direction. In the eyes of the sailors,
custom had attached to these salutes an idea of sub-
X.
mission and respect imposed by stronger nations upon
the weaker. Thus England, wishing to establish the
sovereignty which she claimed over the Brrtish Seas,
decreed in the times of James I. that ail foreign ships-
of-war traversing these seas should salute English
ships of the same class by lowering their topsails and
their flags, without requiring that English ships should
return the salute. This outrageous pretension called
forth energetic protests from such nations as were
strong enough to oppose it. Spain set an example of
résistance, and an ordinance of Philip II. formally
forbade Spanish subjects from lowering the national
colors under any circumstances, requiring that they
should defend themselves, and even allow themselves
to be run down rather than yield the point.
France pursued the same course, and her historians
hâve always blamed the conduct of Sully, who in pro-
ceeding to London as ambassador, condescended so
far as to lower the French fia g before an English war-
vessel.
The following general rules express the existing re-
quirements as to the cérémonial of the sea :
ist. Merchant ships are not obliged to salute ; cap-
tains who do it, either by lowering the colors, or by
furling a sail, perform an act of purely voluntary
courtesy.
2d. Ail sovereign States are on an equal footing in
that which belongs to the cérémonial of the sea.
3d. In the absence of express treaty stipulations,
salutes are not obligatory, and given voluntarily are to
be counted simply as acts of courtesy and étiquette.﻿106 ESSENTIAL ATTRIBUTES OFA STATE.
4th. The act of declining to salute may be consid-
ered as an impoliteness demanding explanation, but
does not authorize a resort to hostile acts.
5th. When two ships-of-war, or two fleets meet on
the open sea, courtesy requires that the officer ol
lower grade salute the one of higher rank, and that
the salute be returned, shot for shot.
6th. A single ship-of-war, whateuer its class, meet-
ing a squadron is bound to give the fîrst salute.
7th. Ships-of-war having on board sovereigns, mem-
bers of royal families, heads of States, or ambassadors,
receive the first salute.
On entering or leaving foreign ports, as in passing
before the forts, batteries, or garrisons of another
State, ships-of-war must give the first salute, whatever
may be the rank of their commanders. Such salutes
are always returned, shot for shot, at the moment of
anchorage, and as soon as the vessel has completed
the number of shots to be exchanged.
This rule is almost always suspended when the ship
has on board princes or diplomatie agents, or any one
authorized to claim a mark of personal deference,
whom the forts, garrisons, or batteries recognize by
giving the first salute.﻿CHAPTER III.
RIGHTS, POWERS, AND DUTIES OF STATES IN A
TIME OF PEACE.
SECTION I—PUBLIC PROPERTY AND EMINENT DOMAIN.
THE State, as an institution, can only exist on the
condition of having the power to dispose, in a cer-
tain manner, and according to circumstances, of ail the
property within its jurisdiction. This necessity has
created the right known as that of eminent domain
(dominium eminens)	So when a people delegates its
power to a sovereign, it confers upon him, ipso facto,
this eminent right, unless it be expressly reserved.
The State as a personality enjoys certain rights and
sustains certain obligations. Among its natural rights
is that of acquiring and holding property. What es-
sentially distinguishes this sovereign right, is that it
takes precedence of that of individuals, admits no
outside interfeffcnce, and implies the power of dispos-
ing freely of what is holden.
States may acquire property by the same means, and
in the same manner, as individuals. They hâve, more-
over, a means of acquisition peculiarly their own, in the
appropriation of territory by right of conquest, which
becomes a more complété and regular title when it has
received the sanction of a formai treaty of relinquish-
ment.
Conquests subsequently legitimatized and recog-
107﻿io8
S TA TES IN A TIME OF PE ACE.
nized by treaties form one of the greatest sources of
acquisition and extension of territory open to States ;
we may even say that since the important modification
of the pnnciple of pure monarchy, allowing the
transfer of sovereignty by means of bequest, donation,
sale, exchange, cession, or pledge, most of the European
States hâve no other title than that of annexation or of
conquest, followed by a prolonged possession, to justify
their sovereign rights as to what constitutes at présent
their continental domain.
The discovery of America, and the explorations
made towards the end of the middle âges in Asia and
Africa, added nevv modes of acquisition and posses-
sion to those previously sanctioned by international
law ; we refer to priority of discovery, first occupa-
tion, and colonization.
Still another source of the right of property per-
taining to nations consists in exclusive and uncon-
tested possession sufïïciently prolonged and uninter-
rupted. This principle, which is founded on the
tacit consent of mankind, is binding on ail States,
and in process of time acquires a force equal to that
of a formai contract, and amounts to a positive in-
ternational right.
In principle, a sovereign State has afï unquestionable
right to alienate whatever it can acquire ; the exer-
cise of the right of alienation is simply subject to
such rules and particular conditions as may be estab-
lished by the internai laws of each State.
For such States as are weak, badly organized, and
too often distracted by parties making use of means
that true patriotism condemns, the unrestrained
right of alienating or encumbering the public domain
to foreigners is not unattended with danger ; for it﻿HO W S TA TES MAY ACQ UIRE P RO P ER T Y. ÎOg
may, for the sake of a temporary advantage, open the
way for actual spoliations in the interest of grasping
and imscrupulous ntighbors. It is undoubtedly a
just provision which, in ail the constitutions of Eu-
ropean States, has made the validity of the alienation
of territory effected by the executive to dépend either
on a vote of the whole people, or upon a formai ap-
proval by the legislative power.
A government de facto, recognized by other States,
and sustaining intimate relations with the mass of the
people, has the same authority, the same rights with
respect to the national territory, as the government it
has succeeded. Whatever it does within the limits
allowed by the public internai law of the State,
whether in the way of acquisition or alienation, isabso-
lutely valid and irrevocable.
The principle of territorial alienation once laid
down, let us inquire as to its practical application.
In general we may say that public property can be
alienated in the ways observed with regard to private
property, by means of leases or mortgages, and by
contracts of sale, exchange, donation, etc. We will
treat successively of each of these modes.
Under the ancient rc'gime it frequentiy happened
among European nations that perpétuai leases were
given in favor of some foreign State or prince.
Sometimes, also, the national territory was alienated
by the constitution of a fief in favor of a foreign
prince or lord.
In the middle âges the pledge of lands for the se-
curity of debts, or for money borrowed, was a com-
mon custom.
Absolute or partial sales of territory hâve been fre-
quent, as in the cases of the purchase by the United﻿IIO
S TA TES IN A TIME OF PEA CE.
States of Louisiana and of Russian America, under
spécial treaties with France and Russia.
Past âges furnish numerous instances of alienation
of territory by cession and donation.
Among instances of this in modem times, we may
mention the cession of the Spanish Netherlands by
Philip V. to Maximilian Manuel, Duke and Elector of
Bavaria ; the cession of Louisiana and New Orléans
made to Spain by France in November, 1762 ; the
rétrocession of the same territory, made in 1800, by
the Spanish Government to France ; the cession of
Florida by Spain to the United States in 1819 ; and
in times more nearly approaching the présent, the ces-
sion of territory by Mexico to the United States in
1848 ; the cessions made, after the wars of 1859 and
1866, of Savoy, of Lombardy, and of Venice, and in
1870 the cession of Alsace and Lorraine to Germany;
and most recent of ail, the cessions of Turkish terri-
tory under the treaty of Berlin the présent year, 1878.
The limits of a state’s jurisdiction include, not
only its territory, but also the waters which pass
through it or enter it ; the harbors, gulfs, mouths of
rivers, and seas enclosed by its territory. The general
usage of nations also allows States to extend their
jurisdiction three marine miles, or the distance of a
cannon-shot, from their shores, and to national ships at
sea.
Harbors and roadsteads belong absolutely to the
nations which control the shores upon which they are
situated. Sovereignty over ' harbors and roadsteads
gives the State the right to déclaré them closed, open,
or free, and to subject ships and goods arriving from
abroad to such duties and régulations as it may judge
to be for its own interests. It is necessary only, in order﻿HARBORS AND ROADSTEADS.
III
that these measures may conform to the principles of
the law of nations, that they should be of a general
character, that is to say, that they should apply equally
to ail nations, and not bestow privilèges that might
violate the law of State equality.
The admission of war vessels into harbors and road-
steads is not alone effected by political considérations
or international custom varying according to times
and places ; sometimes it dépends on a regard to
public order and security.
Thus for instance, in certain commercial centers
ships-of-war are not allowed to enter until they hâve
discharged their stores of powder, which they cannot
re-ship until the eve of their departure.
To avoid ail difficultés which might arise in regard
to naval matters, many governments hâve regulated
the question by means of treaties ; they hâve provided,
especially, that they will admit only a limited number
of foreign naval vessels at one time.
Gulfs andbays naturally defended either by islands,
or ledges of rocks, or sandbars, or by the cross-fire of
cannon placed at their entrances, are under the sover-
eignty of the adjoining territory.
They are governed, as to freedom of access and the
right of jurisdiction, by the principles we hâve laid
down for harbors and interior roadsteads.
There are two kinds of straits : those which lead
into enclosed seas, that is to say, waters the sovereignty
of which pertains exclusively to the state whose shores
they wash ; and those which serve as a means of com-
munication between open seas. The fîrst, constituting
an individual and reserved domain, are governed by
the laws or spécial régulations of the States to which
they belong ; the second, related necessarily to the﻿S TA TES IN A TIME OF PEA CE.
112
interests of different statês, communication between
which they can facilitate, can never be the sovereign
property of one, and ought to be absolutely free for
ail commerce as the seas are to which they lead.
This freedom of access and transit admits, however,
of restrictions inhérent in the right of self-preserva-
tion of the States upon whose shores the straits are
situated ; and when their topography obliges vessels
navigating them to pass within range of forts located
on either side, the sovereign who Controls the shore
has an undoubted right to exercise surveillance over
the navigation, and to take, especially in time of war,
such précautions as prudence and a proper regard to
his safety may render necessary.
It may happen also that the navigation of a strait
may be so very difficult and dangerous that it can only
be effected with the assistance of practised and ex-
perienced men, and with the help of light-houses and
signais. There is no doubt in this case that the State
which in the interest of navigation establishes lights
and pilot stations, has the right to indemnify herself
for expenses incurred, and to impose certain tolls on
the commerce which is benefited.
Strictly limited to what constitutes not a tax, but a
recompense for services rendered, such tolls are un-
doubtedly legitimate, and in accord with true prin-
cipes in such matters.
A notable exception to this rule is found in the
course pursued by Denmark for many centuries in
imposing tolls upon ail merchant ships which passed
through the straits of the Sound and the Belts to enter
or to leave the Baltic Sea. These taxes, fixed and
recognized for the first time by a treaty concluded in
1645 between the Danish Government and the Estâtes﻿THE STRAITS OF THE BALTIC.	113
General of the United Provinces, were afterwards
sanctioned by the other maritime nations.
In the beginning, the collection of these taxes ap-
peared to be the price of a service rendered ; but later,
owing to the general development of commerce, the
net product of the receipts grew out of ail proportion
with the expenses actually incurred by the Danish
treasury, so that the rémunération, assuming the
character of an actual tax, a sort of bounty to sover-
eignty, or extorted tribute, called forth earnest protests
on the part of the commerce which bore the heavy
burden.
The Government of the United States was the
first to resort to active measures for the correction of
the abuse which Denmark perpetuated as a sort of tra-
dition of feudal times.
The energetic and persistent attitude of the United
States, which the other powers were not slow in sec-
onding, finally overcame the interested résistance of
Denmark, and secured for the commerce of the world
the entire suppression of the Sound dues.
In a treaty concluded at Copenhagen, in 1857, be-
tween Denmark on the one hand, and Austna, Bel-
gium, France, Great Britain, Hanover, Mecklenburg-
Schwerin, Oldenburg, the Netherlands, Prussia, Rus-
sia, Sweden and Norway, the Hanse towns of Lubeck,
Bremen, and Hamburg on the other, the Danish Gov-
ernment agreed to abolish ail taxes upon ships passing
from the North Sea to the Baltic and vice versa, which
should simply traverse Danish waters, or stop only on
account of legal détention, accident, the saving of life,
the réception of orders, etc. In view of a pecuniary
indemnity paid into her hands (91,434,975 francs)
Denmark bound herself to preserve and maintain in﻿114	S TA TES IN A TIME OF PEA CE.
good condition the existing lighthouses, buoys, and
beacons, to protect the general interests of navigation,
and to supervise the pilot service, the employment of
which was thenceforward incumbent upon the cap-
tains and owners of ships. The United States settled
separately their quota of the indemnity, which was
fixed at the sum of 717,829 rix-dollars (2,400,000
francs) by atreaty concludedon the nthof April, 1857
Foreign ships-of-war cannot enter the straits of the
Dardanelles or the Bosphorus without spécial permission.
The better to prevent the récurrence of such com-
plications as caused the Eastern war in 1854, the tréaty
of Paris of 1856 proclaimed that the Black Sea should
be thenceforward like the straits, closed to ail naval
vessels, even to those of the two adjacent States ; that
neither Russia nor Turkey should hâve navy-yards
there, and they should only be allowed to maintain
there a fixed number of armed vessels for the protec-
tion of their shores against smuggling. The approach
to this sea is left absolutely free to the merchant marine
of ail nations; and consequently Russia and Turkey
are bound to admit consuls in ail the cities located on
its shores.
International law does not now recognize any ex-
clusive privileged sovereignty over straits located be-
tween open seas, or seas which wash the shores of
separate nations, for the reason that the great com-
mercial highways created by Providence to facilitate
exchanges, draw nations together and develop civiliza-
tion, constitute a common patrimony, the enjoyment
of which should be free to ail, and on noground should
they be monopolized to the profit of any single nation.
The natural limit of a State on the sea-shore is
marked by he configuration of the coasts at those points﻿LIMITS OF SE A TERRITOR Y.
115
where they are washed by the tide, and where the do-
main of the sea begins.
Publicists are far from agreeing as to the extent of
sea territory.
Grotius includes the space which can be defended
from terra firma with the resources furnished by the
art of war. Bynkershoek and Hautefeuille support
this doctrine. Valin looks to nature for the maritime
frontiers of a State. According to him, we ought to
consider maritime territory as extending as far as
soundings can be made.
Rayneval considers the range of a cannon shot as.
too small a measure for the extent of maritime terri-
tory, and he thinks it ought to reach over ail that can
be seen from the coasts, that is to say, to the actual
horizon.
In endeavoring to détermine this matter, it must be
borne in mind that States do not exercise a right of
property over maritime territory, but only a right of
surveillance and jurisdiction in the interest of their
own defense and the protection of their financial in-
terests. The nature of things then would indicate
that the right should extend to a point where the fear
of serious danger ends, to the farthest point that can
be reached by défensive acts.
Since the invention of fire-arms, this space has gen-
erally been considered three miles, within which the
exercise of territorial jurisdiction is absolute.
From an international point of view, this distance
of three miles constitutes henceforward a fixed rule
which must be observed and respected in the absence
of the establishment of any other by treaty.
A maritime interest of highest importance, the car-
rying on of coast fisheries, and the cultivation of oyster﻿Ii6
S TA TES IN A TIME OF PE ACE.
beds, or plantations of other shellfish, has led to the
extent of sea territory beyond the limit of three miles,
in certain localities. Such exceptions to principles
universally adopted should be strictly limited to the
spécial object for which they are allowed ; they need,
moreover, in order to be obligatory, to hâve the sanc-
tion of express and written conventions.
The control of custom-houses within maritime terri-
tory, or those of the marine frontier, is governed by
the principles applied to inland custom-houses. Ar-
rangements are made for the police of ships, visi-
tation and détention of barks or boats suspected of
carrying contraband, capture of prohibited articles,
and punishment of violations of customs régulations,
by fine or imprisonment.
The words coast and shore are used to signify ail the
land which forms the border of the sea, although it
may not always be sufficiently firm to be inhabitable,
but not such lands as are constantly covered with
water. Sir William Scott (Lord Stowell), has sus-
tained this définition in the (Robinson Adm. Reports,
vol. v., p. 385,) case of the Anna, a prize taken at the
mouth of the Mississippi. There are at this point a
number of islands formed of mud and the trunks of
trees, which seem to belong to terra firnia, but which
are constantly changing their form and sometimes
their location. The captors claimed that these islands
did not pertain to the American continent, that they
were nullius, that they could not be permanently in-
habited, that they were with difficulty visited at long
intervals by sportsmen, and finally, that the territory of
the United States did not begin below the Balise, a
fort built by the Spaniards at the actual mouth of the
river, but Sir William Scott invalidated the prize, de-﻿CASE O F THE A DELA.
117
ciding that the islands were subject to the jurisdiction
of the United States, since they were formed of the
détritus of terra firma.
In the case of the Adela, a small British steamer in-
tended to be used as a blockade runner, captured near
the island of Abaco, in July, 1862, it was contendedby
the owners that the capture was unlawful, because
made within a marine league of a shore belonging to
Great Britain. The condemnation of the vessel liaving
been decreed by the United States Circuit Court, and
confirmed by the Suprême Court, the case was brought
before the American and British Mixed Commission
sitting at Washington, 1871-1873.
The counsel for the United States, Hon. Robert S.
Haie, urged “ that the doctrine of the sovereignty of
the proprietary nation over the sea for a marine league
from the shore is founded in the idea of a proper and
necessary protection to the adjacent coasts, and to
the vessels resorting to them for legitimate trade ;—that
in its original inception this doctrine never included
the idea that a vessel engaged in an unlawful voyage
might protect herself from capture, to which she
would be subject on the high seas, by merely skirting
the coast of a harborless and substantially uninhabited
island, such as the island of Abaco ;—that although,
strictly and technically, the coast of such an island
might be within the protection of the rule, it was only
technically so; and that where a claim is set up for
the protection of a vessel actually engaged in an un-
lawful voyage, and claiming a capture otherwise lawful
to be made unlawful by reason of beingwithin amariné
league of the shore of such an island,a judicial tribunal
should require strict and conclusive proof to bring the
vessel within the technical rule, and to satisfy them﻿.J x8 s TA TES IN A TIME OF PEA CE.
that the neutrality of the proprietary nation had been
in fact violated ;—that the burden of proof, therefore,
devolved strictly upon the claimants; and that on the
evidence appearing in this case it would be unjust to
résolve any doubts which the commission might hâve
in this regard in favor of the claimants/’
The claim was unanimously disallowed.
It is unnecessary to prove that seas cannot consti-
tue private property ; but we may inquire if they
are susceptible of becoming the property of a nation.
In answering this question an essential distinction
must be made between the proprietorship and the
empire of seas, terms often used interchangeably,
the confusion of which is one of the causes of the
obscurities and eirors which hâve so long existed on
this subject.
There is a difficulty, purely material and physical,
which stands in the way of the appropriation of the
sea. In law as in fact the right of property exists only
when it rests upon some tangible thing, susceptible
of possession and détention. Now what nation, even
if it concentrated in its hands the navies of the entire
world, could be said tobe in a position to detain effec-
tively or to possess the sea ?
Another conclusive argument against ail right of
property in the high sea is drawn from moral and
philosophical considérations.
In the designs of Providence, so far as He has al-
lowed men to understand them, the seas are a neces-
sary element in the development of nations and in the
progress of civilization ; they constitute a natural
avenue of communication open to the use of ail ; to
attach to them the idea of a réservation, an exclusive
appropriation, is to ignore what is demanded at once﻿SO VEREIGN T Y OF THE SEAS.
119
by the situation and the needs of nations and the di-
versity and equality among States.
By the empire of the seas wë understand the exer-
cise of certain rights of sovereignty. To accord it to
a state, is to give it, with regard to other States, the
right to impose taxes, to regulate navigation, and to as-
sert its rights of jurisdiction at will. Now, if open
seas are not susceptible of exclusive appropriation, the
conclusion is logically necessary that seas can no more
become the empire than they can be the reserved pro-
perty of any single nation.
It has, however, not been without violent controver-
sies that these principles hâve secured a place in
modem international law.
In the middle âges, the exclusive domain of the seas
was almost an axiom of common law, and was claimed
by each nation in turn: and pretensions such as those
of the Republic of Venice seemed quite natural, sup-
ported as they were by the ceremonies which attended
the symbolic marriage of the doges with the Adriatic.
It seems no more incongruous, in the sixteenth cen-
tury, and at the commencement of the seventeenth, to
see the Portuguese forbid the navigation, by other peo-
ples, of the gulf of Guinea and the Indian Océan. In
this category each pretension gave rise to an other as
illegitimate and arbitrary as itself; for when the Eng-
lish under Charles I. and Charles II. claimed the owner-
ship of ail the seas included between the shores of
Great Britain and the coasts of the United States of
America, Holland undertook to control the route
by the Cape of Good Hope to the Philippine Islands,
and Spain arrogated to herself the exclusive sover-
eignty over the Pacific Océan.
This claitn of proprietorship in the waters which sur-﻿120
S TA TES IN A TIME OF PEA CE.
round the globe, to the point of exercising sover-
eignty on the high seas was only one step : more than
one nation made bold to go further, and set up over
the others an impérial authority, a pre-eminence which
an abuse of force might maintain for a time, but could
not legalize. The maritime history of England fur-
nishes many instances of this.
France ne ver recognized this empire of the seas
assumed or claimed by her neighbors, and even as late as
the seventeenth century, Louis XIV. was unwilling that
the Manche should be called the British Channel. It
was in the eighteenth century that the French Republic
inscribed on its naval flag: Freedom of the seas for ail
the world; equality of right s for ail nations.
The Mare liberum of Grotius, first published in 1609,
was written to contest the daims of the Portuguese to
the exclusive dominion of the Indian Océan and the
seas which washed the western shores of Africa. Grotius
déniés the right based on priority of discovery, the
Indies having been known to the Romans, the Persians,
the Arabs, and even to the Venetians, long before the
Portuguese reached them by the way of the Cape. He
disputes no less the right they pretended to dérivé from
the celebrated bull of Alexander VI., since the Pope, in
his opinion, had no authority to act in such matters.
Making a distinction between the right of proprietor-
ship and that of protection and jurisdiction, he déclarés
that if proprietorship is unjust and iniquitous as to
certain things, it is barbarous and inhuman with référ-
encé to the sea.
The doctrine sustained in the Mare liberum was in
direct opposition to the pretensions of the English
government to the exclusive sovereignty of the seas
which surrounded Great Britain. Selden ’took upon﻿SELDEN'S “MARE CLAUSUM."
121
himself to réfuté the work of Grotius, and with this
object published his Mare clausum, in 1635, which he
dedicated to Charles I., and in which he endeavored to
prove that, according to natural law and the law of
nations, the sea is quite as susceptible of appropriation
as the land, and that the King of England had an in-
contestable right to the exclusive domain of the sea
called the British Océan. He quotes seventeen nations
of antiquity who made themselves masters of the seas
which washed their shores. He calls to his support
the bull of Alexander VI., as well as the bull in cœna
Domini. He then answers, and in a certain point
of view successfully, some of the arguments developed
by Grotius in his Mare liberum. “ The right of foreign
vessels,” says Selden, “to traverse seas belonging to
other nations, is like that of a right of way sometimes
imposed on the proprietor of an estate.” Denying the
objection drawn from the impossibility of establishing
bounds and frontiers, which Grotius had raised in
support of the freedom of the seas, Selden urges that
parallels and meridians are frontiers as well defined as
ditches, walls, or rivers.
The work of Grotius is no doubt inferior to that of
Selden in point of scholarship and method; but it has
the higher merit of having proclaimed the freedom of
the seas, thus entering at once into the spirit of modren
civilization.
The public law of Europe,as well as that of America,
now fully recognizes the principle that no nation
possesses an exclusive right of proprietorship on the
high seas; that the flags of ail sovereign nations enjoy
the same rights, on condition of respecting the general
principles of international law; that a relative superior-
ity in naval force gives no State a claim to pre-emi-﻿122
S TA TES IN A TIME OF PEA CE.
nence; that a violation of the rules, from whatever party
it may proceed, is always illegitimate and blâmable;
and finally, that exceptional measuresof surveillance or
police laid down in spécial treaties, with regard to the
ships of two or more nations, can only bind the con-
tracting parties.
The sovereignty of islands formed by alluvial deposits
belongs unquestionably to the nation whose lands and
waters hâve combined to form them. When the islands
are situated near the mainland they are regarded as its
natural dependencies, unless a foreign State shall hâve
acquired a title to their ownership.
The possession and occupation of mainland takes for
granted and includes that of adjacent islands, even
when this is not asserted by any actual act of appro-
priation.
Followingthe principles already established, it is easy
to see that lakes and their shores corne depiano under the
domain of the nation upon whose territory they are situa-
ted. If however, their shores belong to two or more na-
tions, these lakes, whether their waters be sait or fresh,
must be regarded as free seas.
If the freedom of the seas is a principle of justice
definitely established by the law, and recognized by
the practice of nations, it seems logical and natural to
apply it to the navigation of rivers—placing them on the
same footing as seas, requiring that the particular ré-
gulations established by each country, respectively, in
regard to their navigation should not be of a restrictive
nature, and demanding that the authorityof law should
only be brought forward to facilitate and formalize the
rights of ail and cause them to be respected.
Within the last hundred years these principles hâve
prevailed more and more over the early restrictive﻿RIGHTS OF LEGISLATION.
123
policy, until we fïnd at the présent time ail the great
rivers of Europe and America open to commerce, un-
der the lightest possible restrictions.
SECTION II.—LEGISLATIVE RIGHTS.
No State can be regarded as sovereign that is not
free to order and sustain its civil and criminal légis-
lation : and a State which lacks this power must be
regarded as occupying a situation of relative depend-
ence.
Within the boundaries of national territory, the
rights of législation and jurisdiction hâve a wide range.
Each State may and ought to détermine the operation
of its laws in civil and criminal matters ; to lay down
the general conditions of the acquisition and the loss
of rights of property, movable and fixed ; to settle the
status and powers of individuals, the conditions neccs-
sàry to the validity of contracts, the rights and obliga-
tions which pertain thereto ; in fine, ail that belongs to
legal proceedings and the administration of justice.
In our day, however, owing to the number and fre-
quency of international transactions, the exercise of
this legislative and judicial power of States is subject
to certain restrictions as to the scope of its external ef-
fect. It often occurs that an individual possesses pro-
perty in a country other than his own, or that during
a foreign sojourn he makes contracts, signs obligations,
and brings suits at law to secure his rights. In such
cases, conflicts of jurisdiction and of interest may
arise between the country to which the interested
party belongs and that where his property is located or
his contracts hâve been made.
These are the différences which call for the estab-﻿124
S TA TES IN A TIME OF PEA CE.
lishment of private international law, and for seule-
ment according to spécial raies tending to greater
uniformity as the relations of countries become more
intimate and peaceable. The binding force which the
législation of one State may hâve within the territorial
limits of another, dépends on the expressed or implied
consent of the parties in interest. This is gathered
from formai législation on the subject, and from inter-
national engagements, or from judicial decisions and
the opinions of publicists.
When legislators, public officers, courts, and writers
accept the application of foreign législation, we may
say with Fœlix that they conform, not to a necessity,
or to any obligation the fulfillment of which may be de-
manded, but only to considérations of utility and re-
ciprocal convenience : ex comitate, ad reciprocam uti-
litatem.
As to confîicts of jurisdiction, Huber lays down the
following rules : ist, the laws of each State govern
such persons and property as may be found within the
limits of its territory ; 2nd, ail persons residing in a
State, even though but temporarily, are regarded as
subjects of the State ; 3rd, the reciprocal convenience
of nations has led them to agréé that any contract en-
tered into conformably with the laws of the State wherein
it was made, shall be held binding everywhere,
provided it shall not préjudice the interests of other
States, or of their citizens.
These rules appear to be in accord with the princi-
ples of strict equity and international justice. They
are based on the maxim of law, locus contractûs régit
actum.
Real estate, and immovable property of every sort,
must be regarded as forming an intégral part of the﻿LAWS AS TO PERSONAL PROPERTY. 125
proper domain of each nation. The public internai
law of the several States rarely makes a distinction
between domestic and foreign proprietors, and thus the
publicists hâve been led to apply the term real statute to
ail that concerns the possession of or title to immovable
property, indicating that the law takes account rather
of the nature of property than of the status of the
owner. This is the general rule expressed by the
maxim of Roman law, lex loci rei sitœ.
Personal property is governed by rules quite differ-
ent from those which control real estate : it dépends
rather on the person who owns it, and has none of that
character of fixity and unchangeableness which dis-
tinguishes the other. According to the jurists, mova-
bles are considered as attached to the person of the
owner. Agreements or contracts concerning them are
regulated by the laws of the domicile of him to whom
they belong : lex loci dotnicilii. Thus, for instance, itis
the law of the country in which the owner of movable
goods is domiciled at the time ofhis death that governs
the question of succession, and not that of the country
in which the goods may be found.
Contracts are governed by the law of the place in
which they are executed, in accordance with the maxim,
lex loci contractas. This principle applies to every sort of
agreement between men, except in the following
cases :
1.	When the contract is to be fulfilled in a place
other than that in which it was made.
2.	When the contract does violence to good morals or
the positive institutions of the country in which it is
soughtto be enforced.
3.	When it is necessary to estimate the pleas in bar,
as afïecting one of the parties to the contract.﻿I2Ô
S TA TES IN A TIME OF PE ACE.
4.	When both the contracting parties are foreigners.
5.	When it is the évident intention of the contractants
to évadé the laws of their country.
Ail daims or disputes referred to judicial tribunals
must be settled in accordance with territorial law. This
principle admits of no exception, since it is a direct and
natural conséquence of sovereignty. Thus, while lex
domicilii and lex loci contractûs hâve weight in de-
termining the validity of an obligation, whenever the
execution of a contract is to be enforced by legal pro-
cess, lex fori alone governs.
It is in accordance with the territorial laws of each
State that questions are laid before the ordinary courts,
or before spécial tribunals, as to the manner in which
parties are to be subpœnaed; as to whether the time given
to make answer shall be longer or shorter; and finally,
as to the form in which testimony shall be presented.
Ail that can be asked in this matter is that no nation
should show favoritism, that the courts should be as
readily accessible to foreigners as to citizens, and that
equality and impartiality in the administration of justice
should be guaranteed.
In feudal times a foreigner who had acquired landed
estate couldneither transmit this tohis neirs nor to any
foreigner. At his death such property fell to the
sovereign. The privilège of the sovereign to inherit
the property of foreigners was termed droit d' aubaine,
or jus albinagii. In the times referred to, the possession
of land conferred exceptional privilèges, and the spirit
of feudalism demanded the maintenance of this right.
Since the formation of modem nationalities and the
growing intercourse of their inhabitants, the rights of
individuals hâve been more regarded, and this droit
d aubaine has become a thing of the past.﻿MARRI AGE AND DIVORCE.
127
Of a similar charactcr with the droit d* aubaine, was
the droit de détraction, or jus detractûs, in the exercise
of which, property to which strangers out of the coun-
try succeeded was taxed. By an analogous tax, as the
gabelle d’ émigration, those who left a country were
amerced in part of their goods, movable or immovable.
These restrictive provisions no longer exist.
Marriage being regarded in some countries as a
purely civil act, in others as purely religious, and
again in others as an act both civil and religious,
we find these différences exerting an influence in
settling the principles oï private international law
relative to marriages where one or both the parties
are foreigners.
The law of the country where a marriage is cele-
brated détermines in general its validity, with no ex-
ception save as it regards the personal capacity of the
contracting parties, especially with reference to minois
where the formai consent of their guardians is neces-
sary. Certain States, however, qualify this general law
in such manner as to make it désirable for their citizens
when marrying abroad to observe these requirements as
well as the lex loci contradûs
The law of divorce must be, in general, that of the
State in which the parties are domiciled at the time of
divorce. The legality of such acts however, is often
not recognized in cases where a person divorced in a
country other than the one in which he or she was
married, returns to that country, having entered into a
second marriage. In such instances indictment and
conviction for bigamy may ensue.
Every State possesses an absolute and incontestable
right of jurisdiction over its citizens so long as they
remain within the limits of its territory. Certain﻿128
S TA TES IN A TIME OF PE ACE.
publicists hâve gone so far as to claim that the exercise
of this right may be extended so as to control citizens
residing abroad. We cannot âgree with them, for in
the first place it must be remembered that the execu-
tion of foreign judicial decisions rests only on the
principle of international courtesy, and is by no means
uniformly allowed. Moreover, in the présent State of
international relations, it cannot be admitted that a
judgment, for example, confiscating the goods of a
citizen residing abroad, can be executed in the place
of his résidence without impairing the independence
of the nation in which lie ‘is domiciled, even if it
should not be a technical violation of territorial law.
No principle is more universally admitted than that
which accords to local jurisdiction the settlement of
différences between temporary as well as permanent rési-
dents, even when the questions at issue hâve had their
origin in another country.
Certain States hâve adopted the maxim, “Actor
sequitur forum rei.” The United States and England
observe the rule that personal actions concerning any
default or contract must be controlled by the law of
the place where they had their origin.
In France, the courts are authorized to act in suits
between foreigners in the following cases:—
1.	When the obligation was entered into in France,
or in any other country, between foreigners and French
citizens.
2.	When commerical obligations entered into in
France are in question.
3.	When foreigners voluntarily submit a case to the
decision of French tribunaîs.
It is a general principle of law that crimes are local in
their character, and are punished only under the oper-﻿MERCHANT VESSELS IN FOREIGN P OR T S. \ 2g
ation of the penal laws of the country where they are
committed.
There are, however, certain offences which, by rea-
son of their exceptionally grave character, are defined
and punished without regard to the place where they
may hâve been committed. Among the number of
these are treason, counterfeiting the coin or the seal of
the State, bank notes, etc. But for these crimes, even,
the State can only punish the delinquent when he
cornes within its power.
Absolute exemption from local jurisdiction is only
enjoyed by ships-of-war and armed vessels touching at
a foreign port : they being regarded as representing, in
some sort, the country whose flag they carry.
This exemption is never accorded to merchant vessels,
except by express treaty stipulation, such vessels being
looked upon as private property, and the persons on
board asproperly under the jurisdiction of the country
where they are found.
Another equally well established principle regarding
merchant vessels lying in foreign ports, is that they
may not be made a place of refuge for criminals or
fugitives from justice; this immunity being allowed to
naval vessels, since they are regarded, by a legal fiction,
as constituting a part of the territory of the country
to which they belong.
In the absence of positive régulations to the con-
trary, the ports of a nation are considered free and
open to the ships-of-war and privateers of any other
country with whom it is at peace. The principle of
exterritoriality extends also to the prizes they may
bring with them, and to the prisoners which may be
on board their prizes. In certain cases, however,
treaty stipulations provide that prisoners of war brought﻿130
STATES IAT A TIME OF PE ACE.
into a foreign port may be disembarked and handed over
to the custody of the local authorities.
On the high seas vessels-of-war and merchant ships
are alike regarded as being under the jurisdiction of the
State toi which they belong. This right springs in part
from the fiction which regards a vessel as a floating
portion of the land whose flag it carries, and in part
from the principle of the freedom of the seas. It is
absolute in ail that concerns crimes and ordinary offenses
committed against national law; as to violations of the
law of nations, they may be judged by the tribunals of
the country into which the offenders may be brought,
even when the criminal act has been performed in the
open sea, and under a foreign flag. In such cases the
question of nationality practically disappears, in the pré-
sence of offences affecting the interest of society and
the security of commerce in general. The right of
visit or of search on the high seas in pursuit of crim-
inals is only exercised as provided for by formai treaty
stipulations. It is allowable for a State to demand mili-
tary service from its subjects found on the high seas in
ships bearing its own flag, but such action is prohibited
in regard to such subjects as may be on foreign
vessels, even though they found their way there
surreptitiously.
Piracy is oneof those crimes which, by their peculiar
character and the generality of the interests affected by
them, are brought within the domain of the law of na-
tions ; that is to say, are punishable everywhere without
reference to the jurisdiction of one State as above
that of another.
In international language, piracy is understood to
mean ail robbery or pillage of a friendly vessel, ail dé-
prédations, ail acts of violence, committed by armed﻿ORTOLAN ON P /R.AC Y.
131
force on the high seas, against the person or property
of a foreigner, either in time of peace or of war.
To this general définition, borrowed frorn the law
of nations, may be added a second, which dépends
wholly on the spécial enactments of each State to re-
press piracy,—acts being thus declared piratical and
subjected to the pains and penalties of piracy, which
from an international point of view are not crimes, or
misdemeanors; as, for example, the slave trade, in coun-
tries which hâve not abolished slavery, cannot be re-
garded as piracy, though it be so branded by the for-
mai diplomatie acts of other nations.
English and American législation hâve characterized
the slave trade as piracy; and this doctrine was recog-
nized in 1841 by Austria, Prussia, and Russia.
Ortolan discusses very carefully the question whether
the character of piracy should attach to acts com-
mitted by a neutral vessel armed and sailing un-
derletters of marque issued by a belligerent. He main-
tains that the question is not definitely settled by the law
of nations,and that while the captain and crew of such a
vessel may deserve to be treated according to the laws
of war in case of capture, it does not necessa-
rily follow that they are to be condemned as pirates.
The law of nations regards as piratical ail vessels
holding letters of marque from two or more govern-
ments. The laws of some States, however, make excep-
tions in favor of common sailors, treating only the offi-
cers as pirates. As a matter of course, the rules referred
toabove, hâve no application to privateers regularly
commissioned by their own government, or by any one of
its allies, toprey on the commerce of a common enemy.
Is a government authorized to condemn as pirates,
rebels who capture, at sea, goods belonging to loyal﻿I32
STATES IN A TIME OF PEAGE.
citizens ? In answering this question we must take
account of the number and position of the rebels
as compared with the strength of the government.
While it is allowable under the law of nations, for a
sovereign state to repress rébellion by ail the means at
its command, it would notbe considered as just to con-
demn as piratical, acts which other nations, not par-
ties to the strife,would characterize as only belligerent.
This phase of the question came into great prominence
during the progress of the late civil warin the United
States.
In cases of local and limited revoit, there is no
question but that acts of déprédation committed on
the high seas are to be treated as piratical.
The crime of piracy has always been visited with
the severest punishments. Not very many years ago
pirates were hung summarily to the yard-arm. Ad-
vancing civilization has, however, remanded them to
the punishment of proper tribunals, whose duty it is to
take pains that only those who are plainly guilty should
suffer.
Goods of whatever sort found in the posession of
pirates should be restored to their rightful owners.
This principle is universally admitted, except in Spain,
where the law provides that goods taken from a pirate,
which hâve been in his possession twenty-four hours,
shall be regarded as the absolute booty of the captor.
Ail publicists agréé as to the essentially local
character of criminal law, and that a sentence involv-
ing the restraint or punishment of the body, or the
brand of infamy, or the confiscation of goods, can hâve
no effect save in the country under the operation of
whose laws it is pronounced.﻿RECIPROCAL DUTIES OP STATES.
133
Judgments in re rendered by a competent tribunal
are accepted as proof of proprietorship in the thing
contested, when the same question cornes to be debated
anew in another country or before another jurisdiction.
The decrees of competent courts as to contracts
and obligations, are as a general rule, accepted and re-
spected by the courts of other States; the manner of
their execution being, however, determined by treaty
stipulations.
SECTION III—RECIPROCAL OBLIGA T ION S
OF STATES:
In civil life every right involves a corrélative duty:
one cannot exist without the other. This principle
holds with nations as with individuals. The rights of
sovereignty, independence, self-preservation, equality,
proprietorship, législation, and foreign représentation,
the combination of which constitutes the distinctive
character of a State, would be nothing more than
abstractions if they were not recognized and re-
spected by other States. The moral foice which
natural law, or the voluntary contract, créâtes between
man and man, is established by international law be-
tween nation and nation, through those mutual bonds
which impose a corresponding obligation for every
privilège accorded.
The necessary corrélation which exists between
right and duty, leads us naturally to adopt the
same classification for both; dividing the mutual duties
of States into theabsolute and conventional: the former
constituting strict and impérative obligations (stricti
juris); the latter being simple rules of equity, conve-
nenice and courtesy (comiias g entium).﻿134
S TA TES IN A TIME OF PE ACE.
The first class includes those which concern the
administration of justice, and relate to the independence
equality, proprietorship, législation, and jurisdiction of
States; the second comprises those which hâve to do
with diplomatie, commercial, and other voluntary rela-
tions.
The obligation to do justice to other nations at ail times,
and under ail circumstances, is an absolute duty which
no staté can évadé. A failure in this is less easily ex-
cused than a like dereliction between individuals, since
international différences in volve far more serious consé-
quences than private controversies, and further, because
the absence of ail international courts of abitration
renders it often extremely difficult to obtain réparation.
Among the absolute duties oi States, none is more
generally recognized than that of responsibility for the
acts of the state’s agents abroad.
Thus, in 1868, during the civil war in Hayti, an
English war-vessel bombarded Cap Haytien without
authority. The government condemned the act of the
commander, but accepted the responsibility cf hisacts,
and offered pecuniary indemnity to those who had suf-
fered by the bombardment.
In the difficulty between the United States and Para-
guay, growing out of unauthorized acts of the American
Consul, Hopkins, in 1854, the principle of responsibility
was sustained, although the conséquences were not
met as they should hâve been by the United States.
A dispute between England and Paraguay, concern-
ing a glaring outrage committed by Admirai Lus-
lington in Paraguayan waters in 1859, was settled
in favor of the South American State, on the same
principle, by the law officers of the British govern-
ment.﻿RESPONSIBILITY AS TO INDIV/DUALS. 135
Every person who disturbs the public tranquillity,
who interfères with the sovereign rights of a nation, or
who violâtes its laws, déclarés himself its enemy, and
lays himself open to just punishment. The responsi-
bility is not less when, instead of attacking the State,
the offence is against personal security, or the
rights and property of individuals. In either case
the government fails in its duty if it does not en-
deavor to prevent the commission of the injury and
make the offender feel the force of its penal laws. The
State is not merely obliged to ensure peace and jus-
tice among the several members of the community of
which it is the organ; it is especially bound to take
care that those under its authority give no offense
to the governments or citizens of other countries.
In its application, however, this principle, in the very
nature of things, admits of certain exceptions; forthere
are acts which the most vigilant authority cannot antici-
pate, which the wisest and most complété législation
cannot always prevent or restrain.
Ail that other nations can demand of any govern-
ment is, that it shall give proof of its earnest purpose
to be impartial and just, compelling its subjects by
every avaliable means to respect their international
obligations ; that it shall not allow to go unpunished
those offenses which might hâve been prevented; in
fine, that it shall in ail things observe good faith, and
conform to the precepts of natural law; going so far
as to raise a private injury to the level of a public of-
fense, and impute to a whole body politic the wrong-
doing of one of its members. And when any State ac-
cords even a tacit approval to unlawful acts committed
by its subjects abroad, its responsibility for such acts
is unquestionable.﻿1^6	STATES IN A TIME OF PE ACE.
After no little discussion it has been decided that
governments are not responsible for loss or damage
sustained by foreigners in times of internai commo-
tion or civil war.
In support of this doctrine the opinion of Baron
Gros, in the celebrated case of Don Pacifico (1849), may
be cited. Lord Stanley expressed the same view in
Parliament. Rutherforth adds the weight of his judg-
ment; and the concurrence of European and American
governments in this principle has been expressed al-
most without exception during the last quarter of a
century.
The law of nations requires not alone that a State
should prevent its subjects from doing aught that
may be regarded as hostile to the interests of friendly
governments; it demands that it should permit no or-
ganization or combination of whatever nature to be
formed within its territory, calculated to menace the
security of countries with which it sustains friendly
relations.
Certain publicists, it is true, hâve argued that a state
should not be held responsible for hostile expéditions,
when its own citizens take no part in them, and they
are carried on solely by political refugees and émigrants
from other countries. To sustain such a doctrine, is
to fall short of comprehending those moral duties
which bind nations together, to deny the force of the
obligations of neutrality, and to legitimatize ail the
crimes known to international law, such as treason, dé-
sertion, stirring up of rébellion, etc.
Convention al obligations (les devoirs imparfaits) are
those which, not beingbased on absolute, positive right,
are not in their own nature morally binding between
nation and nation. To gain the force and value of inter-﻿MUTUAL RESPECT REQUIRED.	137
national obligations, they must hâve the sanction of ex-
press treaty stipulations, of which the form and nature
vary without limit.
States are bound to show mutual considération and
respect whenever their dignity is concerned; as, for
example, the national flag, public officers, foreign rep-
résentatives, of whatever class, magistrates, function-
aries, military and naval officers, are to be accorded
ail due respect. Any failure to show proper re-
spect in such cases must, however, be understood to
hâve been premeditated in order to give just ground
of offense.
The Providence of God, which bestows its gifts un-
equally over the surface of the globe, creating diver-
sity of climate, giving to certain nations customs, tastes
and aptitudes which it déniés to others, or gives
in less degree, shows thus the profundity of its
designs. Man was not made to live in isolation, but
in the company of his fellows, that he may develop
his intelligence, expand his ideas, and provide for the
supply of his physical needs by giving the products of his
labor in exchange for those of others which he lacks.
The same principle which tends to unité individuals
acts with no less power between nations, creating
for them the necessity for commercial relations, that
powerful lever of modem civilization and national
prosperity.
To impose unjust trammels, to allow monopolies or
discriminations, is to oppose Providence, to attack the
liberty of nations, to raise artificial barriers between
them, and to hinder arbitrarily the beneficent spread of
civilization. The attempt of Portugal to close the
commerce of the Indies to the rest of Europe was
promptly and effectually resisted. The traditional﻿S TA TES IN A TIME O F PE ACE.
138
policy of China and Japan, opposed by the nations of
Europe, sometimes with force, and sometimes through
diplomacy, has yielded in great measure to the prin-
ciple of free intercourse, which is to-day recognized, if
not fully practised, throughout the world.
This principle being admitted, nations must be care-
ful to recognize the right of each to establish such régu-
lations and limits to commerce as may be demanded in
the interests of its own people for the maintenance of
its government.
When a town is besieged, or a port blockaded, neu-
trals hâve no right to give aid to the inhabitants.
When, however, the seat of war is removed to another
place, neutrals are free, and are even morally bound to
heed the calls of humanity in alleviating by ail means
in their power the sufrerings they could not prevent.
States as well as individuals owe each other protec-
tion and assistance. It is not possible to lay down
précisé rules in this matter ; it may be assumed, how-
ever, that a State discharges its duty when it offers to
others such assistance as it would ask for itself.
It is not necessary, in our day, to urge upon nations
the duty of rendering aid to one another in times of
famine, earthquake, fire, inundation, or other public
calamity. The teachings of the Christian religion in
this regard are recognized and accepted among Chris-
tian nations with scarce an exception.
SECTION IF—NA TIONALITY.
A-OF PERSONS.
The nationality of persons is of two sorts: that deter-
mined by birth or parentage, which may be called ori-﻿NA TIONALITY O F ZNDIV1DUALS.
139
ginal, and that growing out of naturalization, which
may be termed acquired.
“ Man is born in a State and remains bound to the
State while he lives,” says Dr. Bluntschli, who ac-
cords to each State the right of freely determining the
conditions under which individuals begin and cease to
belong to the body politic.
According to Fœlix, the first legal power to which
man is subject is the law of the country to which he
belongs by birth.
It is, therefore, of prime importance to détermine
of what nation the new-born child is a member. The
législation of the several nations is by no means uni-
form on the subject. Some States give preference to
considérations of territory, and in ail doubtful cases
allow the place of birth to govern; others, making
greater account of the relations of children to their
parents, allow the nationality of the latter to govern.
This latter principle has corne to be accepted by most
of the States of Europe, and has broken down the feu-
dal tradition, which, in the words of Bluntschli,
“brought man down to the position of an appendage
to the soil.” Bluntschli argues forcibly in favor of
allowing the nationality of parents to détermine that
of their children, and in this. follows the opinion of
Vattel.
Article 10 of the French civil code déclarés “Tout
enfant né d'un Français en pays étranger est Français T
The principle sustained in this rule has been con-
firmed by the législation of many States, including
Belgium, Italy, Bavaria, Prussia, Saxony, Würtem-
burg, Spain, the United States of America, and Great
Britain.
It would seem only just that the reciprocal principle,﻿140
STATES IN A TIME OF PEA CE.
—that is to say, children born in any country of
foreign parents to be considered as belonging abso-
lutely to the paternal nationality,—ought to be recog-
nized. This is the case with the single exception of
England.
An act of Parliament passed in 1870, entirely re-
vised the law relative to foreigners in the United
Kingdom. While maintaining the principle that every
person born on British territory is English, even when
the parents are foreigners, the new law provides that a
person born on British territory of parents who are
the subjects of another State, may, on attaining his
majority, détermine his own nationality, by choosing
between the country in which he was born and that to
which his parents belonged. A majority of the re-
publics of South America hâve adopted in substance
the English principle that the place of birth détermines
the nationality.
In cases of children born out of wedlock, the nation-
ality of the mother is followed, unless the child is legally
recognized by its father, in which case his nationality
is imparted.
Foundlings, whose parentage remains unknown,
naturally assume the nationality of the country in
which they are found.
In general, women acquire, at marriage, the national-
ity of their husbands. English law, however, as in the
matter just treated of, affords an exception to this rule.
An English woman, in the eye of English law, remains
English when she marries a foreigner, and by a glaring
inconsistency, a foreign woman becomes English on
marrying an Englishman.
The principle formerly prévalent, that a State might
so far control individual liberty as to deny its citizens﻿RIGHTS OF NA TURALIZA TION.
141
the right of expatriation, is no longer maintained in
civilized nations.
Vattel accords to every citizen the full right to re-
nounce and abandon his country. This right is based
on principles that inhere in the very nature of politi-
cal society. Who would dare maintain that a man
who could not procure the means of subsistence in his
own country should not hâve the right to seek support
elsewhere? EqualJy are the rights of émigration and
of naturalization to be recognized when governments
exercise tyranny over any number of their subjects—
as in the matter of religious belief.
The conditions under which one acquires and loses
nationality are determined by the public internai law
of each State.
A change of nationality may be effected in two
ways : by legal process, and the voluntary act of the
individual. The cession of a territory, by treaty, sale,
or otherwise, constitutes a legal mode of changing
nationality. The marriage of a woman to a foreigner,
naturalization effected in another country, and, in cer-
tain statc s the acceptance of public office, as also cf mil-
itary service, may serve as instances of change of na-
tionality by the free act of the individual. Of these,
the most important, that which lias given rise to the
greatest difficulties in practice, is naturalization.
Every independent nation has the right of çonferring
citizenship on a foreigner, without Consulting he State
to which that foreigner belongs by birth. A consé-
quence of this general principle, acknowledged Dy the
majoritv of nations, is that if a subject of one country
emigrates voluntarily and fixes his résidence in another
country which confers the rights of citizenship upon
him, the country in which he was born loses ail its﻿142
S TA TES IN A TIME OF PE ACE,
daims upon him,—English law affording the only
exception to this rule.
The United States for a long time inclined towards
the doctrine sustained by England, and claimed that
an American citizen could not lose his nationality
without the consent of the state to which he
belonged. Many important decisions of American
courts hâve, however, done away with this idea, and
established the doctrine that naturalization destroys
anterior citizenship.
In the United States, the person wishing to be nat-
uralized must make a déclaration under oath before
certain judicial officers, of an intent to become a
citizen, and to renounce his former nationality, two
years or later after which, and after five years of rési-
dence he may become a citizen in full of the United
States, although not necessarily a citizen of any state
in the Union.
Until a very recent date,English législation placed great
obstacles in the way of the naturalization of foreigners;
an act of Parliament, and the payment of a sum of
money, and considérable delay being necessary ineach
instance. Moreover, English law did not recognize the
naturalization of British subjects abroad.
An act of Parliament of 1870 accords to British
subjects the right of expatriation and naturalization
abroad. Foreigners may become naturalized in Eng-
land after a résidence of three years, gaining the full
rights of a British subject, including the privilège of
taking a seat in Parliament, and even in the Privy
Council.
In Austria permission to exercise a profession,ten years
of résidence, and the consent of the authorities, are
prerequisites to naturalization.﻿METHODS O F NA TURALIZA TION.
143
In Russia an oath of allegiance to the Emperor natur-
alizes; but naturalized strangers can at any time re-
nounce their character and return to their own
country.
In France the law now in force provides that any
foreigner above the âge of twenty-one years, having
obtained permission to establish his domicile in France
may, after a résidence of three years, acquire ail the
righ;s of a French citizen. The length of résidence
may be reduced to one year when signal services hâve
been rendered the country, or some valuable invention
has been introduced. The case of Count Poniatow-
ski, a Pôle, may be mentioned in this connection, he
having, in 1813, obtained naturalization and the dignity
of Senator of France at the same time, for eminent
services against the Russians.
While it is true that every independent nation has
the right to confer citizenship on a foreigner, it is
equally true that it enjoys the sovereign power of de-
fining the duties of allegiance of its own subjects, and
of forbidding their expatriation. At first glance these
rights seem difficult to reconcile :—the conflict will,
however, on examination, be found to be only apparent.
It must be borne in mind that naturalization is not
governed by the rules of international law, but by those
of public internai law, in each State, coming exclusively
within the domain of territorial législation; and while
it is true that the citizen is always personally free to
renounce his nationality, it is indisputable that when
he finds himself again on his native soil he subjects
himself to the action of its civil or political laws.
The following may be stated as expressing the pré-
sent practice of nations in this regard:
1. That so long as he remains within the jurisdiction﻿144
S TA TES IN A TIME OF PEA CE.
of his adopted country, or of any third nation, the
naturalized citizen enjoys, without interférence, the
benefits acquired with his new nationality.
2. If this naturalization has been sought and
gained in violation of the laws of his own country,
his obligations to that country are not completely
done away with ; and, in the absence of treaty stip-
ulations to the contrary, he may, on his return to his
native country, be required to discharge those ob-
ligations from which he was unlawfully relieved by
émigration.
B.—NATIONALITY OF VESSELS.
Since nations hâve an equal right to make use of
the sea, it naturally follows that this use should be
regulated by acknowledged laws and principles, so or-
dered as to guarantee the rights of each nation, and
to provide for the redressof injuries that maybe inflic-
ted. An essential condition for the security of marine
navigation is, that every vessel should belong to some
nation which may give the necessary guarantees to
other nations, and afïord protection or redress in cases
where the law of nations is violated.
Certain privilèges dépend on the proof of national-
ity of vessels : as for example—the right to carry from
one port to another in the same State : the transpor-
tation of particular articles of trade.
An important distinction is made between na-
tional vessels or ships-of-war, and private or mer-
chant vessels ; the former are regarded as a part of
the military force of the nation whose flag they carry,
having exceptional privilèges and duties; while the
latter hâve only the character of private individ-﻿CONDITIONS OF NA TIONALITY. 145
uals, and as such are subject to the laws which govern
private persons abroad.
The laws of different nations concerning the nation-
ality of vessels présent numerous and marked différ-
ences. In a general way, however, we may state the
principal points on which they bear, as follows : 1. the
place of construction of the ship ; 2. the ownership ;
3. the captain and officers who control it; 4. the crew
which mans it.
In most countries, the nationality of vessels is deter-
mined by a general law termed a navigation act, by
spécial régulations, by articles contained in maritime
codes, and by treaty stipulations.
The nationality of American vessels is regulated
in Title 48, of the Revised Statutes of the United
States.
A vessel, to be considered as national, must eithcr
hâve been built in the United States, or captured in
war and declared a lawful prize, or confiscated and
sold for violation of fédéral laws, or bought after ship-
wreck by one or more American citizens, who hâve
put repairs upon it équivalent to three-fourths of its
value; the vessel must belong wholly to one or more
citizens of the United States, and ail the officers must
be American s.
The conditions of nationality once complied with, a
vessel must be prepared to furnish proof of this, by
means of authentic documents, or by distinctive
signs recognized as declaring to what nation it belongs.
The flag is the visible sign of the nationality of a
vessel. Each State has its own colors, which cannot be
made use of without its permission. But this sign is
not sufficient to prove the nationality of a vessel, since
it may easily be unlawfully used.﻿146 S TA TES IN A TIME OF PEA CE.
Maritime nations hâve agreed, as furnishing adéquate
means of identification, that every merchant vessel
shall be provided with ship' s papers or passes, consisting
ordinarily of a passport or navigation license, a roll of
the ofïïcers and crew, and a bill of sale, or other
evidence of proprietorship. The régulations of different
countries are, however, very diverse as to what shall
constitute ship’s papers.
Ships of commerce must be regarded as but little
else than movable habitations of private associations;
they are subject to the laws of the nation to which they
belong, and which affords them protection; but neither
their captains nor their officers, except in matters of
discipline accorded them by law over their subordinates,
are, properly speaking, représentatives of public author-
ity, and still less do they represent the government of
the country to which they belong.
But this is not the case with vessels-of-war; their
commanders and officers form part of the public
forces, and are, in a certain measure, the représenta-
tives of the executive and judicial power of their
country.
This fundamental différence between the two classes
of vessels leads naturally and logically to one not less
marked in the conditions of nationality, and the proofs
to be given of its existence.
The proofs of nationality in the case of a vessel-
of-war are sought, first of ail, in the flag, and espe-
cially in the military pennant carried at the mast-
head; secondly, in the déclaration of the command-
ing officer on his word of honor, and in the commis-
sion he carries.
The flag and the pennant are visible proofs; but
in certain cases it is required that their exhibition be﻿DEFINITION OF EXTRADITION.
147
accompanied by a cannon shot, called a coup d ’assur-
ance, or a salute
The déclaration of the commanding ofïïcer does
away with ail other proof; inopen sea or elsewhere the
foreign power which is not satisfied with this commits a
serious breaçh of the general principles of international
law
Usage has always included as ships-of-war vessels
specially chartered for the transport of troops, provis-
ions, stores, and whatever else may belong to the gov
ernment, these vessels being under the command of
naval officers.
SECTION V.—EXTRADITION.
Extradition is the act by which one government
delivers up an individual charged with violation of law
outside the limits of its territory, to another govern-
ment which daims the right to judge and punish
him.
The right of a State to restrain its subjects is naturally
limited to the extent of its territorial jurisdiction,
outside of which its laws lose ail effect.
Fiom which it follows that infractions of these laws,
having a purely local character, can only be prosecuted
in the country where they are committed, and if the
offenders take refuge in another State, their ofïences
remain unpunished, unless the State whose laws hâve
been violated can obtain the extradition of the cul-
prits.
Although differing among themselves as to the abso-
lute right of extradition, publicists are agreed that it
is a duty enjoined by public morality. But while the﻿148 STA TES IN a TIME OF PE ACE.
principle is generally admitted, it is by no means car-
ried into practice under fixed and précisé rules; it is
still more or less influenced by precedents established
by diplomatie agreements, the negotiators of which al-
lowed themselves to be guided by considérations of a
political character, rather than by those of. equity and
pure law.
This explains how it is that the execution of treaties
of extradition has, on very many occasions, given rise
to serious difficultés, aggravated by préjudice and pas-
sion, from which the judges called upon to décidé
hâve not always been able to free themselves.
The practice of extradition dates back to very
remote times. Among the Jews we see the tribes of
Israël demanding the tribe of Benjamin to deliver the
men of Gibeon who had taken refuge in the territory
of the Benjamites, after having committed a crime; and
we read that the Israélites delivered Samson to the Phil-
istines.
In Greece, the Lacedæmonians declared war against
the Messenians, because they refused to deliver up a
murderer. The Athenians declared their willingness
to deliver up those who took refuge in their territory
after having attempted the life of Philip of Macedon.
In ancient times, however, extradition was not the
application of a principle of international law. It was
onl.ÿ conceded in very many cases under threats of
violence; and was often seriously interfered with by
the right of asylum, which was recognized among ail
nations as a sacred right, supported by religion, plac-
ing those who invoked it, so to speak, under the hand
of divinity. Originally places of refuge were open to
the unfortunate, the weak ; to the persecuted, rather
than to the culprit; to people flying from defeat, to﻿HISTORICAL EXTRADITION.
149
kings dethroned, to exiles, to abettors of crime through
imprudence. But these restrictions hâve never been
rigorously observed: actual malefactors came to be
most frequent among those seeking the sacred places,
and criminals tfeing no longer distinguished from the
persecuted, the immunity of asylums became a source
of abuse.
It is in Roman législation that we find the first traces
of régulations concerning extradition. When a Roman
citizen had committed an offence against a foreigner,
constituting a breach of the peace in a friendly State,
he was brought before a spécial tribunal, that of the
recuperatores, which dècided whether he should be deliv-
ered to the State to which the injured party belonged.
Such extradition was effected without difficulty when
the offence was one not only against an individual but
against the foreign State: but beyond crimes of a pub-
lic nature, it cannot be claimed that the Romans prac-
tised extradition in any constant and regular manner.
It is easy to understand that when the world formed
but one empire extradition had no reason to exist.
The transfer from one province to another of a crim-
inal fleeing from justice became a measure of internai
police; and extradition, properly so-called, had no being
save when Rome demanded of barbarous nations the
chiefs who fomented war, or the Roman citizens who
had taken refuge there.
At the fall of the Roman Empire, the revival of
separate nationalities brought with it, naturally, the
revival of the right of extradition ; but its exercise
was interfered with by the hostilities of race and the
enmities born of conquest, by the spécial right of asy-
lum growing out of the teachings of the Christian
Church, and finally by the introduction of a territorial﻿i5o
STATES IN A TIME OF PEA CE.
right of asylum. Each country accorded this right to
foreigners seeking to take advantage of it, and against
such no proceedings could be brought except by con-
sent of the sovereign, in whose hands the power of al-
lowing or ordering extradition was vested. This right
seems to hâve been maintained in France as late as
1830.
It was not until near the close of the eighteenth cen-
tury that extradition treaties assumed a general and
stable character, that made between France and Spain
in 1765 being the first of importance.
This treaty provided for the easy and speedy rendi-
tion of criminals, on the réquisition of either court,
and even on the demand of the commanding officers
at the frontiers. Treaties between France and the
governments of Würtemburg in the same year, Spain
and Portugal jointly in 1783, Switzerland in 1798, Eng-
land in 1787, tended greatly to settle the principle of
extradition, and the présent century affords an almost
continuous record of diplomatie acts between the na-
tions of Europe and America, which serve to place
extradition among the rights fully sanctioned by the
law of nations.
The right is not, however, understood to cover of-
fences of a trifling character, nor those which are of
a purely political nature : but foreigners may not be
allowed to plot against the person of their sovereign,
or against the institutions of their native country.
The question of extradition was first discussed in
the United States in the year 1784, in the affair between
Longchamps and Marbois, both officers of the French
Government.
The question whether Longchamps, who had made
a personal assault on Marbois, could be lawfully﻿FIRST TREATY WITH ENGL A ND.
151
handed over to the French Government, was decided
by the court of oyer and terminer, in Philadelphia, in
the négative, on the ground that no extradition treaty
existed between France and the United States.
In 1791 the Government of the State of South Caro-
lina requested the President of the United States to
demand of the Governor of Florida, then belonging to
Spain, the rendition of certain individuals who had
fled to Florida after committing crimes in South Caro-
lina. The Secretary of State denied the request, on
the ground that “ the laws of the United States pro-
tected ail refugees, and conferred no power on the
executive authorities to deliver them up.” u If, then,”
he concludes, “the United States could not deliver to
General Quesada (the Spanish Governor of Florida) such
persons as might escape from the laws of his country
by flight, we cannot claim, as a right, the return of
those who may flee from our territory.”
The first international agreement entered into by
the United States with reference to extradition was
what is known as the Jay treaty, concluded in 1794»
with Great Britain.
This treaty was limited in its operations to the
period of twelve years. During this period a case oc-
curred involving a man named Robbins,an American cit-
izen, whose extradition was demanded by England, on a
charge of murder committed on board an English
vessel.
Robbins was brought before the circuit court in
South Carolina on a writ of habeas corpus, and it was
urged in his favor that the treaty provided only for the
extradition of foreigners ; that as the crime was com-
mitted on the high seas the United States courts were
competent to try him ; and, moreover, that the provis-﻿152
STATES IN A TIME OF PE ACE.
ions of the treaty were contrary to the Constitution of
the United States.
The Secretary of State had, however, addressed a
letter to the judge, stating that the British Minister de-
manded the surrender of Robbins, and that the Presi-
dent required him to comply with this demand.
The prisoner was accordingly handed over to the
British Consul, and was soon sent to Jamaica, tried by
court-martial, and hung.
This affair so excited popular sentiment in the
United States, that no attempt was made to renew the
Jay treaty at its expiration, and no provisions for ex-
tradition existed between the two countries until 1842,
when the Ashburton treaty was ratified.
The year following, the United States concluded a
similar extradition treaty with France,modified and com-
pleted by additional stipulations in 1845 and in 1858.
Similar treaties were made with Prussia and the
German Confédération in 1852, with Bavaria in 1853,
with Hanover in 1855, with the two Sicilies in 1856,
Austria in 1856, Baden in 1857, Sweden and Norway
in 1863, Hayti in 1864, the Hawaiian Islands in 1849,
Switzerland in 1850, Venezuela in 1861, the- Domini-
can Republic in i867,Italyin 1868, Nicaragua in 1871,
and with Spain in 1877.
During the year 1876 the operation of the so-called
Ashburton treaty of 1842 with Great Britain, was
suspended and resumed under çircumstances of pecu-
liar interest.
The extradition of three noted criminals, Winslow,
Gray, and Brent, was refused by Great Britain, because
the Government of the United States declined torecog-
nize the right of Great Britain to demand, through a
simple act of Parliament, what was nowhere conceded﻿SUSPENSION OF TREATY OF 1842.	153
in the treaty. In the actof 1870 the following clause
occurs:—“ 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 crim-
inal shall not, until he has been restored, or had an op-
portunity of returning to Her Majesty’s dominions, be
detained or tried in the foreign State for any offence
committed prior to his surrender, other than the ex-
tradition crime proved by the facts on which the sur-
render is grounded.”
The British Government demanded, as a condition
to the extradition of Winslow, Gray, and Brent, that
the Government of the United States should agréé
that they should be tried for no other crimes than
those on account of which their extradition was asked.
The Government at Washington held that they were
not bound to give any such assurances by the Ashbur-
ton treaty, and disputed the power of Great Britain to
supersede or supplément the provisions of a treaty by
an act of Parliament.
Great Britain, however, declined to yieldher position;
and, after some delay, released the prisoners from
custody.
Whereupon the President of the United States in-
formed Congress, in a spécial message, that he felt
called upon to suspend the operation of the Ashburton
treaty.
Not many months elapsed, however, before it be-
came évident that the suspension of the tfeaty was
operating most unfavorably to the interests of justice
in both countries, several murderers, besides other crim-
inals, having eluded punishment by Crossing thedivid-
ing line between the United States and Canada. And
in October, Sir Edward Thornton, British Minister at﻿154
S TA TES IN A TIME OF PEA CE.
Washington, informed Mr. Fish, the Secretary of State
of the United States,—“that Her Majesty’s Govern-
ment, having regard to the very serious inconvenience
and great encouragement to crime which would arise
from the continued suspension of the extradition of
criminals between the British dominions and the
United States, will be prepared, as a temporary meas-
ure, until a new extradition treaty can be concluded,
to put in force ail powers vested in it for the surrender
of accused persons to the Government of the United
States u’nder the treaty of 1842, without askingfor any
engagement as to such persons not being tried in the
United States for other than the offences for which ex-
tradition has been demanded.”
Brent was soon after surrendered to the authorities
of the United States, but Winslowand Gray madegood
their escape.
In December of the same year (1876) the President
informed Congress, that in view of the surrender of
Brent “ without condition or stipulation of any kind,”
he should “again regard the treaty as operative, hoping
to be able, before long, to concludewith Her Majesty’s
Government a new treaty, of a broader and more con-
prehensive nature.”
Since the right to surrender criminal refugees is in-
hérent to the sovereignty of a State, extradition may be
asked and accorded betwen nations having no treaty
or agreement in reference thereto. In such cases,
however, it cannot be demanded as a right, and isonly
conceded as an expression of good-will under the golden
rule of international comity.
Two interesting cases illustrating this principle hâve
occurred between Spain and the United States within a
few years. The first is that of Arguelles,an officer of the﻿CASE O F A RG U ELLE S.
155
Spanish Government in a Cuban port, to which, in the
year 1864, there came a siave-trader, having on board a
cargo of negroes.
Having received orders to set the negroes at liberty,
Arguelles reported to his superiors in authority that a
hundred and forty-one of them had died of the small-
pox. Shortly afterwards, it appeared that these blacks
had been sold as slaves through the aid of fraudulent
papers issued by Arguelles, and that he had fled to
New York.
The Captain-General of Cuba, through the Spanish
Minister at Washington, brought the facts in the case
to the knowledge of the Government of the United
States, and requested the arrest and extradition of
Arguelles, not only on the ground of the enormity of
his crime, but because his presence in Cuba was neces-
sary to the libération of the negroes whom he had
sold into slavery. Mr. Seward, who was then Secretary
of State, at once ordered the arrest of Arguelles, and
he was seizedin his lodgings, at the New York Hôtel,
placed at once in the hands of an agent of the Spanish
Government, and taken to Cuba without delay.
This act provoked sharp criticism in the Congress of
the United States, and the President was called upon to
show by what right the extradition of Arguelles had
been ordered.
The President, in reply, transmitted to Congress the
request of the Spanish Government for the extradition,
together with a report from the Secretary of State, in
which it was urgedthat: “There being no treaty of
extradition between the United States and Spain, nor
any act of Congress directing how fugitives from jus-
tice in Spanish dominions shall be delivered up, the
extradition in the case referred to in the resolution﻿156	s TA TES IN A TIME OF PEA CE.
of the Senate is understood by this department to hâve
been made in virtue of the law of nations and the
Constitution of the United States.
“ Although there is a conflict of authorities concern-
ing the expediency of exercising coraity towards a
foreign government by surrendering, at its request, one
of its own subjects charged with the commission of
crime within its territory, and although it may be con-
ceded that there is no national obligation tomake such
a surrender upon a demand therefor, unless it is ac-
knowledged by treaty or by statute-law, yet a nation is
never bound to furnish asylum to dangerous crimi-
nais, who are offenders against the human race; and it
is believed that if, in any case, the comity could with
propriety be practiced, the one which is understood to
hâve called forth the resolution furnished a just occa-
sion for its exercise.”
A resolution characterizing this act as a violation of
the constitution, and of the right of asylum, was re-
jected in the House of Représentatives by a large ma-
jority.
Twelve years later, there still being no treaty of
extradition between Spain and the United States, the
government of the former country had an opportunity
to reciprocate the courtesy of that of the latter in the
c?ase of Arguelles, which was embraced with alacrity.
In the summer of 1876, William M. Tweed, a no-
tai ious peculator of public funds in New York city,
had fled from his country and taken refuge in
Cuba, and was proceedmg thence in a sailing-vessel
to Spain.
The Spamsh Government being informed by the
United States légation at Madrid of the character and
offence of Tweed, and of his probable landing in Spain,﻿TREATY WITH SP A IN.
157
and being made aware of the satisfaction which
would be occasioned by his voluntary extradition in
furtherance of the ends of justice, caused him to be ar-
rested at the moment of his arrivai at Vigo. Tweed
was confined for some weeks in the citadel at that
place, and then handed over to Capt. S. R. Franklin,
commander of the United States naval vessel, the
Franklin, which went to Vigo to receive him and con-
vey him to the United States.
Almost immediately following the extradition of
Tweed, negotiations were entered upon at Madrid,
between the Spanish and United States Governments
for the conclusion of an extradition treaty; and in
January, 1877, these negotiations were brought to a suc-
cessful issue by Mr. Cushing, Minister of the United
States at Madrid. Ratifications of the treaty were ex-
changed at Washington in February following.
Extradition of deserters from the army and navy, or
from the merchant marine, is an act of pure interna-
tional courtesy, for the convenience of States and the ad-
vantage of maritime commerce. Régulations with regard
to it are very summary, and are freed from the formal-
ities required in case of the extradition of criminals.
Nearly ail the continental States of Europe are under
obligations with one another to return deserting sol-
diers.
England was a party to similar engagements during
the last century; but latterly these hâve been allowed
to expire, and Great Britain at présent provides only
for the extradition of sailors, in pursuance of an
act of Parliament passed in 1852.
The United States provides for the extradition of
deserting sailors by clauses inserted in their commer-
cial treaties with other nations.﻿158
STATES IN A. TIME O F TE A CE.
SECTION VI.—THE RIGHT O F REPRESENTA T 10 N.
A.—DIPLOMACY.
Diplomacy may be defined as the art of negotiation :
and a knowledge of its rules and usages is indispensa-
ble for the satisfactory conduct of international affairs.
From the moment of its formation a State is con-
scious of needing neighbors, and from their mutual
utility grows that intercourse which is natural, not to
say inévitable.
Throughout antiquity, even among those nations
which regarded foreigners as enemies, we see ambassa-
dorsand heralds bearing messages from prince to prince,
from State to State, giving notice of war, or proposing
peace, alliances, etc.
But these messages do not seem to hâve been gov-
erned by any regular or permanent System; ambassa-
dors were sent on spécial occasions, and they returned
when they had attained the object of their mission, or
when they found it was unattainable.
It was during the middle âges, in Italy, that diplo-
macy began to be practised as an art, and taught as a
science by diplomats, properly so-called. Diplomacy,
which up to this period partook naturallv of the sim-
plicity and rudeness of the times, became in this school
of savants, at the head of which stood Machiavelli, an
art full of subtleties and ruses; an art of dissimulation
veiled bythe mask of conventional forms: and afitting
instrument of a policy of selfishness and intrigue.
In the fifteenth century, the general upheaval which
took place in Europe, through the fall of the Byzan-
tine Empire, the invention of printing, and of powder and
cannon, thediscovery of America, and the revival of lit-
erature and the fine arts, conspired to give a new im-
4﻿OBJECT OF DIPLOMACY.
159
puise to diplomacy. Governments were engaged in con-
tinuai negotiations, often very complicated, which had to
be carried on by correspondence, rendering the employ-
aient of delegates or spécial ministers constantly neces-
sary. In the next century, the kings of France estab-
lished a ministry of foreign affairs. Cardinal Riche-
lieu inaugurated the System, which prevails to-day, of
maintaining permanent légations at foreign courts. At
the same epoch Western Europe sent ambassadors to
those countries which had before been regarded as
outside the circle of civilized nations, such as Russia,
Persia, Siam, and other Eastern countries.
The peace of Westphalia (1648), in promulgating the
doctrine of European equilibrium, for the maintenance
of which the States charged themselves with the duty
of mutual surveillance, established the usage of per-
manent légations, which has since been main-
tained.
The essential object of diplomacy is to assure the
well-being of nations, to maintain peace and harmony
between them, and above ail to guarantee the security,
tranquillity, and dignity of each. The rôle of diplo-
matie agents consists principally in conducting negotia-
tions relative to these important objects, in seeing to the
execution of treaties or conventions, in preventing what-
ever might préjudice the interests of their fellow-citi-
zens, and in protecting those from their own countries
who claim their assistance.
Among the studies essential to the diplomat, Baron
Charles de Martens, in his Guide diplomatique, men-
tions the natural law of nations and universal public
law, which includes the fundamental maxims of ail posi-
tive jurisprudence ; the positive international law
of Europe, as founded on treaties and on usage,﻿i6o
S TA TES IN A TIME OF PEA CE.
which having raodified more or less the fundamental
maxims, has governed the intercourse of nations ,
the internai law of the principal States of Europe ; his-
tory, especially the history of the wars, negotiations and
treaties of the last few centuries, which serve to reveal
the policy and tendencies of governments; the several
political Systems, which are in existence ; political
economy, which teaches how the wealth of na-
tions is created, distributed, and consumed; the geo-
graphy and statistics of States ; the conduct of negotia-
tions, or the course to be followed in international dis-
cussions, the art of composing the instruments to which
international relations give rise. De Martens further
insists on a knowledge of the principal living languages,
especially French, English, and German.
In certain countries conditions are imposed, as to
academie attainments and examinations, upon those
who seek appointments to diplomatie positions.
It is to be regretted that in the United States such
attainments as those suggested by de Martens, are
not demanded by law of ail who enter the diplomatie
service.
B.--DIPLOMATIC AGENTS.
Among the essential attributes of sovereignity and
independence of nations is the right of légation; that is
to say, the right of being represented abroad by diplo-
matie and consular agents charged with the duty of
cultivating relations of amity and friendship with other
nations.
The right of légation is regarded as an absolute right
in principle, but is imperfectly exercised in practice ;
since no State is obliged to maintain embassies abroad,
nor to receive the représentatives of other nations.
Usage, and the rules of international courtesy, hâve,﻿RIGHT O F LE GA TION.	\ 61
however, established a sort of reciprocal duty in this
matter, to such a degree, even, as that the existence of
permanent diplomatie relations sustained by résident
agents is taken as evidence of peace and amity, and
the withdrawal or absence of these is regarded as
affording proof of hostile intent.
Half sovereign and dépendent States cannot claim
the right of légation. The States forming the United
States of America, also those of the several confédéra-
tions of South America, the cantons of Switzerland,
and the States composing the German Empire, hâve
surrendered the right of légation to the central
governments under whose control they hâve been
placed.
When a State is disturbed by civil war, it is the
duty of the représentatives of foreign nations to ab-
stain from ail interférence, and to maintain diplomatie
relations with the government de facto.
And when civil war distracts confédérations, the
obligations to non-interférence are even more strict—
since any récognition of diplomatie relations with the
insurgent forces would imply the récognition of their
independence.
A State may décliné to receive diplomatie agents,
basing its objections either on personal grounds, or on
the nature and extent of the powers conferred on the
agent.
Certain States refuse to receive their own subjects
as the représentatives of foreign governments.
Calvo erroneously cites, as an instance of thispolicy,
the case of Mr. Burlingame, an American citizen, who
went to Pékin as United States Minister, and who was
appointed by the Emperor of China as his ambassa-
dor to the governments of Europe and America. The﻿IÔ2
STATES IN A TIME OF PE ACE,
United States receive no diplomatie représentatives of
the rank of ambassador, forthe reason that they send out
no such officers, since an ambassador represents the
person of the sovereign (see p. 163), and the spirit of
American institutions is opposed to personal govern-
ment. Mr. * Burlingame was received as a minister
plenipotentiary, and, moreover, his status as a citizen of
the United States was not affected by his acting as a
diplomatie agent of China.
To put an end to embarrassing disputes which .had
often disturbed the harmony of diplomatie intercourse,
the Congress of Vienna adopted, on the içth of March,
1815, a régulation dividing diplomatie agents into
three classes:—
I. Ambassadors, legates, or nuncios;
IL Envoys, ministers plenipotentiary, or others ac-
credited to sovereigns;
III. Chaigés a’affaires, accredited to ministers of
foreign affairs.
The Congress of Aix-la-Chapelle, in 1818, provided
for a fourth class taking rank between the second and
third mentioned above, viz.:—Ministers résident, ac-
credited to sovereigns.
According to the provisions of the Congress of
Vienna, agents of the first class alone hâve the repré-
sentative character. As to the rank of a minister who
shall represent a State at a particular court, the gen-
eral rule is that one of such rank and title is sent as
has been usually received from the other party; and
that the sovereigns having a royal title neither send
ministers of the first rank to, nor receive them from in-
ferior powers.
In regard to diplomatie étiquette, Dr. Wheaton ob-
serves that while it is in great part a code of manners,﻿DIPLOMATIC ETIQUETTE.	163
and not of laws, there are certain rules, the breach of
which may hinder the performance of more serious
duties. Such is the rule requiring a reciprocation of
diplomatie visits between ministers résident at the
same court.
As for the cérémonial of courts, an ambassador is to
regard himself as the représentative of national polite-
ness and good will, but to submit to no ceremony
abroad which would be accounted degrading at home;
for nothing can be demanded of him inconsistent with
the honor of his country.
Spécial honors are shown to ambassadors, as
representing the persons of their sovereigns. Formerly,
on reaching the capital, and even in passing through
a town or city, they received the same honors that
would be shown to the sovereign himself. But these
solemn or formai entries hâve fallen into disuse. It is
still the custom, however, to salute ambassadors arriv-
ing at a seaport, with cannon shots from the fortifica-
tions.
Ail members of the diplomatie corps enjoy certain
distinctions in the royal résidences; as, for instance, on
public occasions places are reserved for them by the
the side of princes of the blood; military honors are
accorded them on many occasions, and they are invited
to ail the court fêtes.
An ambassador may be recalled, or sent home, or
for some urgent reason déclaré his mission terminated,
or it may expire by its own limitation, or by the com-
pletion of certain official work, or by the death of the
sovereign sending the ambassador, or of the sovereign
to whom he is sent, or yet again, by a change in his
diplomatie rank.
Spécial powers with regard to their countrymen are﻿164	S TA TES IN A TIME OF PE ACE.
devolved upon ambassadors and heads of légation by
most States. They are authorized to draw up and take
acknowledgment of civil acts in the capacity of
notariés, such as contracts of marriage, wills, dona-
tions, etc., and to issue or endorse passports.
The minister is bound to protect his contrymen
against arbitrary proceedings, or déniais of justice on
the part of the local authorities, and especially to take
cognizance of any violations of treaty stipulations.
Such protection ought, however, to be semi-official and
optional in affairs of a purely private nature, and in no
way involving the general interests of the country.
C.—CONSULS.
The establishment of cohsulates dates back to the
time of the crusades. The maritime cities of Italy,
most prominently Genoa and Venice, monopolized the
carrying trade for the crusaders. .And to facilitate
these operations they established bureaux in Asia
Minor. The institution of the great entrepôts proved
of so great advantage, and was so favorably received
in certain quarters, that the articles they imported or
exported were declared free from duty; and that their
growth might be favored still more, certain quarters
were assigned for the résidence of their emplovés,
and these were at the same time allowed to settle their
disputes according to their own laws, andbefore judges
of their own choosing, to whom the name of consul was
given. The establishing of consulates did not, how-
ever, become general until the sixteenth century, when
the position of consul grew in importance. No longer
the simple delegates of a company of merchants, these
agents became the direct représentatives of the country
to which they belonged.﻿OBJECT O F CONSULATES.	165
A century later, at the peace of Westphalia, the con-
sulate underwent another change that was not less radi-
cal. The continental States werenow definitely estab-
lished; the reorganization of judicial administration
was everywhere effected, the spheres of commerce and
industry were greatly enlarged. Under these circum-
stances the consuls were naturally depi ived of their char-
acter as judges, and even of that of agents or factors
of their countrymen, and came to be held exclu-
sively as official agents of their governmcnts, to
look after the general interests of the maritime com-
merce of their country. Such, to-day, is the rôle cf
these agents in Europe and America. In the East,
however, in Africa, in the Mohammedan countries, in
China and Japan, consuls, by virtue of spécial treaty
stipulations, bave retained the power of exercising judi-
cial functions in criminal as well as civil cases
The essential, but not exclusive attributes of consuls
are :
1.	To protect the commerce and navigation of
their countrymen in foreign ports ; to maintain their
rights and privilèges ; to see to the executior of trea-
ties and conventions, as well as to carry out the man-
dates of their sovereigns in regard to commerce and
navigation ; to render succor and support to their com-
patriots.
2.	To exercise a certain jurisdiction over the sub-
jects of their own country during the time of their
résidence in foreign lands.
3.	To furnish to their government ail information
necessary to the prosperity of industrial pursuits, com-
merce, and navigation.
Ail the consulates of one nation established within
the same foreign country, form what is called a con-﻿i66
S TA TES IN A TIME OF PE ACE.
sular establishment, placed under the control of a di-
plomatie agent, or, in che absence of a permanent léga-
tion, under the direction of a consul-general.
In general practice among nations \ve find consular
officers graded as follows:—
Consuls-general, consuls, vice-consuls, and consular
or commercial agents.
The commission of a consul is the official docu-
ment signed by the head of the State to which the
agent belongs, and which déclarés the title and powers
conferred upon him. The original of this commission
ought to be transmitted through diplomatie channels
to the government of the country on whose territory
the consul is directed to résidé, so that the Govern-
ment may issue his exequatur: which term is applied
to the act which recognizes the agent in his official ca-
pacity, admits him to the free exercise of his functions,
guarantees to him the rights and prérogatives pertaining
to his office, and enjoins upon the judicial and admin-
istrative authorities the duty of lending him ail the aid
and support he may need.
Every government is free to designate the places
where foreign consuls may exercise their functions.
The exequatur may be refused or withdrawn at the
pleasure of the sovereign.
A question which has occupied much attention of
late is whether consuls are invested with a représenta-
tive or diplomatie character.
The English and North American publicists deny
absolutely any représentative character as appertain-
ing to the consulate.
Wheaton is of the opinion that whatever protec-
tion may be accorded to consuls in the exercise of
their functions, they can never, under the general﻿PRIVILEGES OF CONSULS.	167
principles of# the law of nations/ enjoy the immunities
accorded to diplomatie agents, and that consuls
are subject in civil matters as well as criminal, to
the laws of the country wherein they résidé.
The privilèges and personal immunities of con-
suls vary according to usage, treaty stipulations, or
the prescriptions of public general law.
France, for instance, in the absence of treaty pro-
visions to the contrary, attaches a public character to
her consuls, according the same to foreign agents, thus
enlarging the circle of their immunities.
England, on the other hand, déniés every species
of spécial and personal advantage to the consuls she
admits to her ports ; though this has not hindered her
from claiming for her own consuls, on more than one
occasion, the treatment accorded to the most favored
nation. The rules of common law which serve as the
foundation of English législation are so inflexible,
that not many years ago the archives of the general
consulateof France at London were seized and sold, to
pay the tax levied upon the rent of the office of the
consulate. And more recently, the fiscal agents of
Great Britain considered themselves authorized to
impose the income tax on the fees received by foreign
agents for notarial and other official acts which they
performed within their official résidences.
Of late years, the United States, in making consular
treaties with other nations, hâve provided for the ex-
emption of consuls “ from arrest or imprisonment in
civil cases, and from prelimianry arrest in penal cases,
except in the case of offenses which the local law
qualifies as crimes, and punishes as such, and from mili-
tary billetings, and from the performance of service
in the army, in the militia, and in the navy.”﻿l68	STATES IN A TIME OF PE ACE.
Consuls are also exempt from * national, State, or
municipal taxes imposed upon persons, either in the
nature of capitation tax, or in respect to their property,
unless such taxes become due on account of the pos-
session of real estate, or for interest on capital invested
in the State in which they résidé.”
These exemptions are extended to foreignersactingas
vice-consuls and consular agents, but are not en-
■joyed in any case when such officers are engaged in
trade, manufactures, or commerce.
However nations may differ in their régulations
regarding consuls, it is plain that consuls hâve a right to
certain privilèges and immunities, without which it
would be extremely difficult for them to perform
their functions. These immunities do not concern
their persons alone, but cover the locality of the consu-
lar office, its effects, papers, and official documents
committed to their keeping. They should hâve the
right to unfurl the flag of their country, and to
place its arms over the door of their résidences. The sev-
eral consuls residing in any one country should be
treated alike, unless treaty stipulations provide other-
wrise.
When a citizen of a State is appointed to the exer-
cise of consular functions in that State by a foreign
pow^er, his government is free to refuse him an exequa-
tury or to grant one with certain limitations ; but
having once received official récognition, the consul is
placed on the same footing with his fellow^s.
During the civil warinthe United States, a citizen,
having an appointment as a consul of a foreign govern-
ment in Baltimore, claimed exemption from military
service on the ground of his holding that office. He after-
wards offered to vote at an élection, but his vote was﻿POWERS AND DUTIES OF CONSULS. 169
challenged, on the ground that he had forfeited his right
to vote by pleading his tenure of a foreign office as
a reason for exemption from military duty:	The
case was never brought to a decision before the courts;
but, in general, it be may be said that a citizen of
the United States only impairs his rights as such by
taking an oath of allegiance to a foreign power. If he
acts in the service of a foreign government, without
taking such oath, his rights as a citizen of his
own country remain undisturbed. He cannot,
however, claim exemption from military duty, unless
such exemption is expressly provided for by treaty be-
tween the United States and the country whose com-
mission he holds.
If exemption were granted where no such treaty
existed, it would be nothing more than an act of
comity.
The powers and duties of a consul are not deter-
mined by the rules of international law, but by the
législation, including treaties, of the country to which
he belongs, and of that to which he is sent.
These powers and duties may be stated as follows:—
1.	To witness contracts for transportation or insur-
ance, and to receive the déclarations and reports of
ship captains; to examine ship’s papers; to authorize
loans on bottomry; to draw up proceedings for damages;
to take cognizance of the abandonment of vessels on
account of unseaworthiness, to settle in cases of ship-
wreck, and détermine the amount of salvage for ships
of their nation; to send shipwrecked sailors to their
homes; to assist and return indigent persons to their
own country.
2.	To make inventories of abandoned property left
by their fellow-citizens dying in the place of their resi-﻿S TA TES IN A TIME OF PEA CE.
170
dence; to administer the estate of such persons accord-
ing to régulations provided by treaty or by local law;
to aid by their counsel and good offices such of their
countrymen as may be involved in lawsuits, or whose
interests are liable to be made to suffer.
3.	To perform notarialacts for their countrymen; to
issue or endorse passports, bills of health, etc.; to re-
ceive dépositions; to legalizeacts emanating from terri-
torial authorities which are to be produced in the
country to which they belong.
4.	To furnish the governments of which they are the
agents with detailed information of the commercial,
political, and financial situation of the country of their
sojourn.
5 To publish abroad information respecting finan-
cial, commercial, and police matters in the country to
which they belong.
6. They may, in subordinate ports within the limit
of their consulates, delegate their powers in some
measure to vice-consuls or agents, who must be form-
ally recognized by competent authority before enter-
ing upon the exercise of their functions.
Consuls may in certain cases perform the marriage
ceremony, but they âre powerless to grant divorces or
séparations.
Consuls are not in general, and ought never to be,
allowed to engage in commérer.
SECTION VII—THE PRIVILEGE OF EX TERRI-
TORIAL! T Y.
By a sort of legal fiction, suggested by the elevated
position they occupy, the représentatives of a State in
foreign ports are looked upon as not having quitted
the territory of their nation, and on this account as﻿P RI VILE GE D PERSONS.
171
outside the jurisdiction of the country wherein they
are sojourning, remaining subject alone to the laws of
their own government.
This immunity, recognized by the law of nations
with ail the legal conséquences and prérogatives
which flow from it, constitutes what is termed exter-
ritoriality.
This privilège secures inviolability of person ; that is
to say, exemption from every sort of territorial juris-
diction, from legal action, or police authoritv implying
constraint or force. , This immunity is, however, not
absolute; it naturally loses its force, suffering the laws
of the country to assert their authority with regard to
ail acts performed by the privileged person as a private
individual, and not in his représentative character. In
this last case there hâve been différences of opinion;
but the foreign agent cannot escape the action of local
law when he assumes to exercise rights belonging only
to citizens, such, for example, as that of engaging in
commerce, the pursuit of an occupation, the acquisition
of real estate, etc.
Those who enjoy the privilège of exterritorality
are :—sovereigns, travelling or sojourning temporarily
within the territorial limits of another power; ambas-
sadors, ministers plenipotentiary, and ail purely diplo-
matie agents ; in alimited degree, consuls, vice-consuls,
and consular agents ; and the commanding officers of
miltary or naval forces, when they are admitted to foi-
eign territory.
The immunity enjoyed by the privileged person ex-
tends to his suite, and to his effects.
The honor and independence of nations are affected
by the treatment accorded to their sovereigns. Hence
the sovereign enjoys inhérent international preroga-﻿\?2
S TA TES IN A TIME OF PE ACE.
tives, whether he résidé on hisown territory, ortravels
abroad.
Within his own territory he is entitled:—i.To bead-
dressed by other nations under his proper and usual
title; 2. Tobe treated in ail communications addressed
to him, unless otherwise expressly provided in treaty
stipulations, on a footing of perfect equality with the
sovereigns of other nations.
Outside of his territory, the sovereign enjoys the
rights of hospitality in the country to which he goes :
thus, at the moment of Crossing the frontier, he has a
formai réception suitable to his rank, unless he chooses
to travel incognito.
In principle, a sovereign travelling beyond his own
territory, is exempt from criminal jurisdiction. This
rule, however, has its exceptions; as, for example, a
sovereign is not allowed to abuse foreign hospitality
by exciting revoit or disturbing the peace of the coun-
try of his sojourn.
A variety of circumstances may arise, under any one
of which a sovereign loses his right to daim the préro-
gatives attaching to his rank.
We hâve already mentioned the incognito, the as-
sumption of which may be regarded as an indication of
the wish of the sovereign to relieve himself of the ob-
ligations of his rank, and at the same time to forego
the enjoyment of its prérogatives and cérémonials.
A sovereign forfeits ail claim to the privilèges of ex-
territoriality when he esters a foreign country clandes-
tinely with the design of disturbing the public peace, or
of plotting against other powers.
A sovereign who abdicates or is deposed has no
longer any claim to international récognition. It is
usual, however, to accord personal honors to such;﻿DIP LO MA TIC AGENTS.
1/3
especially to deposed sovereigns, since these may regain
their thrones.
A sovereign loses ail his international immunities
by submitting himself to the jurisdiction of another
country, eitherby entering its military service or other-
wise.
The personal inviolability of a diplomatie agent be-
gins from the time of his official réception and the
récognition of his credentials. Practically, however, it
begins in almost ail nations from the moment he sets
foot upon the territory of the sovereign previously ap-
prised of his mission, and continues to the moment of
his leaving such territory.
The minister enjoys this privilège only upon the ter-
ritory of the sovereign to whom he is accredited : if,
however, in the discharge of his mission, he is obliged
to pass through other nations, he is entitled to receive
those personal attentions and acts of courtesy, the
omission of which might give occasion for offence to
the sovereign represented.
Inviolability is accorded not only to every regularly
accredited diplomatie agent, but to his assistants, his
wife, children, and suite ; and also to his résidence
and personal effects. But this privilège may not
be presumed upon by the minister. When he so
far forgets his dignity as to disturb the public peace,
or show disrespect to the sovereign, people, or func-
tionaries of the country of his sojourn, or to en-
gage in conspiracy, rendering himself odious or
suspected, he is rendered amenable to the penal laws ;
but his punishment must corne from the government
he represents. The sovereign at whose court the agent
résides can only take such measures as are necessary
to the public safety, suspend relations with the minis-﻿174
STATES IN A TIME OF PEAGE.
ter, send him to his own country, and in case of ré-
sistance, resort to force to remove him from the
country.
The principle of inviolability is naturally coupled
with that of absolute independence: that is to say, the
diplomatie agent should be amenable to no one except
his sovereign. He cannot accept any compensation,
much less solicit any employaient, nor any open or
secret émolument from the court at which he résides.
He is not allowed, unless by express authority from
his government, to accept any dignity, title, décoration,
or favor whatsoever from the sovereign to whom he is
accredited, nor from any foreign prince.
The principle on which the legal fiction of exterri-
toriality rests was recognized among the ancients.
Roman law accorded to the deputies of certain prov-
inces and certain cities the right known as “ jusdomum
revocandi.”
Grotius is one of the first modem writers who ad-
vanced the idea that an ambassador, representing his
sovereign, preserved his domicile in his own country.
Mention may be made of Bynkershoek, Fœlix,
Phillimore, Kluber, Heffter, and Wheaton, as writers
who bave sustained, at length, the principle we are
considering.
Real estate which a minister may own abroad, m
no way appertaining to his office, is always governed
by the law of the country in which it is situated.
Such property is subject to the ordinary processes of
legal proceedings : but in order to avoid the appear-
ance of diminishing, even in the least degree, that in-
dependence so necessary to diplomatie agents, actions
such as we hâve referred to are understood to go by
default.﻿IMPORT DUTIES AND TAXES.
175
Many governments allow diplomatie agents to im-
port, free of duty, ali goods designed for personal or
family use ; others limit the amount admitted free ;
others refund the duties paid.
Diplomatie agents are exempt from ail direct and
Personal taxation. They are, however, subject to
such indirect taxes as those of the octroi, bridge, and
highway tolls, postage, etc.
As to the land-tax, it cannot be remitted, even though
the property owned by the minister be occupied by
him as his résidence. If, however, the diplomatie
résidence be the property of his government, it is freed
from taxation.
Public ministers, considered as domiciled in their
own country, and exempt from local jurisdiction, ought
undoubtedly to possess the right of religious worship
within their résidences. This right, which is recog-
nized by ail nations, ought not, however, to be exer-
cised save in accordance with the municipal and police
régulations for the maintenance of public order.
The increasingly powerful influence of the princi-
ple of religious freedom, and of liberty of conscience,
has extended this privilège so far as to warrant the es-
tablishment of public chapels in connection with the
embassies, in which ail persons professing the same
faith, whether citizens or foreigners, are freely per-
mitted to celebrate religious observances. These ob-
servances are, however, required to be restricted to
the interiors of the chapels, no public processions being
allowed, unless by spécial authority, and the use of
bells being forbidden. Baptisms and marriages cele-
brated within these chapels are recognized as of equal
force with those taking place in parish churches.
In speaking of nationality, we hâve shown that war﻿i?6
S TA TES IN A TIME OF PE ACE.
vessels areregarded as formmg a part of the territory of
the nation whose flag they carry, and, as a conséquence,
even when they are lying in a foreign port, the officers,
crew, and ail persons on board are regarded as treading
the soil of their own country. Moreover, these vessels
being armed by the government of an independent
state, their commanders, officers and crew are actual
functionaries of the state, delegates or agents of a
foreign power, and hâve a right to enjoy the inde-
pendence and respect due to them as such.
From this point of view, the position of the com-
mander of a ship-of-war, may be said to correspond
to that of a diplomatie agent accredited to a foreign
court : his staff and crew may be regarded as the
official and unofficial personnel of his embassy, and his
vessel as the résidence of his légation.
From this assimilation, which general usage has, in
fact, recognized it follows (i) that ail naval vessels and
those on board are protected by the legal fiction of ex-
territoriality, with ail the immunities and prérogatives
growing out of it ; and (2) that no authority, other
than that of the government to which they belong, has
the right to interfère in matters occurring on board. This
last provision involves no difficulty so long as the ship is
at sea. But when the vessel cornes into waters under state
jurisdiction, such as ports, harbors, roadsteads, or sea
territory, it finds itself in the presence of two distinct
sovereign authorities, and the question arises whether
during its sojourn it is to be under the jurisdiction that
Controls the waters, or that of its own country.
The principle, generally admitted, which exempts
war vessels from the jurisdiction of the civil and crim-
inal courts of the countries where they are lying,
makes it a most serious offence to board such vessels﻿VESSELS IN EOREIGN PORTS.
177
by force, and justifies the rupture of relations between
the two States as a conséquence of such violence.
Every government is authorized to close its ports
against foreign war vessels, or to exercise surveillance
over them, if their presence is regarded as dangerous,
or even to require them to leave its shores.
The immunity accorded to ships-of-war by the prin-
ciple of exterritoriality does not cover acts in violation
of the law of nations : and if such are committed, the
vessels may at once be treated as alien enemies.
Vessels-of-war are bound to submit to ail the san-
itary régulations of the country whose borders they
enter.
The immunity growing out of exterritoriality extends
to the boats and other accessories or dependencies of
the ship-of-war. But it does not cover goods or ships
captured in violation of the neutrality of the country
into which prizes may be taken.
This doctrine was sustained by the United States
Suprême Court, in 1822, in the affair of the Spanish
vessel Santissima Trinidad.
When an indepéndent State permits a foreign army
to cross its territory or to sojourn therein, the privil-
èges of exterritoriality are extended to ail persons com-
posing such army or found within its ranks.
This privilège, however, can only be acquired when
permission to cross or rest upon foreign territory is re-
gularly asked and given : otherwise the entrance of an
armed force on foreign soil is regarded as an invasion,
and may be made a cause of war
When an army is driven across a frontier by a su-
perior force, the State thus entered remains in the full
exercise of its rights of jurisdiction, and would be
fully justified by the law of nations in arresting and﻿178 STATES IN A TIME O F PE ACE.
disarming the foreign troops, and in demanding îepar-
ation for the invasion.
SECTION VIH-INTERNATIONAL CONTRA CTS.
Conventions or treaties are written agreements en-
tered into by two or more nations, either to confirm
the obligations and rights growing out of natural law
or usage, or to make additions or restrictions,—in every
case to give a character absolutely obligatory.
Considered in their form, nature, and effect, treaties
may be divided into tetnporary and perpétuai, Personal
and general.
Temporary treaties hâve as their object a settlement
of affairs which may demand no more than a single
transaction : the term permaneîit implies a continuance
during a certain period of time, the extreme limit of
force in which is not necessarily determined in ad'
vance, and which may amount to perpetuity.
Perpétuai treaties are those which are such from the
nature of their object, and which, once recognized,
continue to exist independently of political changes
which may occur to either of the contracting parties,
and until they are formally revoked by mutual consent.
Such treaties may, no doubt, be suspended by a state
of war ; but recover their force as soon as peace en-
sues, without any formai renewal.
Personal treaties are those made between sovereigns,
as individuals, and expire at the death or dethrone-
ment of either. General treaties are those which re-
main in force without reference to the persons through
whose agency they were entered into : binding the en-
tire state, they preserve their force in spite of changes
which may occur in the form of government, and are
perpétuai, unless iimited in express terms.﻿VA RIO U S SORTS OF TREATIES.
179
The terms treaty and convention are used inter-
changeably ; the latter word, however, is more generally
employed to signify an engagement of minor import-
ance, such as a postal, télégraphie, or literary convention.
The term cartel is applied to those international
agreements which, having a less solemn character than
treaties, require no formai ratification. At présent
the term is most frequently used to describe agreements
made for the exchange of prisoners of war or deserters,
and for customs and postal service.
Considered as to the objects for which they are en-
tered into, treaties présent an almost infinité variety.
One of the most common is the treaty of guaranty,
by which one State agréés to aid another whenever its
independence or sovereignty are menaced by a third
power.
There are treaties of protection, by which a State
agréés to defend and protect a weaker State under any
circumstances and against ail enemies.
There are treaties of neutrality, in which several
nations join, with spécial stipulations, for the govern-
ment of each concerning some one nation whose neu-
trality is thus ensured. Such is the case with regard
to the kingdom of Belgium, the Swiss republic, and
the kingdom of Greece, their absolute neutrality being
guaranteed by treaties in which ail the great powers of
Europe hâve joined.
There are treaties of alliance, which may be offensive,
or défensive, or both. These are designed to secure
for each party to the alliance the aid of ail the others
in case of need. Treaties of amity differ from those of
alliance in that they go no further than to express the
mutual good-will of the parties. Treaties of amity,
however, usually préparé the way for more definite﻿!8o STATES IN A TIME OF PEAGE.
relations, and often contain secret articles providing
for alliance in certain cases.
An alliance between several States may become
doser and more intimate until they may form a fédéral
union or confédération. This is the case with Switzer-
land, the United States of America, the Argentine Con-
fédération, and the Dominion of Canada.
The marking out of the frontiers of States is often
made the object of spécial treaties.
A State in ceding territory to another State, or mak-
ing an exchange of territory, usually enters into a treaty
which confirms the transaction. Then, there are consular
treaties, which provide for the establishment and ré-
gulation of consulates ; treaties of navigation and
commerce, which protect the business intercourse of
nations; extradition treaties, which provide for the
delivering, from one nation to another, of absconding
criminals ; and conventions relating to literary and
artistic property, to patents, mails, telegraphs, and
railroads.
In the strict meaning of the terms, a treaty of peace
is one which is made between two or more belligerents
for the purpose of terminating a State of war, and re-
storing mutual relations of amity and harmony. It is
not to be confounded with a truce or armistice, which
is only the suspension of hostilities for a definite
period. A treaty of peace is usually a complex in-
strument, sustained by guarantees for the permanency
of friendly relations, although it does not always
re-establish things on the same footing as that exist-
ing before the war, but often provides for a cession or
exchange of territory, a rectification of frontiers, a
commercial concession, and even for subsidies and
pecuniary indemnities.﻿THE RIGHT TO MAKE TREATIES. i8l
The right to negotiate and conclude treaties and
conventions is one of the essential attributes of na-
tional sovereignty
Treaties and international conventions are, for States,
what contracts and private engagements are for indi-
viduals ; one of the conditions of their validity being
the personal capacity of the contractors.
Dépendent States of whatsoever sort, whether vassal,
half-sovereign, or deprived to some extent of their
sovereignty, cannot corne into treaty relations with
other states, except by permission of the States by
which they are controlled. Egypt and the Turkish
principalities afford illustrations of this.
The payment of a tribute is regarded as impairing,
to a certain degree, the sovereignty of a State ; but it
does not disturb the right to negotiate and make treaties.
In the cases of protected or confederated States, the
right to make treaties dépends on the terms of the
agreement which unités such States.
Thus, the members of the old German Confédération
could make treaties of alliance and commerce, while
the cantons of Switzerland gave up this right to the
fédéral diet. The States of the North American Union,
and those of the Argentine Confédération, are for-
bidden by their respective constitutions to make treaties
with foreign states without the consent of Congress.
The fundamental constitution of the State détermines
in whom résides the power to make treaties : for, this
right being an essential attribute of national sovereignty,
its exercise can only be governed by the public
internai law of each country.
The représentative or actual possessor of the sove-
reign power of the nation enjoys the right to make
treaties.﻿182
S TA TES IN A TIME OF PEA CE.
Thus, in monarchies the exercise of the right is in
the hands of the sovereign, under more or less of re-
striction ; in republics it is vested in the chief execu-
tive, assisted by his ministers, or by one of the legis-
lative bodies.
The president of the United States, for example, in
making treaties, must hâve the approval of the Senate
by a two-thirds majority. He may, however, in his
capacity as commander-in-chief of the army and navy,
conclude armistices with the enemy in time of war.
It is rare in our day that sovereigns treat directly
with each other, or sign with their own hands the inter-
national contracts which bind them. This is done
usually through their ministers, or by spécial diplomatie
delegates. Such delegates are understood to be vested
with full powers : hence the name plenipotentiary
which is given them.
It sometimes happens that a third State, out of good
will, interposes between two others to facilitate nego-
tiations. Such intervention may be an actùal média-
tion, or may go no farther than the manifestation,
informally, of a disposition to aid in the settlement of
a dispute.
A state may become a party to a treaty in the nego-
tiation of which it has had no share, by giving formai
adhesion to such treaty, either spontaneously or on the
invitation of one of the parties.
Another manner in which a State may join in a treaty
is by approbation. This is often solicited of a great
power by two lesser powers, who, having made a treaty,
desire the support of one of the more influential
nations.
A state may, by a direct act, accédé to the terms.of
a treaty made by two other powers. Such accession﻿RA TI FI CA TI O N.
183
places the country giving it on the same footing with
the principals which hâve concluded and signed the
treaty, securing the same rights to, and imposing the
same obligations upon, ail the States interested.
Ratification is the act which gives binding force to a
treaty, making its execution the duty of the suprême
power of the State.
The right of ratification belongs, in monarchies, to
the sovereign alone, or assisted by représentatives of
the people ; in republics, to the chief executive ofïïcer,
with the consent, direct or indirect, of one of the great
powers of the State.
A ratification, to be regular and binding, should be
full and complété, without réservation.
The United States has, however, set the example of
giving conditional ratifications, sometimes excluding
a particular stipulation, sometimes modifying the word-
ing or the sense of articles agreed to by their pleni-
potentiaries.
Instances of this practice may be found in treaties
between France and the United States in 1800, and
between England and the United States in 1824.
Authorities differ as to the right of a State to refuse
to ratify a treaty made by duly authorized plenipoten-
tiaries.
Grotius and Puffendorf hold that the sovereign is
bound by the signature of the treaty : Bynkershoek, on
the other hand, admits the right of refusai, but only
when thenegotiatorhas plainly transcended his instruc-
tions.
Under the old régime of absolute monarchical gov-
ernments, the refusai to ratify was not recognized, and
was very rarely attempted. In modem times, however,
it has become not infrequent, and the exercise of the﻿184	STATES T N A TIME OF PE ACE.
right seems in accord with the spirit of the âge, which
recognizes more and more the will of the many, and
less and less the one-man power.
The cases of refusai to ratify treaties are numerous
in later years , as, for instance, by the king of Holland
in 1841; by the United States, in 1868, in regard to
the cession of the island of St. Thomas from Den-
mark, and again on the occasion of the Johnson-
Clarendon treaty with England
Treaties are binding, unless soine other time is agreed
upon, at the time when they are signed by an author
ized agent,—and theii ratification by the sovereign is
rétroactive
When, from any cause, doubtsarise as to thevalidity
or the duration of a treaty, it is customary to give a
confirmation by a new déclaration As, for example,
when a natioii changes its form of government, it is
customary to proclaim the continuance in force of the
treaties concluded by the fallen government.
Various measures are resorted to for the guaranty of
treaties The religious solemnities made use of in
former times are no longer observed. The same may
be said of the practice of holding persons as hostages,
as also of the old forms of solemn oaths
Treaties in which guarantees are demanded, are now
most commonly confirmed by pledges, which consist
generally in territories or fortresses put into the hands
of the party requiring the guaranty. The most recent
example of this practice is found in the guarantees
given by France to Germany for the payment of the
indemnity demanded by the latter at the close of the
last war between the two nations, in 1871.
In treaties, as in ordinary civil contracts, it some*
times occurs, in spite of the great care taken in draw-﻿IN TE RP RE TA T 10 N O F TREA Tl ES.	\ 8 5
in g them up, that the text gives rise to uncertainties
as to its précisé meaning. Sometimes, also, the literal
application of certain clauses présents irreconcilable
contradictions, and leads to conclusions which neither
of the contracting parties intended.
Treaties being essentially contracts in good faith
(actus bonæ fidei) ought to be interpreted in the sense
of equity and strict right. When any ambiguity appears
in the wording, while the signification is plain and leads
to no unreasonable conséquences, the sense should not
be distorted by quibbles, or by more or less plausible
conjectures
The ordinary usus loquendi obtains, unless it in volves
an absurdity. When words of art are used, the spécial
meaning which they hâve in the given act is to déter-
mine their sense. If two meanings are admissible, that
is to be preferred which is least for the advantage of
the party for whose benefit the clause is inserted.
Treaties are to be taken in their entirety, and
clauses must not be considered separately, but as parts
of a whole. An isolated stipulation may appear ambigu-
ous and doubtful, which, when considered in its full con-
nection, becomes clear, précisé, and wholly reasonable.
Treaties may often be interpreted by referring to the
internai law of the interested State.
No State has a right to enter into treaty stipulations
contrary to natural law, or in violation of the law of
nations.
The date of treaties is often of importance in deter-
mining doubtful points. Of two treaties with the same
nation, the more recent prevails ; but, with different
nations, the one of more ancient date has the preced-
ence.
Difficulties sometimes arise that cannot be cleared﻿ï86	ST a TES IN a TIME OF TE A CE.
away by interprétation, and it becomes necessary to
negotiate and adopt explanatory articles which are con-
sidered as additional to those of the treaty, at the same
time becoming a part of it.
Treaty provisions may cease to be effective either
naturally or violently.
SECTION IX. — INTERNATIONAL REGULATIONS
CONCERNING SOCIAL AND ECONOMIC INTER-
ESTS.
We understand by literary and artistic property,
the right accorded to the author of a literary or scien-
tifîc work, a musical composition, a drawing, a paint-
ing, a statue, or any other work of art, to dispose
privately of his work, to publish it, to sell it, in a word,
to profit by the avails of its publication.
Literary property includes manuscripts, printed
books, and plays.
Artistic property includes musical compositions, and
those of the arts of design, such as painting, sculpture,
engraving, photography, and architecture.
The right of authors and artists over the products
of their intelligence has not always been fully recog-
nized. In the early days of printing, and even as late as
the last century, governments claimed the prérogative of
permitting or prohibiting the publication of this or that
book, and according the privilège to this or that printer,
sometimes to the injury of the authors themselves.
In our times, however, the récognition of literary
and artistic property is quite complété, although it is
ot the nature of a limited monopoly, varying accord-
ing to circumstances, at the expiration of which the
work becomes public property.﻿INTERNATIONAL COPYRIGHT. 187
It was in France that the protection of law was
first given, in 1793, to the species of property we are con-
sidering ; and in 1815 the Congress of Vienna adopted
suitable measures to secure literary and artistic prop-
erty against piracy, providing for authors and artists of
the countries comprising the German Confédération
the same protection as was or might be guaranteed by
law to authors and artists in each individual State.
Denmarkin 1828, England in 1838, Sweden in 1844,
and Austria in 1846, declared themselves ready to rec-
ognize and protect the intellectual property of the
citizens of those nations that would do the same in
return.
The conditional offer of these four countries had
produced no practical resuit when France, in 1852.
made solemn proclamation of the unqualified principle
of protection to intellectual property, and made it a
penal offence to pirate any work published abroad.
The adoption of so liberal a principle effected the
complété abolition of literary piracy, and greatly facil-
itated, if it did not even render superfluous, the adop-
tion of international treaties on the subject.
The action of France was unanimously approved by
the congress of authors held at Brussels in 1858;
which body adopted the following resolutions :—
1.	The principle of securing a right of property
in literary and artistic works to their authors, ought
to form a part of the législation of ail civilized na-
tions.
2.	This principle ought to be accorded from one
country to another, even in the absence of reciprocity.
3.	The récognition of the rights of foreign authors
ought to be absolute and complété.
4.	Foreign authors ought not to be compelled to go﻿188 STATES IN A TIME OF PE ACE.
ihrough spécial formalities in order fo be able to assert
their right of property. It ought to be sufficient for
them to hâve fulfilled ail the requirements of law in
the country where their publications first appeared.
5. It is désirable that ail nations should adopt uni-
form législation regarding literary and artistic prop-
erty.
Since this epoch the greater part of the States of
Europe hâve entered into conventions which protect
in large measure the literary and artistic property of
foreigners. The policy of the United States has been
uniform against international copyright, much to the
dissatisfaction of authors and their friends.
The introduction of railroads necessitated great
changes in the régulations concerning the passage of
travellers and goods across the frontiers of adjoining
nations. The old requirements were found utterly in-
consistent with the new arrangements; and the advan-
tages growing out of the passage of locomotives and
cars from one country to another, and the rapid trans-
fer of merchandise and people were so important that
the States cf Europe found it désirable to adapt their
treaties to the exigencies of railroad traffic.
France and Belgium were the first countries to in-
troduce, into international law, stipulations relative to
railroad communication. They were soon followed by
Bavaria, Prussia, Holland, and other States.
Arrangements for common stations, corresponding
tracks, sidings, signais, time to be taken for examin-
ation of baggage, change of locomotives, and the like,
were made the subject of conventions between the
States interested; details being left to be settledby the
companies.﻿POSTAL CONVENTIONS.
189
In certain cases the construction of bridges at fron-
tiers has been made the subject of international con-
ventions, as, for example, at Culoz, on the line between
Lyons and Geneva, and again between Kehl and
Strasburg.
One of the most important features in conventions
conceming railroad communication, relates to the ex-
amination of persons and goods at frontiers by customs
officers. Such régulations are naturally adopted as
may most facilitate transit while securing the execution
of the tariff laws of the respective countries. In com-
mon stations the officiais of the two cfountries often
render each other assistance.
Since the commencement of the présent century
many international postal conventions hâve been agreed
to, but it is within the last twenty-five years that chese
arrangements hâve become general and complété, the
task of the State governments having been greatly sim-
plified by the adoption of a uniform rate within each
State, in place of the complex and burdensome System
which previously fixed the charges according to
distance.
The postal conventions existing between the several
nations of the world differ but little,—ail having for
their object the régulation of the mode of transmission,
the nature and weight of the articles sent, the fixing
of charges, the division of the proceeds between the
contracting parties, and the adoption of the necessary
administrative measures for the performance of the
service.
The articles transmitted include letters, printed
matter of every description, and samples of goods
having no value as articles of trade.﻿S TA TES IN A TIME O F PE ACE.
I90
The tax, always uniform without regard to distance,
is usually graduated on a rising scale of weight.
In most cases the prepayment of postage of ordinary
letters, of whatever weight> is optional; registered
letters being always prepaid. It is the same with
printed matter, and samples of goods.
Official correspondence addressed to one country or
the other, which goes free in the country from which
it is sent, is exempt from ail charges.
Packages containing gold or silver money, jewelry,
or other objects subject to customs duty, are usually
excluded from the post
Besides the direct exchanges from one country to
another, closed mails are forwarded through interven-
ing States.
Packages failing of delivery are returned, through
bureaux established for this service, after a delay of
one month Responsibility for loss, in the case of let-
ters of value, rests upon the State at fault.
Letters and packages of value are carried on terms
specially arranged, the government, when it is so
agieed, reimbursmg the sender in case of loss.
For some years the post-office departments hâve un-
dertaken to remit money from one country to anotherby
means of postal orders The sums transmitted cannot
exceed certain limits on a single order.
The adoption of a uniform standard of money bv
civilized nations may be regarded as the inévitable
conséquence of the multiplicity of international re-
lations which hâve so happily grown out of the new
means of transportation and correspondence
The attainment of this désirable object is, however,
interfered with by serious obstacles, owing to the﻿CONFERENCE OF 1867.
I9I
great variety of local régulations maintained in the
several States in this regard.
Italy, Switzerland, and Belgium adopted, in 1865, the
French standard of gold and silver money, making
their coins identical in weight and fineness, so that
they pass freely in ail the four countries.
Greece adopted the same standard in 1868, making
the drachma the exact équivalent of the franc.
Encouraged by the success of its efforts with the ad-
joining States, the French Government thought to profit
by the International Exhibition of 1867 at Paris, by
inviting the several nations to unité in a conférence for
the purpose of promoting the adoption of a uniform
standard of money.
The invitation was favorably received, and delegates
were sent by Belgium, Italy, Switzerland, Austria,Baden,
Bavaria, Prussia, Würtemberg, Denmark, Sweden, Nor-
way, Holland, Great Britain, Russia, Spain, Portugal,
Greece, Turkey, the United States of America, and
France. The conférence held eight meetings between
the i7th of June and the 6th of July, 1867.
The French standard and divisions for money were
approved bythe conférence, the five-franc being taken
as the monetary unit. Gold nine-tenths fine was rec-
ommended as the international standard of value, and
it was suggested that the English pound sterling, the
American half-eagle ($5), and the Austrian ten-florin
piece might easily be made to equal an exact number
of francs.
Hardly had the conférence concluded its labors when
the Cabinet of Vienna signed a preliminary conven-
tion with the Court of the Tuileries, locking towards
the desired end.
In England and the United States the recommenda-﻿S TA TES IN A TIME O F PE ACE.
I92
tions of the conférence of 1867, hâve been most se-
riously discussed; and there is good reason to hope
that the day is not distant when a common standard
between Europe and America will be secured.
SECTION X.—AMICABLE ADJUST MENT OF DIF-
FERENCES BETWEEN STATES.
States are morally bound to exhaust ail honorable
means of reaching a peaceful settlement of their dif-
férences before resorting to the arbitrament of war.
This is not only a duty in the interests of humanity :
it is almost always the best way of securing the pre-
valence of reason and justice. In fact, the nation that
appeals to arms without having made ail due efforts at
conciliation, gives to the world the impression that its
cause is not just, or, if just, that it is made the pretext
for attaining other results.
In the existing state of society and of law, nations
having no common suprême tribunal before whom they
can be called to appear for the settlement of their
différences ; there remain only two methods of reaching
such settlement: amicable negotiations, and acts more
or less violent.
In the first category we place amicable arrangements,
written compromises, médiations, arbitrations, and con-
férences,—in the second, retortion, reprisai, séquestra-
tion, and embargo.
In the amicable arrangement, one of the parties, to
avoid more serious conflict, renounces its claim to that
which it had looked upon as its right.
An example of this kind of settlement is afforded
in the treaty of 1842, between the United States and
England, with regard to the pretensions urged by the﻿MEDIATION.
193
latter to the right of searching American ships sus-
pected of being engaged in the African slave-trade.
The compromise always implies a simultaneous and
reciprocal renunciation by both parties of points at
issue.
This may be better explained by referring to the war
between the United States and Mexico, which grew
out of the annexation by the former of the State of
Texas, which was de jure a province of the latter power.
Now, if Mexico, instead of appealing to arms, had im-
mediately ceded the contested province to the United
States, this wouîd hâve constituted an amicable ar-
rangement. But if Mexico had yielded a part of
Texas, and retained the rest under certain conditions,
this would hâve been a compromise.
When a friendly State lends its assistance to adjust
international différences between two or more States,
the transaction is termed médiation.
Since the mediator acts, not in the capacityof judge,
but in that of friendly ad viser, his rôle, although es-
sentially independent, is one of great delicacy.
The object of médiation is the conciliation of
divergent interests, and the suggestion of bases of
friendly agreement, while leaving the parties direct-
ly interested entirely free to adopt or reject the
proposed compromise. In this it differs essen-
tially from arbitration, which will be discussed pres-
ently.
Authorities differ in regard to the liberty of a State
to offer médiation to others. Hubner and Phillimore
hold it to be a duty, while Galiani maintains that
States, instead of seeking to mix themselves in the af-
fairs of other nations, should rather avoid it.
It must be admitted that under the cloak of medi-﻿S TA TES IN A TIME OF PEA CE.
I94
ation, nations hâve not infrequently interfered most
unwarrantably in the affairs of other States.
When two States, unable to settle their différences,
agréé to submit them to the decision of a third power,
or to a tribunal or commission specially provided for
and constituted by treaty, we hâve an instance of ar-
bitration.
In resorting to this mode of solving a difficulty, it is
usual, as in cases of arbitration between individuals, for
the parties to sign what is termed an instrument of
submission, which States clearly the question to be dis-
cussed, sets forth the facts and the law points involved,
prescribes the duties and powers of the arbitrators, and,
except in the event of material error or flagrant injus-
tice, obligates the acceptance, in goodfaith, of the deci-
sion which may be reached.
Princes and sovereign rulers and publicists, jurists, or
other private individuals, may be United to act as arbi-
trators.
The latter class can never delegate the discharge
of their duties to others, while the former, acting
in their administrative capacity, do nothing more
than attach their signatures to the sentence or deci-
sion, the duty of preparing which they hâve confided
to others.
When nations are unwilling to defer to the deci-
sion of an arbitration, they may hold friendly inter-
views with a view to the amicable settlement of their
disputes. Conférences and congresses hâve been fre-
quently resorted to for this purpose, and hâve, in our
day, whatever may be said against them in former times,
most happily settled a great number of important ques-
tions.
The congress is generally composed of sovereigns,﻿THE TREATY OF WASHINGTON.
195
or ministers of foreign affairs ; the conférence, of am-
bassadors or diplomatie agents, ad hoc.
The treaty of Washington, of May 8, 1871, between
the United States and Great Britain, présents an in-
teresting instance of an attempt, which in the sequel
has proved eminently successful, to adjust grave in-
ternational différences through arbitration. The treaty
provides for four cases of arbitration, to be disposed
of in three different ways:—
1.	For the settlement of the daims of the United
States against Great Britain, growing out of the dépré-
dations on American commerce during the late civil
war by British-built Confederate cruisers. These
daims were to be submitted to a tribunal of arbitra-
tion, the proceedings and the decision of which will
be found fully discussed in Chapter V. of this work.
2.	For the settlement of daims of citizens of
either country, against the Government of the other,
arising out of acts committed during the period of the
civil war, and not included in the first case. These
daims were to be submitted to three commissioners,
one to be named by the President of the United States,
one by her Britannic Majesty, and a third by the two
rulers conjointly. The commission so provided for
was duly constituted, convened at Washington in Sep-
tember, 1871, and in the course of the two following
years, it had under considération nineteen daims of
citizens* of the United States against Great Britain,
amounting in the aggregate to about one million of
dollars, and four hundred and seventy-eight daims of
subjects of her Britannic Majesty against the United
States, amounting to about ninety-six millions of dollars.
The daims against Great Britain were ail disallowed
by the commission. In one hundred and eighty-one﻿jç6 S TA TES fN A TIME OF PEA CE.
cases of daims against the United States, awards were
made in favor of the claimants, reaching an aggregate
of $1,929,819.
The resuit of the proceedings cf this commission
was, by the terms of the treaty, to be accepted by
by both governments “ as a full, perfect, and final set-
tlement of ail such daims” as were referred to the
commission under the treaty
3.	For the adjustment of a différence betvveen the
two governments as to the value of the privilège ac-
corded by treaty to citizens of the United States 1 of
taking, curing, and drying fish on certain coasts of the
British North American Colonies.” A commission,
similai in number, and in the manner of its appointment
to that authorized in the second case, was provided
for.
The commission, duly constituted, met at Halifax in
the summer of 1877, and decided that the sum of five
and a half millions of dollars should be paid by the
United States government for the privilège above re-
ferred to.
4.	For the settlement of a question of long stand-
ing between the two governments, relative to the
boundary line between the United States and the
British dominions on the Pacific coast. This question
was submitted to the “ arbitration and award of the
emperor of Germany,” and was by hirn decided favor-
ablè to the daims of the United States.
We hâve as the resuit of the great treaty of Wash-
ington the actual settlement of very serious différences
between two powerful nations—différences that might,
some of them, at least, hâve easily become causes of
war ; we hâve the payment, from one government to
the other, and vice versa, of millions of dollars, at the﻿RETORTfO N.
197
behest of a tribunal of five men, and of two commis-
sions of three men each ; we hâve in thtso judicial
bodies citizens of countries other than those of the
disputing nations, practically controlling the decisions ;
and we hâve the prompt acquiescence of the govern-
ments constituting the parties at issue, to the awards of
the several boards of arbitration, although, in one case
at least, that of the fishery award, there was great dis-
satisfaction on both sides with the conclusion reached.
The marked success of this effort of Great Bntain
and the United States to adjust their disputes in other
ways than by an appeal to arms cannot but exert an
influence favorable to the peaceful seulement of in-
ternational controversies hereafter.
When ali friendly efforts to settle a différence be-
tween two nations hâve proved unfruitful, the party
seeking rediess, and not yet prepared or disposed to
make an open déclaration of war, may resort to several
measures of a hostile character which, nevertheless, fall
short of actua! war. Among these, retortion is the least
violent.
Retortion is founded on the maxim : Quod quisque
in alterum statuent ut ipse eodem jure utatur. One na-
tion may treat another according to the rule or practice
which the other has set. Thus, when a State ceases
to regard established usage, and increases unreasonably
the charges on the importation 01* transit of the pro-
ducts of another state, so as to impede unjustly the
natural flow of commerce, the latter would be justified
in adoptmg similar measures, which would constitute
retortion. It was an instance of retortion when France,
in 1793. confiscated the property of Spanish subjects
in France, on account of similar action, by Spain, with﻿ig8 STATES IN A TIME OF PE ACE.
regard to the property of Frenchmen residing in that
country.
The seizure of the subject of controversy consti-
tutes, no doubt, an act of hostility, but is not necessarily
a déclaration of war.
In the midst of the discussions regarding the northwest
boundary between England and the United States, in
1859, the governmentat Washington effected the mili-
tary occupation of the island of San Juan, in Nootka
Sound. This proceeding, however little in conformity
*to Sound notions of right, or even of international
propriety, was not regarded by England as an act of
war, but as merely the securing of a pledge.
“Reprisais,” says Vattel, “are used between nation
and nation to do justice to themselves, when they can-
not otherwise obtain it. If a nation has taken posses-
sion of what belongs to another ; if it refuses to pay
a debt, to repair an in jury, to make a just satisfaction ;
the other may seize what belongs to it, and apply it to
its own advantage, till it has obtained what is due for
interest and damage, or may keep it as a pledge until
full satisfaction has been made.”
The law of nations sanctioned proceedings during
the last century in the matter of reprisais, which are
wholly inadmissable at the présent time. Thus, it was
for a long time the rule, that when an individual suf-
fered abroad in his rights or his property, he was jus-
tificd in avenging himself on those who had done the
wrong,—not only on the offender himself, but on any
other person, private or public, belonging to the same
nation. It is true, however, that, in order to regulate this
summary mode of securing justice, it was required that
letters of reprisai should be secured from the govern-
ment.﻿EMBARGO.
199
At the présent time it is necessary, before resorting
to reprisais, that the State which has sustained damage,
or suffered an offense or a déniai of justice, should
prove in due form the legitimacy of its cause and the
legal ground for its pretensions.
An embargo is a détention of vessels in a port,
whether they be national or foreign, for the pur-
pose of employing them and their crews in a naval
expédition, as was formerly practised, or for political
purposes, or by way of reprisai.
A civil embargo may be laid for the purpose of na-
tional welfare or safety, as for the protection of com-
mercial vessels against any action of belligerent powers
which might expose them to capture.
A hostile embargo is a kind of reprisai by one nation
upon vessels within its ports belonging to another na-
tion with which a différence exists, for the purpose of
forcing it to do justice. If this measure should be
followed by war, the vessels are regarded as captured; if
by peace, they are restored. Although such a measure
might bring an adversary to terms, and prevent war,
yet its resemblance to robbery, occurring as it does
in the midst of peace, and its violation of the rules
according to which the private property even of ene-
mies is treated, ought to make it disgraceful, and drive
it into disuse.﻿CIIAPTER IV.
RIGHTS, POWERS AND DUTIES OF STATES IN A
TIME OF WAR.
SECTION I.— THE OBJECT AND y US T OCCASIONS OF WAR.
AR is that abnormal State of hostility which
sometimes takes the place of the harmonious
relations natural between nations and between opposing
political parties, and which has for its object to secure
by force of arms what it could not obtain by friendly
and peaceful means.
“War,” says Vattel, “is défensive or offensive.
The taking up of arms to repel the armed attack of
an enemy is défensive war. Offensive w’ar is the taking
up of arms for the purpose of attacking a nation with
which the other has been at peace. The object of
défensive war is évident: that of offensive war is not
always so plain, but in general it is the securing of
certain rights or guarantees.”
To this définition should be added the remark of
Cussy:—“ Although it may be said in general that
offensive war is waged by the party who first takes up
arms, that should certainly be termed défensive which
is undertaken with the object of punishing an offense.”
The distinction between offensive and défensive
wars is, however, of little value ; for it is seldom that
either belligerent accepts the imputation of being the
aggressor.
200﻿DEFINITION OF WAR.
201
War is termed auxiliary when an ally of one of the
belligerents takes up the cause of its ally by furnishing
aid and comfort, either secretly or by open participa-
tion in hostilities,
The duties and rights pertaining to this species of
war dépend, naturally, on the treaty conditions which
bind the parties in alliance.
Public war is that which is undertaken with the
sanction of the suprême power of the State
“A contest,” says Wheaton, by force between in-
dependent sovereign States is called a public war. If
it is declared in form, or duly commenced, it entitles
both the belligerent parties to ail the 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 and 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 ”
Private wars, the legitimacy of which Grotius seeks
to justify in his De jure belli et paris, hâve disappeared
in the advance of civilization. They were waged
between numbers of individuals, or fi actions of a
nation, without the authority of the suprême power of
the State. Inévitable under the feudal organization
of Europe in the middle âges, they hâve become im-
pssible under modem Systems of government.
A mixed war, according to Grotius, is one which arises
between different members of che same society : for
it is public on the part of the established government,
and private on the part of those who resist its author-
ity. It often happens, however, that a conflict of this
sort does not pass the limits of an ordinary insurrec-﻿202
ST A TES IN A TIME 0F WAR.
tion or rébellion. Such were the military outbreaks in
Spain in 1866 and 1867, the repression cf which be-
longed exclusively to the established government.
The term complett is applied to those wars in which,
under ail circumstances contemplated by the general
laws of war, the entire people of one nation are au-
thorized to commit acts of hostility against the entire
people of anothèr nation, while those are called im>
perfect wars in which limits are set as to the places,
persons, and things which are to be involved. The
hostilities authorized by the United States against
France in 1798, give an example of the latter class of
wars.
When a nation ruled by another seeks te free itself
from foreign domination by force of arms, the contest
is termed a war for independence Such were the
wars of the Netherlands against Spain under Philip
IL; the United States against England between 1776
and 1783; Spain against France in 1808; India
against England in 1857; and the several wars of
Poland against Russia
Those wars which involve insurrections and révolu-
tions are often designated by the same term. Insur-
rections, having generally for their object the achieve-
ment of the independence of a certain portion of a
State, may be confounded, up to a certain point, with
wars for independence. To those alluded to in the
preceding paragraph, may be added the revoit of
Greece against Turkey in 1821, and those of Italy
against Austria in 1848, 1854, 1861, and 1866.
Wars undertaken for the purpose of acquiring new
territory, or to increase the material power of the at-
tacking nation, are termed wars of conquest.
Even in modem times, history affords many examples﻿WARS OF INTERVENTION.
203
of this kind of war, which was the most common sort
of warfare among the ancients. And Americans do
not need to look abroad for an instance, having a
plain case in the war of the United States against
Mexico.
There hâve been wars in which the whole people
may be said to hâve taken up arms. The wars of
Spain and Germany against the First Empire, from
1808 to 1814, as also, that of Holland against Philip
II., and the struggles of the colonies in the two
Americas against their mother-countries furnish ex-
amples.
Wars of intervention are generally considered as form-
ing a separate class. The full considération given in the
preceding chapter to the subject of armed intervention
makes it unnecessary to discuss the subject further
in this connection.
Civil wars are those which arise between fellow-citi-
zens within the limits of the same State. Civil wars,
properly so called, give to each party the status and
rights of a belligerent, not alone with regard to the op-
posing force, but also as to States that wish to remain
neutral. Care must be taken, however, not to con-
found wars of this sort with mere rebellions, the
fomentors of which are justly chargeable with having
violated the laws of the land, while their acts are
regarded and punished as crimes or offenses against
common law.
And in this matter it is often not easy to avoid a
certain confusion in determining international rights
and duties. History furnishes several instances where
an armed force existing within a given State is pursued
and treated as rebellious by the government of the
State, while neutral States, at their own risk and péril,﻿204
STATES IN A TIME 0 F WA F.
it is true, accord to the revolting party ail the rights
of an actual belligerent.
In such cases it is extremely difficult to lay down any
fixed rules of conduct, since very much dépends on
the circumstances of time and place, the extent and
duration of the insurrectionary movement, the impor-
tance of the interests at stake, the principles and ob-
jects proclaimed by the party first taking up arms, etc.
Ail writers agréé that there should be clear justifica-
tion for war, and that war should never be resorted to
without the most cogent reasons.
Vattel lays a heavy burden of responsibility on a
sovereign who suffers the horrors of war to visit his
people except under the pressure of stern neces-
sity.
In general terms, it may be said that a war, in order
to beregarded asjust, should be undertakento redress
an in jury already inflicted, or to prevent that which
there is good reason to fear will be attempted. This
statement of the case is, however, somewhat vague,
since the term injury has in our day a signification
very different from that attaching to it in the last cen-
tury, and during the middle âges.
Gentilis allows war in those cases where the employ-
ment of force is the only means by which right may
triumph over wrong, justice over injustice. He divides
wars into three classes : the just and necessary ; those
which may not be necessary, but are just and useful;
and those which are based on a sentiment of humanity
or national honor.
Grotius regards war as justifiable when it has for its
object the prévention or the réparation of injustice.
Later writers restrict the causes of war, throwing
out religious wars and wars for conquest.﻿PRE TE XTS O F WAR.
205
Heffter characterizes as idle ail abstract discussions
as to the legitimacy of wars waged in the interest of
religion, vengeance, or political equilibrium.
The most advanced view on this subject, and the
one which is gaining a strong hold among the nations,
is stated by Twiss, as follows :—“ A recourse to war
becomes lawful only when it becomes necessary, and
it becomes necessary only when amicable negotiation
has been tried and failed, or when it is morally certain
to fail, if it should be tried, or when it cannot be tried
without certain danger.”
It sometimes happens that governments, not liking
to avow the real motives which induce them to engage
in war, endeavor to justify themselves by setting
forth causes which are sometimes secondary and some-
times quite fictitious : these are termed pretexts.
As instances of this course, the war of 1869, between
Prussia and Austria, the wars of Spain with Peru and
Chili, and the last war between France and Prussia, may
be named.
War may be undertaken to punish an aggression, if
the injuries which the aggression inflicts are irréparable,
or if the offending State refuses to atone for the wrong
done.
A nation undoubtedly has the right to appeal to arms
to preserve what belongs to it, or to recover what is
due.
A state may engage in hostilities against another
State to protect itself against threatened danger.
A différence of religion cannot justify war. This
principle was the basis of the celebrated treaty of West-
phalia, in 1648, and has since become an intégral
feature of international law.
The enlargement of a neighboring state is not a suf-﻿200
S TA TES IN A TIME OF WAR.
ficient ground for war, at least not unless the State
in question manifests an intention of indefinite exten-
sion at the expense and to the préjudice of other
States, ’or the enlargement tends to disturb the “ balance
of power.”
Grotius, Vattel, Kent, and others, are of opinion
that under the last named circumstances, the neighbor-
ing nations ought to combine their forces to avert the
common danger.
SECTION II—DECLARATION OF WAR AND ITS
IMMEDIATE EFFECTS.
In early times a formai déclaration of war was
regarded as essential to legitimatize hostilities between
nations. Thus, the Romans, when about to engage in
armed strife with another people, sent the pater
Çatratus, chief of the fetiales, or college of heralds, to
demand of the offending State réparation of the in-
jury complained of.
If after three days no satisfaction was obtained, the
herald called the gods to witness, and declared that
Rome would resort to measures necessary to obtain
justice. The question was then submitted to the
senate, and if war was determined upon, a herald
was sent to the frontier to make déclaration ac-
cording to established usage.
The custom of making formai déclaration of war
has been observed by the modem European nations
under various forms.
In the twelfth century the déclaration was made
by letters of défiance bearing the seal of the sovereign,
and placed by a spécial messenger in the hands of
the sovereign against whom the war was declared.﻿DECLARA TION OF WAR.
207
The public peace (Landfriede) of the Emperor
Barbarossa, concluded at Nuremberg in 1187, pro-
vided that an injured party might take measures to
avenge himself by force of arms, after giving his
adversary three days notice. A similar provision was
included in the golden bull of Charles IV., issued
in 1356
The custom of declaring war. though heralds con-
tinued during the fourteenth, fifteenth, and sixteenth
centuries, the last instance of its observance oc-
curring in 1657, when Sweden sent an envoy to Copen-
hagen to déclaré war against Denmark.
For the next hundred years notice of intended war
was given through a printed déclaration: an instance
of which is furnished in that published by Charles II.,
of England, in 1671, against Holland.
Since the peace of Paris, of 1763, the States of
Europe hâve ceased to observe the custom of making
a formai déclaration of war. The sundering of
diplomatie relations, with the recall of accredited
agents, and a notification to neutral powers of an
intent to wage war, are the usual preliminaries of war
in our time.
It is usual to State, through diplomatie channels,
the conditions on the fulfillment of which alone pacifie
relations can be continued : conditions constituting
what is termed an ultimatum, or ultimum verbum.
An ultimatum ought always to include an express
demand for a prompt categorical answer ; and cannot
be communicated verbally, but should be in written
form, and presented to one sovereign by the diplomatie
agent of the other sovereign.
Since the seventeenth century, publicists hâve dis-
cussed at greatlength the question whether preliminarÿ﻿208
S TA TES IN A TIME OF WAR.
formalities should continue to be regarded as indispen-
sable. Grotius, Puffendorf, Huberus, Valin, and Vat-
tel incline to the affirmative, and are opposed by Byn-
kershoek and Heineccius.
The question was not practically settled until 1856,
when the Congress of Paris decided that war could
not be entered upon without due notice,—except,
of course, when one State finds its territory invaded by
the forces of another.
Before this action of the Congress of Paris, we find
many instances of the commencement of hostilities
without previous notice. Thus England, in 1778, find-
ing a casus belli in the alliance forrned between France
and the North American Colonies, seized and held as
prizes ail French vessels found in her ports.
In the war of 1812, between England and the
United States, hostilities began with the action of
Congress deciding on the adoption of war measures,
without waiting for the communication of the vote
to England and the neutral powers.
The right to carry on war belongs, among civilized
nations, to the chief executive power—exercised some-
times alone, and sometimes with the consent of other
branches of the government. This power may, how-
ever, be delegated to inferior authorities, such as
the governors of distant colonies or provinces, or to a
commercial corporation, such as the East-India Com-
pany.
In the ancient republics of Greece and Italy, and
among the tribes of Gerrnany, the power of calling the
nation to arms belonged to the whole people in its col-
lective capacity. In the middle âges each lord claimed
the right of taking up arms against his suzerain on
sufficient provocation; but when monarchies were consti-﻿ENEM Y* S PEE SON ANE PROPERTY.	209
tuted out of the débris of feudalism, the right of waging
war passed, naturally, to the sovereign.
Among modem nations, or those at least where
the people are sovereign, it is they who exercise the
right of war ; sometimes directly and collectively :
sometimes indirectly by their représentatives.
The head of the State is bound to proclaim, within
the limits of his own country, the date from which war
is to begin, and to give due notice to neutral nations,
so that the duties of neutrality may be observed and its
privilèges enjoyed.
To this end manifestoes are issued, which .con-
tain impliedly, if not expressly, a déclaration of war,
and a récital of the causes which justify an appeal
to force.
Sufficient time is to be afforded for citizens of the
enemy’s country to return home ; for the old practice
of holding such persons as prisoners of war has been long
abandoned.
The custom formerly prevailing of confiscating en-
emy’s property found in hostile territory at the break-
ing out of war, has also given way to a more generous
practice, and such property is now freed from the
operation of the laws of war. This doctrine received
a very important sanction in the action of the Suprême
Court of the United States in 1812.
. Russia, France, and England also accorded a very
emphatic récognition of the principle, in the Crimean
war.
This practice of respecting enemy’s property includes
debts, public and private ; such property, in former
times, was subject to confiscation.
An immédiate and most important conséquence of a
State of war is the sundering of ail commercial rela-﻿210
S TA TES IN A TIME 0F WAR.
tions between the contending parties, except as speci-
ally authorized.
This doctrine was rigorously sustained by the United
States during the révolution, in cases involving Ameri-
can citizens, and by Great Britain as well.
In the Crimean war, however, much leniency was
shown in this regard, the belligerent parties agreeinglo
allow trade to go on in neutral vessels at ports not
blockaded—excepting, of course, contraband of war—
and to allow communication by telegraph.
The effect of a State of war on treaties dépends,
naturally, on the character of these contracts. Thus,
ail engagements intended to operate in a State of
peace, such as treaties of amity, alliance, and others of
a political nature, are definitely terminated. Customs
régulations, postal arrangements, conventions for com-
merce and navigation, agreements regarding private
interests, are generally regarded as suspended until the
terminafion of hostilities.
Bynkershoek holds that war legally puts an end to
ail pacifie relations, but that the mutual necessities of
nations do not allow the strict observance of such a
rule, the maintenance of commercial relations being
a matter of convenience, and that the belligerent is
free to settle the question according to his interests or
his necessities.
The opinion of this writer is sustained in practice,
and it is generally admitted among civilized nations
that each State must détermine, on engaging in war,
whether it will authorize or prohibit trade between its
citizens and those of the hostile power.
As a conséquence of this principle, a belligerent gov-
ernment has the power to confiscate merchandise,
trade in which has been prohibited.﻿PERMITS AND LICENSES.
211
The power to prohibit trade extends to tHe subjects
of allies. Heffter déniés this, while Wheaton shows
conclusively that consistency requires the accordance
of the right.
The prohibition of trade once established, no excep-
tions, save such as are dictated by considérations of
humanity, can be allowed. Other déviations, as in
cases where goods were purchased before the war, or
when a voyage has been retarded by uncontrollable
circumstances, only confirm the rule by reason of
their exceptional character,—the transaction being re-
garded as legal, since it was undertaken before the
parties had been placed in the position of enemies.
In modem wars, the practice has generally prevailed
of allowing a certain time for citizens of the hostile
State to settle their affairs and retire with their
property.
In nearly ail her maritime wars, England has granted
permits and licenses allowing her subjects to carry on
commerce with the enemy.
This practice has been followed under varying forms
by ail civilized nations that hâve engaged in war during
the présent century, and will be discussed at some
length when the rights and duties of neutrals are taken
up.
Licenses never confer the right to disregard regu-
larly established blockades, nor permit traffic in
articles that are contraband of war.
SECTION III—ALLIANCES.
Two or more nations often associate themselves to-
gether for the pursuit of a common political end,
forming what is termed an alliance.﻿212
S TA TES IN A TIME OF WAE.
The object of such a combination may be of a pa-
cifie character ; but, in general, alliances are made in
view of war, either prospective, or actually begun.
Alliances may be offensive, défensive, or may combine
the two qualifies.
In offensive alliances, concluded before the break -
ing out of war, the contracting parties engage, in
general, to lend each other assistance in hostile oper-
ations either against some particular nation, or against
any antagonist whatsoever.
Défensive alliances are those in which each ally
promises his material support against any unjust ag-
gression upon the rights of the other.
We say unjust aggression, for in cases where a nation
has through évident fault on its own part stirred up
hostilities with a neighbor, and is plainly in the
wrong, it has no right to call on its ally for help.
A third class unités the conditions of the two pre-
ceding under the name of offensive and défensive
alliances.
Such alliances are usually permanent in their char-
acter : they exist, as a matter of course, between the
sovereign members of a confédération or union, such as
the late North German Confédération.
Such alliances are also entered into by States united
in no other respect.
Thus, the Cis-alpine Republic made a treaty with
the French Republic, in 1798, in which the fomer
agreed to take part in ail the wars in which the latter
might be involved, and to bring its whole force into
the field on the demand of the Directory.
Alliances of this class are sometimes entered into
with respect to a particular war, ceasing with its ter-
mination. The alliance which united the rest of﻿BINDING FORCE OF ALLIANCES.
213
Europe against France, in 1813, 1814, and 1815, that of
Austria, England,France, and Sardinia, in 1854, and that
of France and Italy, in 1859, are illustrations of this
sort of alliances.
It may be claimed, in general, that an alliance, of
whatever description, constitutes an obligation of
strict law, and whoever enters into such a contract
cannot avoid its fulfillment, except when prevented by
superior force. On the other hand, good faith would
seem to allow, that when the alliance has become
onerous, i. e.y no longer conducive to the interests of
the State entering into it, it might be terminated be-
fore the time at which the casus fœderis occurs.
This is the rather subtile doctrine set forth by
Vattel, and which Austria adoptedwhen she united her
forces with those of Russia, Prussia, and England,
against the first Napoléon.
Défensive alliances often extend only so far as to
guarantee the territorial possessions of the contractants.
Evidently in such cases the casus fœderis occurs only
when the territory of one of the parties has fallen
under the power of an enemy, or is in imminent dan-
ger of doing so.
Many instances of treaties of guaranty are found in
history.
The most notable, in modem times, are those which
insured the integrity of the Ottoman Empire in 1854
and 1856 ; and those concluded between Prussia and
Italy in 1866, and between Prussia and the States of
South Germany in the same year.
The form of treaties of alliance varies according to
the objects had in view, and the causes which may
hâve led to their conclusion. The stipulations most
commonly included are the following :—﻿214
STATES IN A TIME OF WA R.
Hostilities can only commence at a time to be
agreed on ;
The contingents of subsidy, troops, and material must
be furnished promptly, and continued until com-
pleted ;
The armies of the allies must lend mutual aid to
preserve the territories of each intact, and to fight the
common enemy ;
The prisoners, spoil, and trophies are to be divided
proportion ally, according to the troops engaged ;
Each party is forbidden to conclude a separate
peace, and agréés to make only such terms as shall ?e-
cure the rights of both parties, in view of the sacrifices
made and the injury sustained by each.
A spécial clause usually States the duration of tht
alliance, and sometimes conditions are inserted for its
early termination by either party.
SECTION IV.— THE ENEMY; LAWFUL AND UN-
LA WF UL MEASURES O F ATTACK AND DE-
FENSE.
The rights which a belligerent enjoys as against his
enemy, as well as the acts of hostility and aggression
to which he may resort, dépend, naturally, on the ob-
ject sought to be attained by war. Bynkershoek and
Wolf hold tha*’ so long as the object is not attained,
belligerents may use, without limitation, ail possible
means to injure the enemy and bring him to terms. This
sweeping claim, which would justify the most revolt-
ing iniquities, is in fiat opposition to the more hu-
mane and liberal principle set forth by Grotius
towards the end of the seventeenth century, and sus-
tained by Vattel and nearly ail the modem publicists.﻿COMP ULSOR K— VOL UN TA R Y—PASSIVE, 215
In this matter, however, practice is very far from
being in accord with theory. Owing to the imperfec-
tion of human nature, that is often done which Sound
morality would condemn, and that which even the ne-
cessities of personal defense would not justify.
We must, then, consider separately the various posi-
tions in which a State of war may place the person of
the enemy with respect to the belligerent.
The enemy may be divided into the compulsory>
the voluntary, and the passive, Under the fîrst head
are those who belong to the regular land and naval
forces, and who are obliged, imperatively, by the law
of the land, to bear arms in the defense of the terri-
tory, honor, or interests of their country ; these are
completely subject to the laws of war.
Voluntary enemies are those not in the regular mili-
tary service, who hâve formed themselves of their own
free will into irregular corps, or bear arms singly in
support of their government. The prevalence of hu-
mane ideas in the progress of civilization accords to
such belligerents, when taken prisoners, the same rights
as to regular troops.
Passive enemies are those who, not without interest
as to the resuit of the contest, take no active part
therein.
Besides the civil officers of the government, mer-
chants, men of letters, etc., we range in this class
chaplains, surgeons, and ail who are exclusively em-
ployed in hospital service ; also those who accom-
pany an army in unmilitary capacities, such as ser-
vants, sutlers, and administrative agents. It is in-
cumbent upon such persons to abstain rigidly from
acts of aggression.
The increasingly intimate relations of intercourse﻿2IÔ
STA 2ES IN A TIME OF WAR,
which exist between nations, make it impossible to lay
down any settled principle as to the précisé relations
brought about by a State of war. We can only note
the practice that obtains in different epochs.
The dangerous doctrine maintained by Vattel, which
includes ail the subjects of a State, even women and
children, as the enemies of the nation with whom war
is joined, has long since been set aside. That of Pin-
heiro-Ferreira, that war never takes place between
nations, but only between governments, has not yet
found general acceptance.
Between these extremes the practice of modem na-
tions has varied according to the interests of those who
hâve resorted to war.
Thus, in 1854, in the Crimean war, intercourse under
a neutral flag was authorized in ail the Russian ports
which were not blockaded. And in the expédition
against China, France and Great Britain declared that
their subjects were free to trade in the interior of the
Celestial Empire, ample security being accorded, at the
same time, to the Chinese in their commerce with other
nations.
It is admitted that no State has the right to take the
lives of subjects of a hostile State who make no armed
résistance or attack.
Good faith must be observed between belligerents :
even Bynkershoek, cited above as allowing the great-
est latitude in war measures, condemns perfidy.
Notwithstanding the growing tendency to treat the
person of the enemy with considération, it is allow-
able for governments and military authorities to con-
trol their conduct by the rule of retaliation, thus per-
mitting reprisais and retortion when circumstances de-
mand a resort to such measures.﻿STANDING ARMIES.
217
In ancient times the duty of rendering military
service was inhérent in the right of citizenship :
every able-bodied man entered de piano the ranks
of the army from the moment his country was pro-
claimed to be in danger or declared war against its
neighbors.
In the middle âges war was often a lucrative trade ;
armies, losing their national character, were filled up
without the aid of recruiting officers, by mercenaries,
collected at haphazard, who sold their services to the
highest bidder.
The many evils incident to this practice led to the
establishment of standing armies during the fifteenth
and sixteenth centuries, Spain setting the example
to the other nations of Europe. The perfection of
permanent military forces existing in our day was
not reached, however, until the reigns of Frederick the
Great, and the first French emperor.
However impérative the présent necessity may be
for the maintenance of standing armies by the nations
of Europe, the enormity of the burden they impose
upon society cannot be lost sight of, and it is the hope
of ail who wish well to mankind that a System less
onerous may corne into being as the resuit of a prevail-
ing sense of international justice.
Women, children and the aged are everywhere
exempt from military service. The clergy, also, are
looked upon as entitled to exemption, in view of the
sacred nature of their calling. Teachers are in cer-
tain countries excused from military duties.
The right to make conscriptions and levies and to ac-
cept volunteers belongs naturally to the power that is
authorized to déclaré war. This right is classed as
one of the prérogatives of the sovereign, but the ex-﻿218
S TA TES IN A TIME OF WAR.
tent of its exercise is properly regulated by the con-
stitution of each State.
In England, for instance, the king has the right
to déclaré war; but he cannot levy troops, or put the
army into a condition of active service, without the
consent of Parliament. In the United States, Congress
Controls in ail these matters.
Under the old idea, that in a State of war every
member of the body politic was engaged, it is easy to
justify the operations of guerrillas and independent
military organizations. But in our day, when war is
looked upon more as a matter between governments, it
is essential that ail military operations should hâve the
authority of the suprême power of the State.
This rule, however, is not enforced with absolute
rigor, and numerous instances are on record where the
services of volunteer military organizations hâve been
made use of, with more or less of formality attending
their authorization. A notable instance of such
practice is afforded in the operations of troops under
Garibaldi, in Italy, during the years 1860 and 1867.
After the peace of 1814, Prussia effected a mili-
tary organization which was designed to provide for a
very considérable addition to the standing army in
cases of need.
The landwehr included ail men under forty years of
âge, who had served three years in the regular army
and two years in the reserve. It was divided into
two parts ; the first comprising men from twenty-five
to thirty-two years of âge, who might be called on to
serve at home or abroad; the second, made up of men
from thirty-two to thirty-nine years of âge, to be em-
ployed only to guard fortified places, and to sustain,
when needed, the first division.﻿WEAPONS OF WAR.
219
Besides the standing army and the landwehr, still
another military resource exists in the landsturm.
which includes ail men between forty and fifty years
of âge.
In many instances the levy en masse has been re-
sorted to as a measure of defense This was done in
France, in 1870, by the government then acting at
Tours. This act called into the field ail able-bodied
men between the âges of twenty-one and forty years.
The prevailing sentiment of the âge condemnsthe
employaient of ail instruments or weapons which cause
a useless shedding of blood. The use of deadly weapons
is allowable only against such as are armed for de-
fense or for attack; and it is regarded as a plain vio-
lation of right whenever weapons of war are turned
against non-combatants or unfortified cities.
When cannon were first used, they were only em-
ployed to batter fortifications, and not in the open
field; for it was considered an act of barbarity when a
hero was laid low at a safe distance by the bail of a pol-
troon. This idea has, however, given place to that which
welcomes a weapon of increased power of destruction,
as calculated to render wars more brief and déci-
sive.
The bombardments of forts and other fortified
places is regarded as a measure of extreme rigor,
justifiable only in cases when it is impossible to secure
d surrender by other means.
But under no circumstances is it allowable to boni*
bard unfortified and undefended towns.
Bello admits that, in the bombardment of a city, it is
difficult to preserve private buildings from the injuries
intended to be inflicted only on public édifices. “ For﻿220
S TA TES IN A TIME OF WAR.
this reason,” says he, “ recourse should not be had to
such extreme measures, until the réduction of a place,
the possession of which will hâve a marked effect on
the issue of the war, is plainly otherwise impossible.”
Wheaton says that usage, which has acquired the
force of law, excepts from such operations of war
churches, public édifices exclusively devoted to the
civil service, monuments of art, muséums and scientific
establishments.
The last war between France and Germany présents
an unprecedented feature in military operations, the
successful employment of aeronauts.
It is true that balloons had been used in isolated
cases for the observance of military movements, as at
the battle of Fleurus in 1794, and for the dropping of
fire-balls into the ranks of the enemy, as was done by
the Russians in 1814. Their use, however, was of so
little practical advantage, that they may be said to
hâve been first employed satisfactorily during the siégé
of Paris in 1870. When the investment of the city by
the Germans became so complété as to eut off ail means
of exit, resort was had to balloons to transmit intelli-
gence and receive news to and from the outside world.
During five months of the siégé, sixty-four balloons
were employed, with great success, although several
fell into the hands of the enemy, brought down by
guns specially prepared to arrest their flight.
Modem usage does not permit the use of barbar-
ous weapons ; such, for instance, as bar-shot, poisoned
or explosive bullets, balls so shaped as to make death
the inévitable conséquence of a wound.
It is hardly necessary to add that the poisoning of
wells or of provisions is looked upon as an odious
crime, ne ver to be forgiven in military operations.﻿A SSA S SI N A T ION.
221
The sentiment of the âge in chis regard was fitly ex-
pressed in a compact between ail the European powers,
made at St. Petersburg in 1868,absolutely forbidding the
use of explosive balls. This was a natural corollary
of the convention made at Geneva, four years earlier,
with regard to ambulances and the wounded on the
field of battle.
In the times antedating the establishment of Chris-
tianity, the assassination of a hostile sovereign or mil-
itary commander was often resorted to as an avowed
means of terminating a war. It is a matter of sur-
prise that certain modem writers refuse to condemn
the practice, and even go so far as to excuse it.
Vattel, for instance, makes a distinction between an
assassination ordered by a government or by the com-
manding general of an army, and murder committed
by an unauthorized individual. He does noc hesitate to
approve the former when it has the effect to put an
end to a just war, and adduces in support of his opin-
ion the case of Mutius Scævola, and that of Pépin,
who, having passed the Rhine with a single guard,
killed his enemy in his chamber. We do not need to
dwell on the dangers attaching to this doctrine of
Vattel.
Surprises, ruses, and stratagems are regarded as le-
gitimate measures of warfare.
The most distinguished military leaders hâve not
hesitated to resort to che circulation of false reports in
order to deceive the enemy and lead to his over-
throw.
In judging of such intrigues, a distinction should be
made between such as are deliberately entered upon,﻿222
S TA TES IN A TIME OF WAR.
and those that are provoked by the course pursued by
the enemy. The former are justly regarded as dis-
honorable, while the latter are allowed.
Spies are persons who, at their own risk and péril,
for the sake of a reward, make their way into the
ranks of the enemy to acquaint themselves with his
plans and movements, resources, numbers, etc., etc.
The laws of war authorize the infliction of the
death penalty upon spies caught in the act.
It is hardly necessary to add that the character of a
spy does not attach to one who crosses the enemy’s lines
in his own uniform, and proceeds with no attempt at
disguise.
The well-known cases of Captain Haie and Major
André in the war of the révolution of the American
colonies against England, may be cited as conclusive
precedents establishing the principle that not even
officers of high rank can hope to escape the death
penalty, when taken as spies.
SECTION V.—RIGHTS AND DUTIES O F WAR AS
REGARDING THE FER SON OF THE ENEMY.
History reveals how little uniformity has character-
ized the treatment of prisoners by their captors, and
to how great an extent the influence of international
law has modified practice in this regard.
The massacre of captives, practised in barbarous
âges, was no longer continued in the middle âges.
But though the lives of prisoners were spared, their
liberty was sacrificed. Soon, however, their réduction
to slavery seemed too severe treatment,the Church lifting
up its voice in condemnation of the practice, and after a
time the custom of ransoming prisoners came into
vogue.﻿PRISONERS OF WA R.
223
Later, the idea began to prevail that those who fell
into the hands of the enemy in the fortunes of war,
were entitled to spécial protection. Présent practice
goes further than to assure the safety and good treat-
ment of prisoners of war ; it provides for their ex-
change or discharge, and often for the payment of
certain expenses, such as for transportation and sub-
sistence.
The law of nations does not exempt the person of
the sovereign from the périls and violence of war. If a
sovereign is taken prisoner, he is either released on
parole, or if detained as a prisoner, is treated with dis-
tinguished considération.
Thus, when Napoléon III. gave himself up at the sur-
render of Sedan, he was held as a prisoner of war in
the château of Wilhelmshohe, in Hesse, surrounded
with every comfort, and treated with ail the respect
which his distinguished rank demanded.
Deserters captured in the ranks of the enemy,
having committed the crime of bearing arms against
their country, hâve no claim to be treated as prisoners
of war. Universal usage excludes them from exchange,
and subjects them to whatever penalties the laws of
their country attach to their crime.
The right to refuse quarter is a point that the pub-
licist as a moralist need not discuss. To take the life
of a vanquished enemy is a crime which no law can
tolerate, and the odiousness of which nothin^ can pal-
liate. For the commission of this crime, the names of
Radetsky in Lombardy, Haynau in Hungary, and
Mouravief in Poland, must be handed down wTith
shame to posterity.
Riquelme, Vattel, and Bello hold to the opinion that
the exigencies of war may, in extreme cases, justify the﻿224
S TA TES IN A TIME OF WAR.
killing of prisoners of war. It cannot be ad-
mitted that war abolishes Christian sentiment, or
silences the voice of conscience. The enemy dis-
armed, vanquished, captive, must be held sacred as
a man. To claim the right to take his life is to
turn back the world and to revive practices worthy
of the savage tribes of Central Africa or of the
islands of the Pacific. It is painful to remember
that excesses of the sort we are considering hâve been
comniitted so recently as in the war of La Vendée
under the French Republic, the bloody strife of the
Carlists after the death of Ferdinand VII. of Spain, the
internai wars of Mexico, and even in the recent civil
contest in the United States.
The belligerent who holds prisoners is responsible
for their proper support. Humanity and universal
usage demand this as strictly as that the lives of pris-
oners should be spared. Any State endeavoring to
évadé this duty would be justly placed under a ban
by her sister nations. The laws and usages of each
State détermine the nature of food to be furnished to
prisoners. Heffter is of the opinion that a demand for
reimbursement of the expense of their support from the
nation to which they belong is allowabie.
The most advanced and humane practice in this re-
gard is that which France and Germany followed in
their recept war,—which was to allow prisoners to en-
gage in labor, as far as practicable, and to hâve free
command of what they might be able to earn.
Captured officers are sometimes released on their
solemn promise to take no further part in the war, or
until they are duly exchanged. This arrangement
dépends, of course, on the observance of good faith ;
and it is to be regretted that a measure so humane﻿EXCHANGE OF PRISONERS.
225
has not infrequently had to be abandoned, owing to
the bad faith of those to whom its advantages hâve
been extended.
No advance in the practices of war is more to be re-
joiced at than the adoption of a general System for the
exchange of prisoners. This measure was first re-
sorted to towards the close of the seventeenth
century.
The rule now generally observed is to exchange man
for man and rank for rank, or by assimilation of
ranks when they do not exactly correspond.
Exchanges carried on during the continuance of
hostilities are usually regulated by spécial conventions
called cartels. Prisoners held until the close of the
war receive their liberty through provisions of the
treaty of peace.
The ancient custom of holding persons of high
rank as hostages for the fulfilment of this or that con-
dition is no longer maintained, as heretofore.
In several instances, however, during the late
Franco-Germaft war, persons were held as hostages.
During the same war, a novel expédient was adop-
ted, which we are constrained to condemn most un-
qualifiedly. The German military authorities, finding
the working of the railroads greatly interfered with in
the portions of French territory controlled by them,
determined to place on locomotives which were to
convey trains, prominent French citizens, as aguaranty
for the safety of the train. Any accident arising from
obstructions on the track would of course involve the
death of those distinguished citizens. In one instance,
the president of the court at Nancy, having refused
to mount a locomotive, was compelled to do so by a
guard of four soldiers.﻿226
STATES IN A TIME OF WAR.
At the suggestion of Switzerland, an international
conférence assembled at Geneva in 1864, to regulate
the treatment of wounded soldiers on the field of bat-
tle, and to secure neutrality to hospitals and ambu-
lances. A convention was adopted by Austria, Baden,
Belgium, Denma'rk, Spain, France, Hesse, Italy, Hol-
land, Prussia, Switzerland and Wurtemberg, the pro-
visions of which were extended, four years later, to
naval hostilities.
This convention secured the most humane provisions
in the premises, and it is greatly to be regretted that
in the Franco-German war, affording the first oppor-
tunity to observe the behests of the convention, there
should hâve been so many violations of its spirit and
letter.
It has since been proposed that a tribunal should
be created, whenever war occurs, to hâve power to
punish ail infractions of the Geneva convention.
In ancient times, an invader, penetrating the enemy’s
country, was in the habit of butchering ail the males
of the proper âge to bear arms.
In modem times, conquerors are obliged to leave the
inhabitants of conquered territory free to pursue their
ordinary avocations. Fromthe moment of submission
the person of the vanquished becomes sacred.
Occupation makes no change in the operation of
municipal, civil, or criminal law, nor can a simple occu-
pant administer justice in his own name. This
change takes place only when occupation is succeeded
by definite and final conquest. Crimes may, however,
be punished, by courts-martial. The right to adminis-
ter justice in his own naifie was claimed by the military
occupant of the provinces of Alsace and Lorraine, in
the late Franco-German war, and this claim was ear-﻿EN EM Y'S PROPERTY.
227
nestly combated by the civil authorities of the city of
Nancy.
The effect of military occupation on slavery dépends
on circumstances. If slaves are regarded as personal
property, and not as human beings, they are as invio-
late as any other possessions. If, however, they are
simply attached to the soil, as serfs, for example, they
may be subjected to the laws of war like other indi-
viduals.
During the civil war in the United States, the Fédéral
générais refused the extradition of slaves that had
sought refuge within theirlines,—basingthis refusai on
the ground that slaves were contraband of war.
In his proclamation of January 1, 1863, setting free ail
the slaves in the South, President Lincoln struck an
effective blow at the strength of the rébellion, and per-
formed at the same time a grand act of justice.
The discussion of the question whether this act was
legal or not has been rendered unnecessary by the
adoption in due form of an amendment to the Constitu-
tion of the United States, definitely abolishing slavery.
The rights and prérogatives attaching to military
occupation hâve force only so long as the occupation
is actual. At its termination, by withdrawal or by
overthrow, society reverts in ail respects to its former
condition.
SECTION VI.—RIGHTS AND DUTIES OF WAR
CONCERNING ENEMY'S PROPERTY.
In settling the rules concerning enemy’s property, we
must distinguish between movable and real property ;
between public and private possessions,whetHer on land
or on the sea.﻿228
S TA TES IN A TIME OF WAR.
Following the method adopted by most writers, we
will first discuss the rights of belligerents over enemy’s
property on terra firma.
In ancient times the right to dispose of the prop-
erty, as well as the person, of an enemy was re-
garded as absolute. This rule has, in modem times,
been softened in very many ways.
Until recently it was required that personal property
be in the actual possession of a belligerent upwards of
twenty-four hours in order to complété his title thereto.
Roman law required that it should be deposited in a
place of safety. Later practice gives a title from
the moment of capture, the twenty-four-hour rule
applying only to marine prizes.
Universal usage exempts public archives from cap-
ture and confiscation, the captor being only allowed
to make such use of them as is essential to the good
government of the occupied territory.
Writers are divided in opinion as to the capture of
works of art, public libraries, muséums, etc., some
holding them exempt from capture, and others regard-
ing them as lawful trophies. Ail agréé in forbidding
their destruction. The spirit of modem warfare would
require that such property should be absolutely ex-
empt from capture.
Belligerents are bound to respect ail public édifices
and monuments; and the fact that this rule has been
disregarded in very recent times ought not to weaken
its force.
The most advanced principles of humane warfare
forbid the dévastation of territory and the destruction
of towns and villages.
During the war of 1812, between Great Britain and
the United States, the government of the former﻿PILLAGE.
22 9
country undertook measures looking towards the
dévastation of territory, and actually burned the capi-
tol, the présidents mansion, and other public build-
ings in Washington. These acts were severely con-
demned, and their injustice was admitted by England
herself.
The exemption of private property from capture
or confiscation, which is accorded under the mod-
em rules of war, must be regarded as an advance
of great importance. This privilège can not be
claimed by the enemy who violâtes the requirements
of military law, nor does it extend to articles found
on the field of battle. The forced contributions
sometimes demanded by invading armies must also
be recognized as forming exceptions to the principle
of exemption.
The practice of sacking a captured town, quite
the rule in ancient warfare, is of rare occurrence in
modem times. The recent instances of this barbar-
ous practice, few though they be, deserve to be noted,
that they may be held up to the reprehension of the
world.
In the war for Spanish independence, in the bloody
strifes between Russia and Poland, and in the recent
civil war in America, we meet with occasions where the
rule of avoiding pillage was violated. The sack and
destruction of the palace of the Emperor of China by
the European forces présents the spectacle of a grave
violation of the rules of modem warfare by the two
nations we are in the habit of regarding as in the van
of civilization and progress. And still nearer home,
we hâve the expenence of France in the late war with
Germany where m thirty-four invaded provinces there
were losses of private property by fire, pillage, or﻿230
S TA TES IN A TIME OF WA F.
otherwise, amounting in value to three hundred and
seventy-five million francs.
Certain writers, in their earnestness to condemn pil-
lage, go so far as to forbid the taking of booty.
But while we would earnestly condemn the taking of
any spoil whatsoever from non-combatants, we cannot
see the injustice of allowing the capture of articles
found on the field of battle, or taken from the enemy
in arms. Modem usage sustains this view, and makesa
distinction as to the ownership of property taken on the
field of battle. Money, clothing, and utensils go to
the captor, while the material of war goes to the state,
with a certain allowance of its value to the captors.
It has long been a custom among military officers
to levy contributions and réquisitions while carrying
on hostile operations in the enemy’s country, the
latter being sometimes demanded of friends as well
as foes.
Contributions are submitted to with a view of secur-
ing an exemption from pillage, and are justified by
some writers as being less severe. It is difficult,
however, to allow contributions on any such plea,
since pillage has been unqualifiedly condemned by ail
standard authorities.
Réquisitions were levied by Washington in the révo-
lution, and consisted of demands for certain speci-
fied articles or services which are needed for military
fpurposes by the officer asking them.
Both these practices are contrary to the spirit of
the présent âge, and the general judgment as regards
the proper means of carrying on war and were consid-
ered as measures of doubtful utility to the invader by
Napoléon I., who admits, in his Mémoires, that the ex-
cesses committed in these directions in his wars against﻿SEIZURE OF PRIVA TE PROPERTY.
231
Spain contributed not a little to the reverses which he
sustained in the Peninsula.
General Scott, in the war between the United
States and Mexico, recognizing that the levying of
contributions or réquisitions was calculated to inten-
sify the hostile spirit of the invaded people, avoided
the employment of these means of supporting his army
as far as possible, although his instructions from the
Secretary of War, Mr. Marcy, expressly authorized
them.
The Franco-German war of 1870-71 gave rise to
many new questions in international law. Among the
most important are those which concern the séquestra-
tion of railroads.
During the course of hostilities, and for some time
after the armistice, several of the main railway lines in
France were under the complété control of the Ger-
man army. Much of the rolling stock was carried
beyond the frontier.
It was a matter of no little difficulty to reach a set-
tlement between the German authorities and the
railroad companies—the latter claiming that large
amounts of rolling stock and olher property were not
accounted for—and the subject was finally referred to
a mixed commission.
Réquisitions of money, except in cases where they
are substituted for réquisitions in fond, or as a
guaranty to the victor against the refusai of such
réquisitions, cannot be justified.
The German forces, in their recent invasion of
France, fell far short of respecting this principle. Not
only were the réquisitions exorbitant, and not limited
to the necessaries of life—since among the things de-
manded invariably were cigars for the soldiers, liquors,﻿232
S TA TES IN A TIME OF WAR.
fine wines, especially champagne, for the officers, but
beyond this, nearly every town occupied was com-
pelled to pay, at very short notice, enormous contri-
butions in money, far exceeding the resources of the
public treasury, and requiring the authorities to resort to
forced loans from private parties. And these contri-
butions did not secure exemption to the cities from
the usual charges of war ; for they were required to
lodge officers and soldiers in private houses, to make
regular deliveries of goods, clothing, munitions, etc.
The official report of the minister of the interior,
made up from documents prepared by cantonal com-
missions appointed ad hoc, shows that, in thirty-four
invaded departments, an aggregate of four hundred
and fifteen millions of francs had been levied, in
contributions and réquisitions of the sorts just de-
scribed.
The practice of demanding pecuniary indemnities,
although at variance with scrupulous ideas of justice,
has been maintained in modem times by the very
nations who assume to lead civilization. The practice
may even be said to hâve become a System. A
majority of the treaties of the présent century, having
for their object the suspension of hostilities, hâve given
testimony in favor of indemnities paid after the close
of the war. Thus war has in some respects become a
commercial spéculation; for besides the violent an-
nexations of territory, which are common, the victorious
party imposes on the other the payment of enormous
sums, under the pretence of reimbursing itself for the
expenses of the war, or of providing pensions for the
wounded or invalid or the families of the killed.
Many instances of war indemnities are found in the
history of the wars growing out of the French révolu-﻿INDEMNI TIE S.
233
tion of the last century: in ail which France set an ex-
ample, the bitter effects of which she has recently felt
in her own expérience at the hands of Germany.
The absence of any provision for indemnity in the
treatyof 1856, which closed the Crimean war, excited
the hope that European nations had given up, at least
among themselves, this System of pecuniary exactions.
This hope proved only an illusion, for ten years
had not passed ere that System was put in full opera-
tion again by one of the parties to the treaty of 1856:
and Prussia enjoys to-day, without fear of contradic-
tion, the réputation of imposing the most excessive
pecuniary exactions on the States which fall under her
power in war.
The indemnities demanded by Prussia, at the close
of the war of 1866 with Austria and some of the
smaller German States, were enormous, but sink into
insignifiance in comparison with her exactions from
France ac the close of the war of 1870-1.
By the preliminaries as settled at Versailles, the
amount of indemnity was fixed at five milliards of
francs, payable in five years,—no account being taken of
the provinces of Alsace and Lorraine, annexed to Ger-
many, nor of that portion of the public debt properly
chargeable to these provinces.
We hâve seen that the laws of war, as a general
rule, protect private property on land, subjecting it
to capture or destruction only in extraordinary cases.
In maritime warfare the contrary principle prevails ;
so that merchant-ships and their cargoes, although
essentially private property, aresubject to confiscation,
and their crews, in case of capture, are considered and
treated as prisoners of war.﻿234
S TA TES IN A TIME OF WA R.
Mably is the first writer who has protested against
this anomaly.
“ We should regard with horror,” sayshe, ‘‘an army
that would make war on private citizens, and despoil
them of their property : this would be to violate the
law of nations and of humanity. Now, I ask how that
which would be infamous on land can become just, or,
to say the least, allowable, on the sea ? Merchants look
with horror on the armingof privateers, and would learn
with profound satisfaction that the great powers had
agreed, in time of war, to prohibit their subjects from
fitting out privateers, and their war-vessels from insult-
ing or seizing merchantmen. ...”
Franklin, after the récognition of the independence
of the United States, supported the same doctrine,
and endeavored to secure its practical adoption.
In 1823, the United States, taking up the idea of
Franklin, proposed to the great powers of Europe, the
récognition of the inviolability of private property :
but the negotiations entered upon with England,France,
and Russia led to no practical resuit; and the question
remained unsettled until the Congress of Paris, held in
1856, declared for the abolition of privateering, and laid
down several principles of maritime law, among others
that “the neutral flag covered enemy’s goods.”
The United States declined to enter into the agree-
ments proposed by this congress, for the reason that
they only went so far as to abolish privateering, making
no provision against the capture of maritime prizes by
war vessels. The American Secretary of State declared
the willingness of his government to enter mto an
agreement by which the private property of the sub-
jects or citizens of a belligerent power should be ex-
empted from seizure by public armed vessels of the﻿PRIVA TEERS.
235
enemy, except it be contraband of war; and agreed that,
with this provision, the United States would consent
to the placing of privateering under the ban of the
law of nations.
The term privateer is applied to vessels fitted up
and armed by individuals in time of war, and designed,
with the authority of the government whose flag they
carry, to prey upon the merchant marine of the enemy.
The right of a belligerent to capture the vessels of
his opponent being recognized, it follows, as a matter
of course, that he may use to this end his naval forces,
including privateers as auxiliaries.
It is in this character of authorized auxiliaries that
privateers attain a greater public considération, and
consequently fuller international récognition, than the
corps francs that figure in hostile operations on land.
Although the practice of privateering has been
maintained as a feature of civilized warfare in very re-
cent times, it has long been opposed by many of the
ablest publicists. Two centuries ago Grotius lifted his
voice against the arming of privateers,—urging that they
worked préjudice to individuals, and especially to
neutrals, to a much greater degree than they served the
public interest, and that they did no real harm to the
enemy. Some years later this courageous position was
sustained by Mably and Galiani.
In 1785 a treaty was made by the United States and
Prussia, in which it was agreed that, in case hostilities
arose between them, no letters of marque should be
issued.
In 1789 a proposition to abolish privateering was in-
troduced into the French assembly by Deputy Ker-
saint, and, after mature deliberation, the following was
unanimously adopted :—﻿S TA TES IN A TIME OF WAR.
236
“The executive is invited to negotiate with the
foreign powers to secure the suppression of privateer-
ing, and to assure the freedom of commerce.”
The negotiations set on foot by this resolution did
not, however, meet with general favor : the Hanse
towns being alone in accepting the new doctrine.
In 1823, France made another attempt at reform in
this direction, during our intervention in Spain, by
making a public announcement that she would issue
no letters of marque, and calling on the other powers
to do what they could to interfère with the operations
of any privateers that might be commissioned by Spain.
During the same year, the President of the United
States endeavored to induce the governments of
England, France, and Russia to join him in an ef-
fort to settle, once for ail, not only the question of
privateering, but that of the inhérent rights of belliger-
ents and neutrals.
After the close of the Crimean war, the congress
held at Paris, in 1856, made a most important advance
in international law, by the déclaration of the following
principles :
1.	Privateering is abolished.
2.	Enemy’s goods under a neutral flag must be re-
spected, except contraband of war.
3.	Neutral goods cannot be taken, even under the
enemy’s flag.
4.	Blockades are not to be respected unless made
effective.
This déclaration was accepted by the great majority
of maritime powers in Europe and America. Only
Spain, Mexico, and the United States refused their ad-
hesion to the proposed agreement. The first two of these
countries justified their refusai by the relative weak-﻿CIVIL WA R' IN TH& UNITED STATES. 237
ness of their navies. The United States demanded
the addition of a provision exempting ail private prop-
erty from capture at sea. France, Holland, Italy,
Prussia, and Russia were disposed to agréé to this, but
England took strong ground against it.
The late civil war in the United States revived the
old discussions in regard to privateering. The British
Government endeavored, at the beginning of the
strife, to induce the confederate government to accédé
to the déclaration of the Congress of Paris, but met
with no success. Moreover, the President of the Con-
federacy, in his message to the Montgomery Congress,
in April, 1861, spoke of privateering as one of the
measures of defense to be adopted, in view of the fact
that his government was without a navy; and heasked
authôrity to accept the numerous offers he had received
of service in this direction. The Confederate Congress
hastened to grant the authôrity asked, and passed a
law to this effect the very day the message was re-
ceived.
The authorities at Washington took a very different
course.
Their efforts in this direction, however, came too
late, for Lord John Russell, chief of the Foreign Office
of Great Britain, in response to a communication from
Mr. Seward, the American Secretary of State, took the
ground that “ England, having accorded the character
of belligerents to the Confederate States, had practically
recognized their right to employ privateers.”
Under this State of things the Congress of the
United States did not hesitate to authorize the issu-
ing of letters of marque; President Lincoln did
not, however, avail himself immediately of this au-
thority.﻿S TA TES IN A «TIME OF WAR.
238
As for the confederates, they were forced to resort
to armaments under their own flag, as the States bound
by the déclaration of 1856 refused torecognize in their
ports the letters of marque issued by President Davis.
At the sametime the large facilities afforded the con-
federates by certain European powers soon obliged
Mr. Seward to direct Mr. Adams to inform Lord
Russell that the government of the United States
would be compelled to issue letters of marque as the
only means left to them of dealing with the piracy of
vessels, which, in violation of express treaty stipula-
tions, were continually sallying forth from European
ports to prey upon American commerce.
A royal decree of Prussia, dated July 24th, 1870, or-
dered the création of a volunteer navy.
This decree invited individuals to place themselves
and their ships at the disposition of the government.
The ostensible object was to secure the destruction
of French war vessels; and to this end bounties were
offered ranging from 10,000 to 50,000 thalers, accord-
ing to the size and rank of the vessel. This abnormal
institution cannot be regarded as anything else than
privateering under an assumed name.
The principle of the inviolability of private property
on the sea is one of quite recent date ; neither
Wheaton, RiqueJine, nor Ortolan, urge it. On the con-
trary, they defend the most rigorous treatment of
enemy’s property on the sea. Ortolan, however, ex-
presses the hope that existing custom in this regard may
be improved upon in the future. Cauchy and Gess-
ner indulge the same hope, and the latter ventures to
predict that, in spite of the many obstacles in the way,
commercial freedom on the sea will in due timç
triumph, as civil liberty has done on land.﻿P RIVA TE P RO PER T Y ON THE SE A.
239
Two years before the déclaration of the Congress of
Paris, the chamber of commerce of the city of New
York adopted resolutions condemning privateering,
and urging the inviolability of private property on the
sea.
In May, 1866, Austria, being then at war with Prussia,
issued an ordinance proclaiming the inviolability of
private property on the sea in ail cases where her op-
ponent in arms would reciprocate. To this principle
Prussia and Italy gave in their adhesion. This auspi-
cious action was, no doubt, owing in great measure to
the influence of the chambers of commerce of several
of the prominent maritime cities of Europe, where re-
solutions had previously from time to time been adopt-
ed strongly urging the doctrine of inviolability.
This pjinciple has received a most important sanc-
tion in the recent decision of the court of arbitration
constituted to settle the daims of the United States
against England growing out of the déprédations of the
Alabama and other vessels fitted out in England for
the service of the Confederate States in the late Amer-
ican civil war.*
Another great impetus was given to the reform we
are considering, by the adoption unanimously, after a
long and spirited discussion in the Diet of North Ger-
many, in 1868, of the following :—
“ The chancellor is requested to take advantage of
the friendly relations at présent existing with foreign
powers, to enter into negotiations with the view
of raising the liberty of private property on the sea in
time of war to the level of a recognized principle of
international law.”
* See Chap. V.﻿240
S TA TES IN A TIME 0F WAk.
Notlong after, the Fédéral council confirmed the ac-
tion of the Diet, and the minister of the Confédéra-
tion at Washington was charged withthe duty of open-
ing negotiations on the subject with the Government
of the United States. The matter, however, still re-
mains in an unsettled condition.
In the last war between France and Germany,
the liberal principles adopted by Austria, Prussia,
and Italy were not carried out, although serious
efforts were made on both sides in this direction, fully
committing both nations to the doctrine of inviolability
as sound in theory.
England alone, of ail the great maritime pow-
ers, holds back in the march of civilization in this
matter.
In the House of Commons, on the 2ist of April,
1871, a demand was made for the révision of the
déclaration of Paris, looking to the re-establishment
of privateering and the right of search, in vol vin g
the right to seize and confiscate enemy’s goods wher-
ever found.
This proposai was opposed by the government,
through Mr. Gladstone, though only on the ground
that its adoption would place England in antagonism
with nearly ail the maritime powers.
It is proper to say, in this connection, that if the
United States did not accept the proclamation of
Paris, it was not because she did not approve the
principles set forth, but because she did not regard
them as broad enough, the United States having ex-
plicitly urged the adoption of the principle of invio-
lability on more than one occasion.
In view of ail we hâve recited as to the attitude of
France, Austria, Prussia, the United States, Italy,﻿PA SSP OR T S AND SAFE-CONDUCTS.
241
and Germany, we do not hesitate to affirm that the im-
portant doctrine ot inviolability has practically carried
the day, and will soon be recognized as a principle of
international law by ail nations.
SECTION VII.—RE LA TIONS BETWEEN BELLIGER-
ENTS.
The progress of civilization has steadily narrowed
the extent of hostilities between two nations at war,
giving morè and more freedom of intercourse between
non-combatants. Trade is now allowed in many
directions between belligerents and neutrals, such in-
tercourse being termed commercia belli. In this, every-
thing dépends on a strict observance of good faith.
Heffter says that qo publicist has ever dared to
controvert the déclaration of St. Augustin in the sixth
century: Fides etiam hosti servanda est. “Ail civilized
nations/’ he adds, “now admit the principle that
treaties and promises hold good, even in war and be-
tween enemies, and ought, in every possible particular,
to be executed in good faith.”
Passports and safe-conducts are letters of protec-
tion by which the person of an enemy is rendered in-
violable. These may be given in order to carry on
the peculiar commerce of war, or for reasons which
hâve no relation to it, which terminate in the person
himself. As they are exceptions to the non-intercoufse
of war, they are stricti juris, as far as relates to the
person, the time of his sojourn, his route and résid-
ence, and in a degree to his effects and attendants.
If he remain beyond the prescribed time, with no inévi-
table necessity from illness or other cause, he can be
treated as a captive. If he is discovered in intrigues,﻿242
S TA TES IN A TIME OF WAR.
his passport is vitiated. If he acts as a spy, of course
he forfeits the right of protection.*
Passports and safe-conducts may be revoked by the
power that issues them. The laws of honor,’however,
forbid any acts of bad faith, such as the subjection
of goods to confiscation which had been transported
to enemy’s territory under due protection.
Laws for the punishment of violations of safe-con-
ducts are found on the statute books of every civilized
nation.
When an officer in command of a hostile expédi-
tion wishes to protect persons or property exception-
ally situated, he issues a spécial order, known as a safe-
guard. This applies most commonly to archives,
libraries, or other public édifices, to the property of
friends or neutrals, and sometimes, though rarely, to
enemy’s goods. Safeguards are very often issued on
the eve of an assault, or after a battle, for the purpose
of preventing excesses by the soldiery.
The violation of a safeguard is made punishable
with death by the military régulations of most nations.
Vessels carrying a flag of truce, and used for the ex-
change of prisoners, or to carry proposais of a pacifie
nature, are called cartel-ships.
These vessels and their crews are considered as
neutral, with the understanding thatthey do not carry
merchandise, nor any arms or munitions, save one gun
for signal purposes.
We understand by rédemption or ransom the price
agreed upon between the captor and the owner of cap-
tured goods for the restoration of these goods.
The législation of different nations is by no means
the same on this subject.
* Woolsey.﻿RANSOM—FLAGS OF TR U CE.
243
England prohibits the ransom of vessels captured
in the open sea, on the ground that it obstructs the
exercise of the right of war, and exposes fhe privateers
eventually to the danger of losing the value of lhe
prize through recapture.
Ransom is also prohibited by France, Holland,
Sweden, Russia, and Denmark. Spain allows privateers
to exercise the right, when they hâve as many as three
other prizes. The United States laws allow ransoms
without any restriction whatever. Writers hâve varied
in their opinion, as to the desirableness andpropriety of
ransoms. We are disposed to approve the practice as
one of the most efficacious means of lessening the evils
of capture.
The ransom contract insures the captured vessel
against being taken again, but not against the périls of
the sea; so that if the ransomed vessel be lost, her
owners or insurers may still be held to pay the
ransom.
The ransom contract loses ail value when the captor
is himself taken by a naval vessel or privateer belonging
tothe country under whose flag the ransomed vessel
sailed.
Under certain circumstances hostages are taken, the
better to ensure the payment of the ransom.
Bearers of flag s of truce, that is to say, officers
sent towards the enemy’s lines with a view to entering
upon negotiations, are held as sacred and inviol-
able, unless they abuse their privilèges to act as spies,
or incite treason. Whoever intentionally wounds or
kills the bearer of a flag of truce is considered guilty
of a flagrant violation of the laws of war.
It is customary to blindfold bearers of flags of truce
when they enter the enemy’s lines and while they﻿244
S TA TES IN A TIME OF WAE.
remain within them; but every facility must be afforded
them for the fulfillment of the object of their mis-
sion. They must not be made prisoners, and should
be enabled to return in safety.
Commanding officers are not bound to receive flags
of truce at any time they may happen to be presented.
Their réception may sometimes be incompatible with
the interests of the side that is asked to receive them.
Hostilities may be suspended for certain purposes,
such as for the removal of the wounded, the burial of
the dead, or to allow time for the réception of orders
to evacuate a besieged place. Longer and more
formai suspensions of hostilities are termed truces or
armistices.
The truce or armistice may be partial or general,
extending only to spécial forces and places, or it may
include ail the forces engaged.
During the continuance of a truce the belligerents
may carry on military works and préparations of ail sorts,
with the single exception that they are not allowed
to extend works or effect movements of troops which
the enemy could prevent but for the existence of the
truce.
When the time agreed upon for the continuance of
a truce has expired no formai déclaration is necessary
for the resumption of hostilities. But if the truce was
indefinite as to its duration, notice of its termination
would be expected.
By capitulation is understood an arrangement pro-
viding for the submission to the enemy of a corps of
troops, a city, a fortress, or a district.
In conventions of this sort stipulations are usually
made guaranteeing security of person, safeguard of
non-combatants and of places and property belonging﻿CAPITULATIONS.	245
to them, protection of religion, and the usages and
customs of the country.
The power of making capitulations rests in the
commanders of armies and of fleets, of places and de-
tached corps, or other persons having the power to
enter into truces or armistices.
According to the valor and duration of the résist-
ance, capitulations often contain spécial conditions,
such as the marching out of the garrison with the
honors of war, that is to say, with flags flying and
drums beating ; or the release of the captured on their
parole not to take up arms again during the war.
The war of 1870 furnishes many instances of
capitulations, ail of which, from that of Sedan in
September, 1870, to the armistice of January, 1871, were
in practically the same terms.
The essential points may be stated as foliows:—The
surrender to the victorious general, or his authorized
agent, of the fortress and the material within it ; army
or garrison to be prisoners of war, with the exception
of members of the national guard and of the garde mobile
living in the place before the déclaration of war;
freedom to officers, and employés having the rank of
officers, on their written parole of honor not to bear
arms against Germany during the war,—those accept-
ing this condition to retain their arms, horses, and Per-
sonal effects ; the delivery of an inventory of the
material of war, including flags, arms, and munitions,
etc., to one or more German commissaries ; surgeons to
remain and care for the wounded.
SECTION VIII.—CONQUE S T.
Conquest is an essentially different affair from occu
pation.﻿246	STATES IN A TIME OF WAR,
In ordinary language the word conquest is used
in referring to territory taken from the enemy,
but when we wish to fall back on the strict and tech-
nical meaning of the word, we make use of it only in
cases where occupied territory passes definitely into
the hands of the conqueror ; that is to say, when the
title of the victor has been completed by formai aban-
donnant on the part of the conquered. Until this
last act is consummated there is nothing more than
military occupation, Peace alone gives to conquest
or violent annexation the sanction of right, this being
reached through the international act or treaty which
puts an end to the war. Sometimes such a treaty
places everything in statu quo ante bellum ; sometimes
it authorizes the uti possidetis ; sometimes it provides
for the restitution of certain territories, or the absorp-
tion of others by the victor, the title to which, resting
on the right of conquest, becomes definite and com-
plété. A recent instance of such a treaty is that
signed at Frankfort in May, 1871, between Germany
and France, which effected the cession of Alsace,
and a part of Lorraine.
The transfer of sovereignty over occupied territory
is not regarded as complété until the forms of cession
above described hâve been fully complied with.
Conquest naturally opérâtes to effect changes, often
radical, in the political condition of the conquered
districts. One of the most frequent and natural re-
sults is the subjection of the territory and its peopleto
the laws and principles of government of the country
making the annexation.
The sovereign may, however, keep his new acquisi-
tion under military rule for a longer or shorter period ;
he may likewise secure toit, in such measureaspleases﻿TRANSFER OF FEAL T Y.	247
him, rights, privilèges, and institutions different from
those of his other subjects
The definite confirmation of a conquest has a rétro-
active effect on the rights of property, making valid
ail contracts and deeds of property executed pending
the military occupation, and confirming ail acts ema-
nating from the military authorities during the occupa-
tion.
Natural law would make it plain that the conquest
or regular cession of a territory freed its inhabitants
from ail oaths of allegiance to their former sovereign,
and enjoined strict fidelity on their part to the new
sovereign. Even the perpétuai fealty on which Eng-
lish law vaunts itself gives way before this principle.
In ancient times, when the principles of absolutc
monarchy held sway, publicists held that the sov-
ereignty, with the duties of fidelity growing out of it,
was transferred absolutely. The practice of the pré-
sent day is more liberal and équitable, and requires,
for the complété and final transfer of allegiance, that
the consent (express or implied) of the inhabitants
of the ceded territory shall be formally given.
This principle leaves the inhabitants of conquered
territory perfecfly free to prove their fidelity to their
ancient sovereign, by quitting the territory taken from
him in the issue of war, and making their homes in
those portions of his* country that are still left to him.
And it is understood that those who remain in the
ceded territory do by this act give in their adhesion to
the new ruler.
This doctrine is clearly stated by Ch ief-Justice
Marshall, as follows :—
At the moment of the transfer of territory, the re-
lations of its inhabitants with the old sovereignty are﻿248	s TA TES IN A TIME OF WAR.
dissolved ; the same act which transfers the proprietor-
ship of the soil, transfers also the fealty of those who
continue to remain upon it ”
The principle stated above may be modified in its
application by conventional stipulation, as in the case
of the treaty of Guadaloupe-Hidalgo, between the
United States and Mexico (i848),*which provided that
Mexican citizens residing in the ceded territory of
New Mexico and California might preserve their
nationality by giving notice of their intention to do so
within a year after the exchange of ratifications. In
the absence of any such notice they would, at the end
of the year, be understood as having transferred their
allegiance to the United States.
Similar provisions are found in the treaty in which
France ceded Louisiana to the United States, in sev-
eral of the treaties in which France retroceded territory
which she had acquired by conquest under the empire,
and in the treaty which transferred Nice and Savoy
from Italy to France.
One of the effects of conquest is to give to the con-
queror the entirety of rights over the incorporated ter-
ritory which belonged to the former ruler.
“War,” says Vattel, “authorizes the conqueror to
possess himself of what belonged to his enemy ; if he
deprives him of the sovereignty of a city or a prov-
ince, he acquires this, such as it is, with whatever
limitations or modifications attach thereto.”
It does not, however, always follow, as Vattel main-
tains, that conquered cities and coun tries preserve ail
their privilèges and immunities, for, in point of fact,
certain political rights fall, from necessity, from the
mere fact of conquest.
Before its annexation to the United States the prov-﻿EFFECTS OF CONQUEST.
249
ince of New Mexico enjoyed the right of représenta-
tion in the Congress of Mexico. When it was con-
quered by the United States forces, the military
government organized for the province included a
provision for the sending of a représentative to Wash-
ington. This was declared null by the President of
the United States, on the two grounds that the com-
manding officer had exceeded his powers, and that
the right of représentation was one of those which
conquest annihilated.
It seems reasonable that the political institutions of
a conquered territory should be made to correspond
with those of the country of which it becomes a part.
This rule may, however, be modified to a certain ex-
tent in view of existing customs, manners, etc., but not
usually so far as to amount to the allowance of a dis-
tinct nationality. Finland, however, after its conquest
by Russia, retained its national existence. It has never
become an intégral portion of the Russian Empire, and
the Czar is not known by that title, or by that of Em-
peror, in Finland. He is recognized only as Grand
Duke. His powers are clearly defined by a constitu-
tion. Finland has a coinage quite different from
that of Russia, and corresponding to the monetary Sys-
tem of the Latin union.
Conquest has no effect on the ownership of private
property. Chief-Justice Marshall States this principle
in the following forcible ternis :—
“The modem usage of nations, which has become
a law, would be violated ; that sense of justice and of
right, which is acknowledged and felt by the whole
civilized world, would be outraged, if private property
should be generally confiscated, and private rights an-
nulled. The people change their allegiance ; their﻿250	STATES IN A TIME 0F WAR.
relation to their ancient sovereign is dissolved ; but
their relations to each other, and their rights of prop-
erty remain undisturbed.”
This principle of international law and of equity has
been sustained by every government to which the sub-
ject has been presented.
In the United States and in France, the custom has
been followed of confirming titles to property in con-
quered territory by the passage of spécial acts to this
end.
Public debts of ail kinds are regarded as attaching
to the soil, and not as personal to the sovereign under
whose reign they were contracted. This is a recog-
nized principle of international law, which has received
universal treatv sanction since the end of the last
century.
The case of the Elector of Hesse, who refused to
recognize certain transactions of King Jerome while
he governed Hesse as king of Westphalia, furnishes
the only example of any importance of an attempt to
escape from the operation of this principle. The
Elector’s position was not sustained by the tribunals to
which the case was appealed for settlement.
SECTION /X— THE TERMINA TION OF WAR, AND
TREAT1ES OF PE ACE.
The suprême object of war is the securing of peace,
the establishment of quiet and tranquillity; in other
words, the restoration of amicable relations between
nations whose friendly intercourse had been broken
in upon by hostibties.
There are three principal means of effecting
peace:﻿CESSATION OF HOSTILITIES.
251
1. The actual cessation of hostilities on the part of the
belligerents, and the resumption of those relations
which existed before the war. 2. The absolute submis-
sion of one of the belligerent States to the other as the
natural resuit of conquest. 3. The conclusion of a
general and formai treaty of peace.
An instance of the first method is found in the
course pursued by Poland and Sweden in 1716, peace
ensuing practically on the suspension of hostilities,
though a period of ten years elapsed before it was re-
cognized de jure by an exchange of letters between
the sovereigns of the two countries. A similar case
occurred not long ago between Spain and Chili.
There are serious objections to the employment of
this method of ending a war, the chief of which is the
uncertainty remaining as to whether the cause of war
is removed,—in other words, whether the suspension of
hostilities is anything more than temporary.
The submission of the vanquished to the conqueror
may be absolute or conditional; but submission even
without conditions is to be taken in accordance with
the laws of humanity. According to modem usage,
the victor may possess himself of the territory of the
vanquished State, but he can never interfère with the
private rights of the enemy nor infringe on the liberty
of persons.
Treaties of peace are conventions in which two or
more sovereign States make express provision for the
termination of hostilities, without compromising thein-
dependence of either.
In general it may be said that the chief authority in
the State, being clothedwith power to déclaré war, may
also sign treaties of peace: this is the case in absolute
monarchies, and in most représentative governments.﻿252
S TA TES IN A TIME OF VVAR.
History offers, however, many instances of a differ-
ent practice.
Thus, after the death of Charles XII., the kings of
Sweden could dispense with the consent of the Diet in
declaring war, but could not make peace without the
approval of the senate. A similar practice prevailed
for a long time in France, where, under the reign of
Francis I., the Estâtes General annulled the agreement
by which the king ceded the province of Burgundy
to the Emperor Charles V., as the price of his liberty.
The présent law of France gives the head of the
State full power to déclaré war and sign treaties of
peace.
In England the power of making war and peace ap-
pertains nominally to the crown, but practically to
Parliament, at least so far as it concerns the prosecu-
tion of war, for this body may refuse to vote the neces-
sary supplies for carrying on war.
In the United States the President is alone author-
ized to make treaties of peace, which do not, however,
become of permanent binding force until they are rati-"
fied by the Senate.
A captive sovereign cannot make peace. The fact of
his captivity deprives him for the time being of his sov-
ereignty, and his powers devolve on the other regularly
constituted authorities.
It often occurs that belligerents, both equally weary
of war, continue hostilities, each fearing to show signs
of weakness by making overtures of peace. In such
cases friendly governments may interpose, and save
the amour-propre of both parties by opening the way
for negotiations.
Including ail the conséquences of ordinary public
conventions and international agreements, treaties of﻿. EFFECTS OF TREATIES OF PE ACE,	253
peace in volve conditions and results peculiar to
themselves, the most important of which are the
following : —
First of ail, they establish new relations between the
contracting parties ; and it becomes a matter of slight
considération whether the war was justly or unjustly un-
dertaken by the victor.
Peace gives a definite settlement to international
différences, whatever may hâve been the causes or pre-
texts for hostilities, and removes ail ground for daims
on account of injuries received during the strife. A
new war can only be provoked by new causes.
The settlement of private daims is usually provided
for in such a manner as to preclude the possibility of
their becoming the subject of international dispute.
Amnesty to ail parties is implied in treaties of peace
even when not directly expressed.
Treaties of peace often include, or are followed by,
articles ceding territory to the successful belligerent,
or rectifying frontiers. In the case of cession of terri-
tory, it is usual to provide definitely for the rights of
the individuals who pass with the ceded territory under
the permanent*rule of the conqueror.
Ail hostile acts, such as réquisitions, contributions,
etc., cease with the conclusion of peace. A reasonable
time, however, is to be allowed for the withdrawal of
troops. And, in certain cases, the forces of the enemy
remain in the country of the vanquished after a treaty
of peace is perfected. Such, for example, was
the case at the conclusion of the Franco-German
war of 1870-71, when certain German troops con-
tinued to occupy French territory until the discharge
of the indemnity agreed to be paid by France to
Germany.﻿254
STATES IN A TIME OF WAR.
The conclusion of a peace gives liberty to ail pris-
oners of war. These are usually transportée! under
military escort to the frontiers of their own country
and there set free.
During the late war with France, Prussia put certain
restrictions on the libération of prisoners, retaining
those who had been condemned to imprisonment by
the local authorities for violation of discipline while
prisoners of war. France exercised no such restraint
over her prisoners.
The conclusion of peace does not invalidate engage-
ments made prior to the war, nor does it interfère in
any way with the private rights of subjects or sove-
rcigns, unless by spécial stipulation.
In general, it may be stated that the efîects of peace
take one of two directions, unless otherwise prescribed
in the treaty; ail things are left as found at the cessa-
tion of hostilities, or restored to the positions in which
they were at the beginning of the war.
In the first case, ail occupied or conquered places
remain under the power of the victor, according to
the rule utipossidetis. In the second case ail such pos-
sessions are placed in statu quo ante bellum. This,
however, refers only to what may be termed the politi-
cal status, there being “no obligation to repair a dis-
mantled fortress, nor to restore the former condition
of a territory which has been ravaged by the oper-
ations of war.”*
International conventions, the operation of which
has been suspended by the existence of war, résumé
their force at the conclusion of peace, unless they
hâve been modified or abrogated by the terms of the
treaty of peace.
* Halleck.﻿VALIDITY OF TREATIES OF PEA CE.	255
When England, having accorded to the United
States by the treaty recognizing their independence,
the right to fish on the shores of her provinces, claimed
that this right was abrogated by the war of 1812, the
United States successfully maintained that the provi-
sions of the old treaty were only suspended in their
operation by the war, coming into full force again at
its termination.
Treaties of peace take effect from the moment of
the exchange of ratifications, unless otherwise pro-
vided ; and when such treaties are regularly entered
into by competent authorities they bind the entire na-
tion, and even new governments that may succeed
those making the treaties.
The following conditions are necessary to give val-
idity to a treaty of peace :—
1.	The contracting parties should be duly author-
ized to act ;
2.	Their consent to the treaty should be unreserved ;
3.	This consent should be free and spontaneous.
To these three conditions two others may be added,
viz. :—that the understanding and acceptance of the
stipulations should be reciprocal, and that their execu-
tion should be practicable and not difficult.
The non-execution or the violation of one or more
provisions of a treaty is often regarded as nullifying
the whole agreement ; at ail events it frees the other
party from his engagements, and gives ground for de-
mands for réparation and guarantees for the future.
Treaties of peace usually open with a déclaration of
perpétuai friendship between the contracting parties.
History shows, however, that such déclarations mean
nothing more than assurances that a particular war is
ended, and involve only a promise not to resort to﻿256	STATES IN A TIME OF WAR,
hostilities again for the causes understood to be set-
tled by that war.
SECTION X.—R IGIIT S OF POSTLIMINY AND
RECAPTURE.
The right of postliminy, jus postliminii, is a fiction
of law by virtue of which persons and property which
hâve passed under the control of the enemy, recover
their former status when they corne again under the
authority of the nation from which they were forced by
the act of war. This right evidently rests on the great
principle of the sovereignty of nations. The limits of
the exercise of this right are not absolutely determined.
Real property confiscated and sold under the enemy’s
rule returns without question to its former proprietor
when the enemy’s authority is withdrawn.
Movables, according to modem usage, are not af-
fected by the right of postliminy, this exemption
having grown out of the difficulty of proving owner-
ship and recognizing property.
When territory occupied by the enemy is restored, be-
fore or after the end of the war, either by force of cir-
cumstances, or by the provisions of a treaty of peace,
it is held that the right of the sovereign has not been
interrupted : in such a case the application of the right
of postliminy admits of no question.
When a State which has completely lost its sover-
eignty, regains b by unaided révolution, the rights of
postliminy may be fully exercised. But when such
conquered State has aid in throwing off the power of
its foreign masters, the State rendering assistance may
hâve a voice in determining how far the rights of post-
liminy may be enjoyed.﻿CONTRA CTS AFFECTING P UBLIC DOMAIN 257
Vattel and Halleck maintain that the full exercise of
the right should be accorded by the deliverer.
Heffter and Bluntschli take the ground that where
the deliverance is effected wholly by outside aid, the
liberating power has the right to.be a party in the ne-
gotiations which détermine the future condition of the
country. The will of the people should of course be
counted as having very great weight.
During the last war between France and Germany,
an interesting question arose concerning a contract
permitting the cutting of wood on the public domain.
The German authorities entered into contracts author-
izing the removal of wood from the forests near Nancy.
At the conclusion of peace the parties engaged in
removing the wood, had not completed the work they
were authorized to do under their contract with the
Germans. As they had paid into the German treasury
the full considération demanded of them by the terms
of their contract, they claimed the right to go on with
the wood-cutting. This claim the French govern-
ment refused to allow, urging that ail contracts made
bythe Germans during their occupancyof French ter-
ritory were annulled by the establishment of peace.
This position was admitted to be correct by Ger-
many.
The application of the right of postliminy to re-
captures affects the interests of both belligerents and
neutrals.
When the vessel belongs to the nation effecting the
recapture, it is évident that the question of ownership
must be determined according to the public internai
law of this nation.
The difficulties of reaching just conclusions in such
cases, are increased by the différences existing in dif-﻿258	STA TES IN A TIME OF WAR.
ferent nations as to the conditions laid down for the
extinction of the rights of the primitive possessor.
According to Halleck, “ No difficulty can occur in
regard to those who admit the necessity of condemna-
tion by a prize court. To others it is usual to apply
the rule of reciprocity.”
The United States hâve adopted the rule of restor-
ing a recaptured vessel, when the recapture is made
before the vessel has been condemned by a prize
court. If the recaptured vessel is owned by residents
of the United States, or by persons claiming their
protection, restoration is made on the payment of
costs and the amount decreed by the court for dam-
ages. The same rule applies when the recaptured ves-
sel is owned by citizens of a nation at peace with the
republic. The United States applies the rule of re-
ciprocity to its fullest extent.
The rights of the proprietor of a neutral cargo or
vessel, taken by one belligerent and retaken by the
other, are by no means uniformly determined.
The greater part of the régulations governing prizes
in general make no allusion to such ; and when they
are spoken of, they are assimilated with the recaptures
of national vessels.
Two hundred years ago it was a rule admitted by
ail Europe that a vessel retaken from pirates, belonged
to the recap tors. The parliament of Paris, of 1624, so
declared, in conformity with the then existing laws of
Spain, Holland, and Venice.
Grotius and Barbeyrac approved this doctrine, lim-
iting its application, however, to cases where the orig-
inal owner and the recaptor were subjects of the same
nation ; holding that when the vessel belonged to
foreigners it ought to be restored.﻿RESTORA TION OF VESSELS.
259
Modem practice demands the restoration of the
vessel in ali cases, allowing, however, a liberal salvagc
to the recaptors. English law gives one-eighth of the
actual value of the recaptured property as salvage.﻿CHAPTER V.
NEUTRALITY.
SECTION /.—DEFINITION AND HISTORICAL SKETCH OF
NEUTRALITY.
IN ancient times the State of neutrality was not
recognized in international law. Neither the
Greek nor the Latin languages contain any word that
exactly expresses the idea. This lack of a suitable
Word in the language in which he wrote compelled
Grotius to apply the term medii to neutrals, whom
Bynkershoek calls non hostes. Since the end of the
seventeenth century every writer has given a défini-
tion of neutrality, ail agreeing on the essential point,
that of non-participation in hostilities, and difîering
only as to the extent of non-intercourse. Impartial-
ity is insisted on, so that whatever facility is accorded
to one belligerent must be extended to the other.
Phillimore déclarés neutrality to consist in (i.) com-
plété abstinence from participation in hostilities, and
(2.) impartial conduct towards both belligerents.
According to Garden, impartiality is the essential
point in neutrality.
Manning says, “Neutral nations are those which
in time of war take no part on either side of the
struggle.”
The history of neutrality may be divided into three
periods, the first ending with the year 1780; the
260﻿HISTOR Y OF NE U TR ALI T Y.	261
second with the Crimean war in 1854; and the third
extending to the présent time.
The first compilation which defines, although im-
perfectly, the relations of neutrality between States is
the Consolato del mare (a. d. 1400).
In this celebrated work the two great questions of
enemy’s goods under a neutral flag and vice versa are
discussed.
In the first, confiscation is allowed; in the second,
the cargo is free, but the owners must pay that amount
of freight to the captor which would become due on
the arrivai of the vessel at its destination.
The principles of the Consolato del ma?'e were speed-
ily recognized and put in practice by Holland, Great
Britain and the other maritime powers, except France,
who held to the policy of confiscating enemy’s goods
together with the neutral ship on which they might
be found, and neutral goods found under the ene-
my’s flag.
Exceptions to this rule were made by France in
favor of the Hanse towns, extending through the fif-
teenth and sixteenth centuries, and in 1615 a treaty
was made declaring the vessels of the league free in
ail cases, and even goingsofar as to recognize the pro-
tection of its flag over enemy’s goods. The same
provisions were extended by France to Holland and
Spain.
The course pursued by France, during this period,
had the effect lo set aside the principles held up in
the Consolato del mare, and to sustain the doctrine—
“free ships make free goods; hostile ships make
enemy’s goods.”
England also allowed the most odious practices to
obtain in reference to the property of neutrals, in-﻿2Ô2
NEUTRALITY.
cluding among articles contraband of war almost every
object of lawful commerce, going so far even as to con-
fiscate provisions and clothing.
The most prominent feature of the period which
ended with the eighteenth century was the uncertainty
as to the rights of neutrals, growing out of the want
of agreement between the secondary maritime powers
of the continent of Europe, on a policy that might
successfully resist the efforts of England to ensure her
supremacy on the sea.
A crisis was, however, brought about by the capture
effected by England in the Mediterranean sea of two
Russian ships laden with grain supposed to be destined
for Gibraltar.
Panin, the Chancelier of the Russian Empire, making
himself the mouth-piece of the general indignation,
persuaded the Empress Catharine II. to déclaré pub-
licly and solemnly that she would not longer submit
to the hindrances imposed on the commerce of neutrals;
and in February, 1780, the Russian Government pub-
lished the famous déclaration containing the five fol-
lowing principles:—
1.	Neutral vessels may sail freely from port to port
in belligerent States.
2.	Enemy’s goods, except contraband of war, are
free under a neutral flag.
3.	To détermine what should be considered as
contraband of war, Russia refers to Articles 10 and 11
of her treaty with England of June 20, 1766.
4.	Only effective blockades shall be recognized.
5.	These principles shall serve as the rules of pro-
cedure in prize courts.
To this déclaration the following nations very soon
gave their formai adhesion :	Denmark, Sweden,﻿ARMED NEUTRALITY.	263
Holland, Prussia, Austria, Portugal, the two Sicilies,
France, Spain, and the United States.
Ail these powers bound themselves to maintain the
new principles, if need be, by the force of arms.
England refused to join the new league, preferring
to hold to the stipulations of her treaties of commerce
and navigation. But the force of the new doctrines
was not to be thus broken, and England was sooncom-
pelled to change the violent policy she clung to in dé-
fiance of the sacred rights of neutrality.
In 1801, England concluded a treaty with Russia
which was designed to harmonize the provisions of the
armed neutrality treaties with the traditional princi-
ples of English maritime law. In this treaty the rigor
of the doctrine that “free ships make free goods”
was somewhat relaxed, the right of search was con-
ceded, and the récognition of the principles that
blockades to be respected must be effectuai, and that
trade with colonies and along the shores of belligerent
nations should be free to neutrals, was secured.
This treaty, however, did not satisfy either party ;
and, in 1807, Russia gave notice of its abrogation, and
proclaimed as her policy the principles of the armed
neutrality of 1801. Freed from its treaty obligations,
England put her old doctrines in force again, not only
against Russia, but also against ail the other neutral
powers.
Many complications in regard to the question of
neutrality grew out of the treaty of 1778 between the
United States and France, in which very unusual privi-
lèges were secured to the latter, intended doubtless
as a compensation for the aid afforded by her to the
former in the war of the Révolution. These compli-
cations continued until the year 1818, when the Fédéral﻿NE UTRALIT Y.
264
Congress passed the Neutrality Act, the provisions
of which hâve remained undisturbed to this day.
The long and bloody strife which was maintained
between England and France at che commencement of
the présent century forms a dark period in the histcry
of neutrality.
In 1806, England took advantage of every opportun*
ity that offered to extend the application of the three
following principles, which she h ad maintained in num-
erous treaties :—1. That the flag did not cover the goods.
2. Thatmerchant ships, under escort, were subject tobe
searched by war vessels and privateers. 3. That a
blockade is valid from the moment of its public dé-
claration.
As a retort to their objectionable doctrines, Napo-
léon issued his famous Berlin Decree (Nov. 1866), in
which it was enacted :—1. The British islands are de-
clared blockaded. 2. No ship coming from England
or its colonies will be admitted into the ports of France
or those of her allies. 3. Ail British subjects taken
by the forces of France or her allies will be treated as
prisoners of war. Ail correspondence by post ad-
dressed to British subjects or to persons residing in
England will be seized.
England was not slow to retaliate, and speedily is-
sued an Order in Council declaring ail the coasts
and ports from the Elbe t Brest in a State of block-
ade, and adding many details calculated to place the
commerce of France and her allies at the mercy of Great
Britain.
This extraordinary condition of things continued
with but little change until the fall of the first em-
pire.
In 1814, when peace returned to Europe, England﻿F0RE1GN ENLISEMENT A CTS.	265
entered into an engagement with Spain not to furnish
arms or munitions of war to the insurgent colonies of
South America.
Numerous enlistments of soldiers and sailors having,
however, been made in the principal ports of the
United Kingdom by recruiting officers in the interest
of the South American revolutionists, and the cabinet
of Madrid having presented complaints the justice of
which could not be contradicted, the British parlia-
ment passed the law known as the “ Foreign Enlistment
Act.”
The provisions of this law, which were borrowed
from the American Neutrality Act of 1818, are still in
force, having been amended in certain points, in 1870,
with the view of effectually preventing the sale or
arming of vessels designed for war purposes.
From the time of the Crimean war may be dated
the first substantial advance towards the general adop-
tion of an enlightened policy in the matter of neu-
trality.
From the moment the alliance between France and
England was agreed upon, it became évident that some
common rules of conduct must be adopted for the
government of their military and naval officers with
regard to neutrals, and that, to reach this agreement,
the traditional policy of one or both nations would
need to be seriously modified.
The initiative was taken early in January, 1854, by M.
Drouyn de L’huys, the French minister of foreign
affairs.
Negotiations went rapidly forward during the
weeks immediately following, and on the 3oth of
March the results appeared in the form of identical
déclarations from each government, published on﻿266
NEUTRALÎTY.
that day in the Moniteur Universel and in the London
Gazette.
Reserving the right to seize contraband of war, to
prevent neutrals from carrying the dispatches of the
enemy, and to punish violations of an effective block-
ade, this joint déclaration provided that a neutral flag
should cover enemy’s goods, that the property of
neutrals under the enemy’s flag should also be free
from capture, and disclaimed any présent intention of
authorizing the fitting out of privateers.
On the içth of April following, the official gazette
of St. Petersburg published a déclaration from the
Russian Government announcing its intention to apply
the rules adopted by the allies.
The liberal policy thus inaugurated was received
witli great satisfaction by the neutral powers, and the
course pursued by them during the continuance of the
Crimean war was such as to give no occasion for re-
gret to France and England at having adopted the
new measures.
The déclaration of the Congress of Paris in 1856,
referred to in aprevious chapter, was the natural consé-
quence of the policy agreed upon by France and
England in 1854, and may becounted as the substantial
advance in international law growing out of the war
in the East.
The principles of the déclaration of the Congress
of Paris received their first practical endorsement in
the war between Austria and Sardinia, in which France
was the ally of the latter, in 1859. These three pow-
ers adopted a policy with regard to neutrals, the results
of which were altogether satisfactory.
The recent civil war in the United States, as might
hâve been expected, gave rise to many very serious﻿CASE O F THE ALEXANDRA.	267
questions more or less directly connected with the
condition of neutrality. The first case worthy of
notice was that of the Alexandra, a vessel under con-
struction in one of the ship-yards of Liverpool. The
American ambassador at London, Mr. Adams, brought
the matter to the attention of the British Government,
and made it clear that the funds fer fitting up the ves-
sel vvere furnished by a Captain Bullock, a spécial agent
of the confederates. The ship was, consequently,
confiscated, but was afterwards restored to the builders,
by order of the courts, although it was évident that her
model and appointments were those of a vessel-of-
war, and not those of a merchantman. The court in
rendering its decision recognized the probability of
the vessel’s being intended for the service of the con-
federates as a privateer, but held that so long as she
remained within British territory no violation of the
act of 1819 had been committed.
The court further took the ground that it was no
violation of the law to construct and completely equip
a vessel-of-war in pursuance of a contract with a bel-
ligerent government, with the full understanding that
this government was to make use of the said vessel in
an existing war, so long as the parties constructing the
vessel had no intention to commit hostile acts them-
selves, but only to sell the vessel to abelligerent power
which was free to use the vessel in such rnanner as it
pleased.
This decision provoked earnest remonstrances from
the government of the United States ; and in July,
1863, Mr. Seward, then Secretary of State, informed
the British government, through Mr. Adams, that if
the decision in the Alexandra affair was sustained by
the suprême court of appeal, and adopted, as a rule﻿268
NE U TR A LIT Y.
of conduct by the English government, the President
of the United States would understand that British
law was powerless to maintain friendly relations be-
tween the subjects of her Brittanic Majesty and the
government and people of the United States, on the
only point where they were likely to be disturbed;
and that in view of this he would suggest to her
Majesty’s government that Parliament be asked to
make such amendments to the existing laws as should
accomplish the results which the two governments
then had in view. And should it become necessary to
hold the interprétation of English law thus given, the
United States would hâve no alternative but to protect
their commerce against privateers sallying forth from
British ports, as against the naval forces of a public
enemy, demanding indemnity for ail injury done by
these armed vessels to the government or citizens of
the Union. And, in case their navy proved insufficient,
the United States would resort to the arming of pri-
vateers.
Some steps were taken in the direction of securing
the amendments suggested by Mr. Seward, but they
amounted to nothing, and the British foreign enlist-
ment act (that of 1819) remained unchanged during
the entire war of sécession.
The second case of importance was that of the gun-
boat Alabama. Leaving the Mersey in July, 1862,
without a gun, or even a musket, this vessel proceeded
to the Azores. After reaching Terceira, she was
joined by two vessels, which had been dispatched
from Liverpool and London, and had brought her com-
mander, Captain Semmes, herofficers, a complété arma-
ment, uniforms for her crew, coal, and provisions.
The transhipment was effected at a certain distance﻿CASE O F THE ALABAMA.
269
from the Portuguese shores, and as soon as it was com-
pleted the Confederate flag was raised to the mast-
head.
The career of the Alabama is too well known to
need to be detailed in this work. Its important re-
lations to international law will presently be con-
sidered.
The other privateers fitted out for the Southern
Confederacy in England, such as the Florida, the
Georgia, the Shenandoah, and others, gave rise to no
questions different from those growing out of the case of
the Alabama.
Towards the close of the civil war, in 1865, the
United States began to urge upon England its daims
of indemnity for the déprédations of the Alabama and
other vessels fitted out in England for the service of
the Confederacy.
England refused to recognize the justice of these
daims, pleading that she had acted in accordance with
law, and had exercised due diligence in her efforts to
prevent the arming of these ships.
The United States, on its side, urged that England
had been precipitate in recognizing the confederates
as belligerents ; that her measures for enforcing her
own neutrality laws had been tardy and insuf-
ficient ; that the law officers of the crown had misin-
terpreted these laws ; that the British government had
not directed the seizure and disarmament of these pri-
vateers, but had allowed them to enter British ports, after
their illégal and fraudulent departure from other British
ports; that it had refused to amend its foreign enlistment
act ; that it had neglected to arrest citizens of the pre-
tended Southern Confederacy when they were openly
engaged in arming and equipping privateers in Eng-﻿270
NEUTRALITY.
land ; and that the effect of ail this was to furnish aid
and comfort to the enemies of the United States gov-
ernment, to inflict great injury on the United States, and
at the same time to secure benefits of the greatest
importance to English commerce and industry.
England, however, persisted in denying the justice
of the daims of the United States, and in refusing to
submit them to arbitration, declaring that to do even
this “would be incompatible with her dignity and
honor.”
Great Britain, while holding to the position above
stated, so far admitted herself to hâve been in error as
to form a commission of distinguished jurists, with a
view to the amendment of her foreign enlistment act of
1819.
The report of this commission, which included such
eminent men as Cranworth, Vernon Harcourt, Philli-
more, Cairns, and Twiss, set forth principles much
more radical than those sustained by the United
States.
The government, however, did not adopt the report
of the commission, but took a middle course, and
after some delay, passed, in 1870, a new foreign enlist-
ment act, which secured several important improve-
ments on the old law.
In 1868, the government of the United States made
another effort, through Mr. Reverdy Johnson, its
minister at London, to secure the reference of the
Alabama daims to a court of arbitration.
These negotiations failed, like ail that had gone
before, and the United States determined to await the
action of England in the matter.
It was not long before the English government be-
came conscious of the mistake it had made in refus-﻿THE GENEVA TRIBUNAL.
271
ing to hâve the Alabama daims referred to arbitra-
tors; and in January, 1871, it took the initiative in new
overtures on the subject.
America was not backward in meeting these over-
tures; and within a few weeks a commission of ten
members, five from each country, was at work in
Washington, perfecting a treatv.
This treaty, providing for a tribunal of arbitration,
was signed on the 8th of May, 1871.
The tribunal was to consist of five members, to be
named as follows:—One by the President ot the
United States, one by the Queen of England, one by
the King of Italy, one by the President of the Swiss
confédération, and one by the Emperor of Brazil.
The following rules were laid down in the treaty of
May, 1871, for the government of the arbitrators in
their deliberations:—
“ A neutral government is bound,— First, to use
due diligence to prevent the • fitting out, arming or
equipping, within its jurisdiction, of any vessel which
it has reasonable ground to believe is intended to
cruise or 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 intending
to cruise or carry on war as above, such vessel having
been specially adapted, in whole or in part, within
such jurisdiction, to warlike use.
“ Secondly, not to permit or suffer either belligerent
to make use of its ports or waters as the base of naval
operations against the other, or for the purpose of the
renewal or augmentation of military supplies or arms,
or the recruitment of men.
“ Thirdly, to exercise due diligence in its own ports
and waters, and, as to ail persons within its jurisdic-﻿NE U TR A LIT V.
272
tion, to prevent any violation of the foregoing obliga-
tions and duties.”
The tribunal was directed by the terms of the
treaty to “ détermine as to each vessel separately
whether Great Britain has, by any act or omission,
failed to fulfill any of the duties set forth in the fore-
going 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 tribunal shall find that Great Britain has
failed to fulfill 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
ail the daims 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 treaty having been duly ratified by England and
the United States, the tribunal was constituted as
follows :—
The Queen of England appointed Sir Alexander
Cockburn,Lord Chief-Justice of the Court of the Queen’s
bench ; the President of the United States appointed
Charles Francis Adams, ex-Minister to England ; the
King of Italy appointed Count Sclopis, Senator of
Italy ; the President of Switzerland named Jacques
Staempfli, ex-President of that confédération ; and
the Emperor of Brazil named Baron d'Itajuba, Min-
ister of Brazil at Paris.
The tribunal met at Geneva in December, 1871, and
in conséquence of a daim for indirect damages made
by the United States, which Great Britain was unwill-
ing should be even considered, it seemed likely for a﻿DECISION OF THE TRIBUNAL.
273
time that the arbitration would be abandoned by Great
Britain.
In June, 1872, however, the tribunal decided that
the daims for indirect damages should not be enter-
tained, and on the i4th of September following, the
decision of the arbitrators was formally reached.
The tribunal declared that Great Britain had failed
to fulfill its duties, as specified by the rules laid down
in the treaty, in reference to the Alabama, Florida, and
their tenders, and in regard to the Shenandoah after her
departure from Melbourne in February, 1865. A sum,
in gross, of $15,500,000, in gold, was awarded to the
United States, based on actual losses of vessels and
goods sustained from these three Confederate vessels.
The decision of the Tjeneva tribunal is, of course,
not binding in cases that may arise hereafter. As a
precedent, however, it is of the greatest value, and will
go very far towards securing the general adoption of
the principle of exempting ail private property, ex-
cept contraband of war, from capture
The principle.s of neutrality on the sea, as recognized
and more or less fully sanctioned by présent practice,
may be stated as follows :—
1.	The inviolability of neutral goods under the
enemy’s flag, and vice versa ;
2.	The abolition of privateering ;
3.	The prohibition of “ paper blockades ; ”
4.	The more précisé énumération of the articles con-
stituting contraband of war ;
5.	The more strict discharge of the duties which
neutrality imposes ;
6.	The complété freedom of private property on the
sea, demanded by the représentatives of commerce, and
sustained on three occasions by Austria and Prussia.﻿274
NEUTRALITY.
SECTION II.—GENERAL PRINCIPLES OF NE U-
TRALITY; AND DUTIES OF NE U TR ALS.
The term natural neutrality may be used to express
that complété abstinence from interférence, and with-
holding of aid which ought to mark the conduct of a
non-combatant State with regard to other States en-
gaged in war.
Conventional neutrality is that of which the terms,
conditions, and limits are specified in reciprocal inter-
national engagements.
The territory of the Swiss confédération has been
made neutraï by treaty stipulations dating back in the
first instance to the peace of Westphalia, in 1648 ; and
this conventional neutrality has only been violated dur-
ing the wars of the French Révolution and the First
Empire.
The cession of the provinces of Nice and Savoy by
Italy to France, in 1860, gave rise to appréhensions re-
garding Swiss neutrality, since a part of the territory
of Savoy, lying on the Southern side of Lake Geneva,
had long shared in the neutral status of Switzerland.
The matter was, however, satisfactorily adjusted by
the insertion of a provision in the treaty of cession,
that the neutrality of these portions of Savoy, secured
in 1815, should continue.
The neutrality imposed on Belgium is similar to that
enjoyed by Switzerland, and has continued without in-
terruption since 1815.
The grand-duchy of Luxemburg was declared neu-
tral territory by an international conférence held in
London, in 1867, with the concurrence of Austria,
France, Holland, Great Britain, Italy, Prussia, and
Russia.﻿DU TI ES O F NE U TFA LS,.
275
It has sometimes happened that belligerent powers,
about to wage wai with each other, hâve agreed to
limit the theatre of hostile operations to certain por-
tions of their dominions, securing neutrality to ail the
rest.
This has been done by nations possessing colonies,
the seat of war being sometimes in the colonies, and at
other times in the mother country.
This localization of hostilities may occur even with-
out any treaty stipulations, as was the case in the war
of 1863-4 between Germany and Denmark.
Since the beginning of this century it has been
usual, at the breaking out of war, for the belligerents
to issue proclamations declaring what privilèges will be
accorded to neutral nations, and what duties they will
be expected to perform in return ; neutrals on their
part hâve usually made proclamation as to the policy
they would pursue and the rights they should assert.
The generally accepted duties of neutrals are :—Not
to take part in hostilities; to furnish neither arms,
munitions, military supplies, nor subsidies to either of
the belligerents; to respect the ports and cities that
are the seats of strategie operations; to prohibit their
subjects or citizens from taking any part whatsoever
in the struggle, and to forbid the admission and sale
of prizes taken by the belligerents within their terri-
tory This last rule may be relaxed only in cases where
vessels are forced to seek temporary refuge on account
of damage or the giving out of provisions.
The cardinal principle of neutrality is impartiality.
“A neutral,” says Bynkershoek, “ has nothing to do
with the justice or injustice of war; it does not belong
to him to hold the balance between his friends who
are at war, giving or refusing more or less to the one﻿NEUTRAL/T Y.
276
or the other, according to his idea of the justice or in-
justice of their respective causes.,,
Klüber also holds the opinion that a neutral state
has no right to assume to judge between belligerents.
Wheaton regards the neutral as the common friend
of the contesting parties: consequently, he is estopped
from favoring one to the détriment of the other.
Actual impartiality consists in refusing helptoeither
combatant, and not in affording it to both in equai
measure.
Phillimore makes a just distinction on this point
when he says:—A nation which furnishes aid to both
parties in men or money mav be impartial, but she is
not neutral.”
A neutral state should not only abstain from furnish-
ing men and vessels-of-war to either belligerent; it
ought also to prevent its citizens from taking part in
the hostilities by joining either army or accepting let-
ters of marque. And should citizens of a neutral join
the hostile forces without the sanction of their govern-
ment, they lose by that act the rights of neutral sub-
jects, and make themselves liable to be treated as
enemies.
No state, and much more no belligerent state, has
the right to raise troops on neutral territory.
This rule has not, however, been insisted on uni-
versally in modem times, and certain States, notably
Switzerland, permitted, not very many years ago, the
enrollment of their citizens as mercenaries in foreign
armies.
This practice is, at the présent day, entirely done
away with; English and American law being especially
explicit on the subject.
In the year 1870 a gieat number of Germans, domi-﻿NEUTRALS SUPPL YING BELLIGERENTS. 277
ciled in the United States, having been enrolled in the
landwher of the North German confédération, took
passage from New York in English steamers for Ant-
werp, with the purpose of taking part in the war their
country was waging against France.
This proceeding, however, involved neither the
United States nor the consuls of Germany in any vio-
lation of international or territorial law, for a section
of the act of 1810 makes provision for such cases.
The neutral vessels, on the other hand, committéd
a plain breach of neutrality, and exposed themselves to
capture by French cruisers, for they had on board en-
rolled soldiers, betaking themselves to the seat of war.
What has been said as to raising troops, applies
with equal force to the fitting out of vessels in neutral
ports for the service of a belligerent.
The neutral State is bound to exercise the most rigor-
ous surveillance possible in such cases. To consti-
tute an offence, moreover. it is not essential that the
armament of the vessel should be complété ; proof of
an intention to fit out such a vessel affords ample
ground for action.
Neutrals are bound to abstain from furnishing arms
or other materials of war to either belligerent.
This rule, however, does not prevent the exportation
of arms; etc., by private individuals, at their own risk.
Such goods are, of course, liable to capture as contra-
band of war
The same rule applies to pecuniary assistance.
Governments must not give it ; individuals may, at
their own risk, lend money to belligerent powers.
The sale of provisions to belligerents is not consid-
ered a breach of neutrality, provided aJl parties are
made equally free to purchase in the neutral country.﻿2 7»
NEUTRALITY.
One of the most firmly-grounded rules of interna-
tional law is that which forbids a neutral nation to
allow the forces of a belligerent power to form a base
of operations within the limits of its territory. In case
however, the troops of a foreign power engaged in war
are found on neutral ground, they should be humanely
treated. They may, of course, be disarmed, and re-
quired to remove to the interior of the country, so as to
be practically unable to return to the seat of war. It
is no breach of neutrality to afford them provisions
and shelter. Neither precept nor practice are uni-
form as to the ultimate disposition of the military
refugees. Some writers maintain that they should be
held by the neutral power until the end of the war.
Others hold that they should be returned to their own
country at some point as far as possible removed from
the seat of war.
I.i the month of January, 1871, a numerous army,
still under discipline, entered Switzerland, and asked
the hospitality of that country. This request was
made the subject of a formai agreement between the
French General Clinchant and the Swiss General
Herzog. Admission to Switzerland was freely accorded
to the French “Army of the East,” on condition of its
abandoning its artillery, arms, equipments, and muni-
tions, which were to be restored to France at the end
of the war, on the payment of the expenses incurred
* by Switzerland. Provision and baggage wagons were
allowed to return to France empty ; those carrying
money or the mails were handed over to the confédé-
ration, to be accounted for.
This convention, fully sanctioned by France, forms a
most important precedent in récognition of the right of
a neutral State not only to demand reimbursement for﻿INDIVIDUAL NEUTRALITY.
279
expenses incurred on account of military refugees, but to
exercise a jus retentionis over their material of war.
Belgium was made a place of refuge by many sol-
diers from both parties to the war of 1870-71, her
course being somewhat different from that of Switzer-
land. She made no charge for expenses incurred, and
returned ail material of war falling into her hands.
She required ail military fugitives to remain within
her territory until the close of the war, including the
sick and wounded, whom she had cared for with great
courtesy.
When the laws of neutrality are violated by a neutral
State, the belligerent whose interests hâve been disre-
garded may demand réparation, even going so far under
certain circumstances as to constitute a casus belli.
Acts of individuals, which, in themselves considered,
would constitute violations of neutrality, are not to be
taken a. involving the State of which they are citizens, so
long as the government is strictly neutral in its policy.
In order to perform its whole duty in this regard, a
neutral government ought to maintain a sufficient force
on land and sea to prevent even individual violations
of neutrality, or at least to make them very rare
exceptions.
The inability of a State to maintain its neutrality
does not legitimatize the violation of its territory by a
belligerent. Forced violations of neutrality should be
condemned and punished by ail nations, in the interest
of international justice.
SECTION ///.— THE RIGHTS O F NE U TR A LS.
The rights of neutrals may be divided into (1.) those
concerning inviolability of territory; (2.) those concern-﻿280
NE U TR A LIT K.
ing the use of neutral ground as a place of refuge ;
and (3.) those which hâve to do with commerce.
Publicists are agreed that the territory of a nation
constitutes a right of property which no person may
enter without the consent, tacit or express, of the legi-
timate proprietor. Hence neutral territory ought to be
protected from ail occupation whatsoever by belliger-
ents. Neutrals hâve an unquestionable right to
oppose, even by force of arms, any attempt of
a belligerent power to make use of their territory.
The transit of prisoners of war or of booty across
neutral territory, evcn with permission, should be
counted a violation of neutrality.
Transit by water is governed by similar principles,
with such modifications as naturally spring from the
nature of the element on which the transit is made.
In October, 1864, the Confederate privateer Florida
and the United States gunboat Wachusett found them-
selves at anchor in the neutral port of Bahia.
Regardless of orders from the local authorities, the
Wachusett attacked and captured the Florida.
The act was at once recognized as a violation of
neutrality by the American Minister to Brazil, and in
due time réparation was offered to Brazil by the
United States, in the suspension and trial by court-
martial of Captain Collins of the Wachusett, the recall
of the consul of the United States at Bahia, the libéra-
tion of the crew of the Florida, and a salute of honor
to the Brazilian flag ; a vessel being ordered to Bahia
to give this salute, after formai notice to the local au-
thorities that it was designed as an apology for the of-
fence of the Wachusett.
The right of asylum must be distinguished from the
simple right of refuge. The latter rests on a plain﻿RIGHT OF ASYLUM.
28l
duty of humanity. and may be claimed by belligerents
in neutral ports, and even in the ports of the enemy,
when occasions of great péril or distress arise. The
right of asylum, as appertaining to international law, is
a conséquent of independence and national sover-
eignty. Each nation may, of course, lay down such ré-
gulations as it pleases with regard to the enjoyment of
the right by the vessels of other nations ; perfect im-
partiality must, however, be shown in order to avoid a
breach of neutrality.
The enjoyment of this right by naval forces in fuller
degree than by land forces is due to the fact, alluded
to earlier in this work, that a national vessel enjoys
the right of exterritoriality, its decks being considered
as a part of the territory of the nation under whose
authority it sails.
Early in the course of the recent civil war in the
United States, the English Government issued an
order that neither belligerent should be allowed to
bring prizes into an English port.
This action was modified, in conséquence of remon-
strances from Washington, so as to allow the war-
vessels and cruisers of either belligerent to tarry
twenty-four hours in any English port ; this period
not to be extended except in cases of tempest, damage,
or lack of provisions. No more provisions or coal were
to be taken on board than were needed to enable the
vessel to make the nearest port of its own country.
These régulations, which were enforced by England
duringthe Franco-German war, hâve reduced the right
of asylum to a mere right of refuge. This may seem
rigorous practice, but appears just, in view of the exist-
ing methods of naval warfare.
It is customary to limit by treaty stipulation the﻿282
NEUTRALITY.
number of war-vessels that may remain in a neutial
port at one time, and to prescribe explicit régulations
for the conduct of such vessels while in port.
Privateers, as a rule, are placed under greater re-
strictions in neutral ports than ships-of-war, their re-
sponsibility being less, and their mission, that of prey-
ing on commerce for purpose of gain, being less hon-
orable. Certain States hâve refused.them the right of
asylum, according only a very limited right of refuge.
Neutral States are free to admit the merchant-ships
of belligerent powers without restriction ; but neutral-
ity requires them to exercise such supervision over their
departure as shall prevent any partiality in the shipment
of contraband of war.
Prisoners of war landed in neutral ports regain their
liberty from the moment of their touching neutral soil.
This rule, although not sanctioned by any treaty, has
the support of universal practice.
The occurrence of hostilities between two nations
does not suspend commerce between such nations and
neutral States. The latter are free to carry on trade, in
time of war, with one or both belligerents, under the
following restrictions :—i. Avoidance of taking any part
in hostilities, even indirectly ; 2. The observance of en-
tire impartiality with regard to the belligerents ;
3. Avoidance of any attempt to enter blockaded ports.
We hâve already discussed at some length the prin-
ciple, sustained by the Congress of Paris of 1856, that
“ the neutral flag covers enemÿs goods, excepting contra-
band of warf and need only allude in this connection,
to the fact of general acquiescence in this rule by the
maritime powers, and of increasing favor accorded to
the principle that “ neutral goodsy except contraband of
war, under the enemÿs flag are exempt from capture P﻿NE U TR AL SHIPS AS COASTERS.	283
The right of anation to forbid foreign ships to engage
in the coasting trade, includes the power to pre-
vent such trade. Hence in time of war it has
been common for belligerents to authorize neutrals
to engage in coasting, thereby placing their coastwise
commerce under the protection of a neutral flag.
This practice has by no means been universal, or
uniform ; but has varied from time to time even in the
same country.
SECTION IV.—CONTRAT AND OF WAR.
The term contraband of war is understood as in-
cluding such things as are of use in carrying on war ;
their transportation by neutrals being considered an
unlawful act.
Roman law inflicted capital punishment on those
who sold arms to barbarians, and in the time of the
crusades the popes forbade the Christians, under threat
of proscription, bunnum, to furnish arms, iron, or tim-
ber to the Saracens, going so far, even, as to authorize
the réduction to slavery of the offenders by those who
caught them in the act.
The idea of contraband of war did not become well
and fully defined until the epoch of the formation of
the great nationalises of Europe. The Hanseatic
League in certain cases forbade neutrals from carrying
on commerce with its enemies, and in other cases it
claimed as against belligerents the most complété free-
dom in commercial transactions, extending even to
articles traffic in which was understood to be pro-
hibited intime of war.
One of the earliest treaties which contained pro-
visions concerning contraband of war was concluded﻿NEUTRALITY.
284
between France and Spain in 1659. The commercial
treaty entered into by France, Spain, England, and
Holland, at Utrecht, in 1713, to which Venice and
Prussia became parties later, repeated the provisions
of the treaty of 1659, with some additions. During the
eighteenth century many other similar treaties were
concluded, in ail of which the articles declared to be
contraband were such as would be used directly in
carrying on war. Later treaties hâve very greatly ex-
tended the list of prohibitions. These do not, how-
ever, according to Hautefeuille, possess any value in
determining international law on the subject, since
nearly ail of them are based on conditions wholly
exceptional.
In 1794 and 1796, treaties were ratified between Eng-
land and the United States to settle difficulties which
had arisen in determining whether articles of food and
the like might be regarded as contraband of war.
In these it was provided that when such articles
were captured they should not be confiscated, but, on
the contrary, full and immédiate compensation should
be made to the owners.
This unusual proceeding grew out of the policy an-
nounced by England, in her war with France, of re-
ducing her enemy by famine, Vattel and Grotius being
cited as supporting such a course.
The American government combated this policy,
and it was finally abandoned as not sustained by the
majority of writers.
It is by no means an easy matter to reach an author-
itative conclusion as to what constitutes contraband of
war according to the law of nations, for the greatest
possible diversity appears among treaty and legislative
provisions.﻿CONTRA B A ND O F WAR.
285
We venture, however, to présent the foliowing classi-
fication as one which will, we believe, be generally
agreed to.
Articles of food can only be considered as con-
trabarid in cases of siégé and blockade.
Naval stores, which include timber, hemp, wool,
tar, iron, sheet-copper, pitch, rosin, etc., are properly
considered contraband,—although Hautefeuille and
some others urge that they should be regarded as free,
since they can only be made to serve hostile purposes
by the addition of much labor, without which they are
harmless. The same may be said of raw Materials
used in the manufacture of munitions of war, such as
saltpetre, brimstone, and charcoal.
Steam engines, which are now so important ÿi
transportation on land and sea, must undoubtedly be
placed in the list of contraband articles.
Beasts of burden and draught were formely
free, with the exception of horses ; but in our day,
trade in asses and mules is prohibited, as well as in
horses.
Arms and munitions of war, of whatever descrip-
tion, need hardly be mentioned, so obviously are they
contraband.
Very many articles of commerce may be used either
for pacifie or warlike purposes. With regard to these;
the question of their condemnation will dépend on
their destination. If such goods are destined to
great commercial centres, the presumption in favor of
their being designed for pacifie use would make them
free. The contrary would be true when such goods
were shipped to military ports, or ports in the near
vicinity of military or naval depots. Thus, in the
Crimean war, England maintained the right to confis-﻿286
NEUTRALITY.
cate coal found under a neutral flag in the vicinity of,
or destined for a Russian port.
The right to capture contraband of war being ad-
mitted, it becomes necessary to prescribe rules for its
exercise.
It is essential that goods properly coming within
the category of contraband of war should be shown
to hâve been shipped as suchy and with the under-
standing and intention that they were to aid a bellig-
erent in warlike operations, before they can be
condemned as lawful prize.
This condition being fulfilled, contraband goods are
subject to capture from the moment the voyage
begins.
t Certain writers hold that a change of destination
may free a vessel and its contraband cargo from cap-
ture. English, American, and French practice, how-
ever, takes account only of the évidences of destination
afïorded by the papers found on board at the time of
capture.
When neutral coasters are carrying contraband of
war, their cargoes are subject to capture.
Contraband goods shipped from one neutral port to
another are liable to seizure and condemnation when
it appears that their ultimate destination is such as to
put them into the hands of a belligerent with whom the
government is at war.
In earlier times it was customary to condemn the
vessel which carried contraband of war, but modem
practice calls for this only in certain cases, which are
stated by Phillimore as follows:—
1.	When the vessel belongs to the owner of the cargo.
2.	When the shipper has endeavored to conceal the
actual destination.﻿CASE OF THE SPRINGBOK.
287
3	When the contraband has been carried with the
privity of the owner and in violation of a treaty.
4	A vessel may be confiscated on her return voy-
age, whèn déception has been resorted to on the out-
ward voyage.
5. A private vessel is forfeited by the contraband
traffic of an officer placed in command by the Board
of Admiralty.
Phillimore justifies the confiscation of the entire
cargo, consisting in part of contraband goods, when
the whole belongs to one and the same proprietor,
a doctrine sustained by the prize courts of England
and the United States.
Ortolan argues that the vessel and her entire cargo
may be confiscated in the following cases:—
“ When the contraband goods constitute three-quar-
ters of the cargo in value.
“When the vessel and the free goods belong to the
owner of the contraband.
“ When the shipment of the contraband goods is ac-
companied by circumstances of fraud, such as simulated
papers and false destination.
*' When the vessel belongs to an owner whose coun-
try îs under treaty stipulations with the country of the
captor to refrain from furnishing such articles to the
enemy.”
An interesting case of the capture of contraband
goods shipped from one neutral port to another, but
intended to be reshipped to a blockaded port, is that'
of the Springbok, an English barque, sailing from Liver-
pool to Nassau. The United States District Court,
sitting at New York, condemned both vessel and cargo
The Suprême Court confirmed the condemnation of﻿288
NEUTRALITY.
the cargo, but restored the vessel to its owners without
costs or damages.
The case was brought before the commission organ-
ized under the treaty of Washington, of May, 1871; it
involved daims exceeding the amount of three hundred
and sixty thousand dollars.
The claimants urged the absence of proof that the
cargo of the vessel was destined to any of the block-
aded ports of the United States, and maintained that
it was to be sold in open market at Nassau. On the
part of the captors it was argued by Hon. Robert
S. Haie, agent and counsel for the United States,
“That by the evidence adduced before the com-
mission the fact was fully established that ail the
claimants of the cargo were extensively engaged in
running the blockade, and also in furnishing military
supplies to the enemy; that the facts thus proved went
strongly to confirm the conclusions of the court that
the cargo was destined and intended for trans-shipment
to and delivery in the Confederate States, and not for
a market at Nassau.”
The commission unanimously disallowed the claim
for the cargo, but allowed damages for the détention
of the vessel up to the time of the decision of the Su-
prême Court restoring her to her owners.
An important question arises concerning the fitting
ouUand sale, in a neutral country, of ships designed to
be used for war purposes by governments actually en-
gaged in hostilities.
Of the right to confiscate such vessels when cap-
tured there can be no doubt. But when the vessel is
built for or sold to an individual, and not to a govern-
ment agent, while it may still be captured, no claims﻿CARRYING CONTRABAND.	289
for indemnity can be brought against the neutral coun-
try by the government of the captor.
The case is different when vessels are built for or
sold to a belligerent government.
The British foreign enlistment acts of 1819 and
1870 forbid most explicitly the construction, fitting
out, or sale in British ports, of vessels-of-war to bel-
ligerent governments. This policy is based, how-
ever, on English local law, the British government
always claiming its right from an international stand-
point, to allow its subjects to trade in contraband of
war.
Jouffroy, Ortolan, and Gessner include ships-of-war
as contraband; Mosely goes further, claiming that even
merchant-ships must be regarded as contraband under
certain circumstances; Heffter is still more radical,
arguing that even the construction of merchant-ves-
sels for the enemy is a hostile act.
The transportation of troops in neutral vessels is
prohibited by the laws of neutrality, being similar
to the carrying of contraband of war.
Numerous treaties hâve forbidden it; and the rule of
confiscation is generally admitted as applying to ves-
sels engaged in such service, the men transported be-
coming prisoners of war.
War dispatches are considered as contraband.
But a vessel carrying such dispatches can be confis-
cated only when the vessel was chartered for the ex-
press purpose of carrying them.
The operation of this rule is suspended in regard to
regular mail-boats, and even when ordinary merchant-
vessels are employed to carry mail matter, their mas-
ters being of course ignorant of their contents.
At the beginning of the late civil war in America,﻿290
NE U TR A LIT K
the English, French, and Spanish governments issued
orders forbidding their subjects, respectively, to tran-
sport troops, dispatches, arms, provisions, and muni-
tions of war for either belligerent.
Early in the course of the war, the Confederate gov-
ernment accredited Messrs. J. M. Mason and John
Slidell as its diplomatie représentatives to the courts of
St. James and Paris respectively. These persons, with
their secretaries, succeeded in eluding the vigilance of
the United States blockading vessels, and making their
way to Cuba, embarked at Havana on the English
mail-steamer Trent, bound for Nassau and Southamp-
ton. Shortly before reaching Nassau the Trent was
overhauled by the United States gunboat San Jacinto,
commanded by Captain Wilkes.
Regardless of the protests made by the captain of
the Trent, Captain Wilkes took possession of Messrs.
Mason and Slidell, with their secretaries, allowing the
Trent to proceed on her voyage.
The British Government was not slow in calling the
United States to account for this violation of the dig-
nity of her flag, and in demanding the libération of
the prisoners, with a suitable apology.
Mr. Seward, the American Secretary of State, under-
took to justify in a general way the capture of diplo-
matie agents with their dispatches as contraband of
war, but admitted that Captain Wilkes had acted with-
out instructions from his government, and that his
course had been irregular in not taking the Trent into
some port where the question of the capture might
hâve been - duly discussed and adjudicated before a
prize court.
Mr. Seward further admitted that the course pursued
by Captain Wilkes was not in accord with the old and﻿THE AFFAIR OF THE TRENT
29I
settled policy of the United States, as announced by
Madison in 1804, never to allow the captor of contra-
band of war to act in a judicial capacity,but requiring him
invariably to bring his prize before a competent court.
In view of these considérations, and the relatively
little conséquence of the prisoners, the United States
government ordered the rebel emissaries to be placed
at the disposition of the British government.
The English minister at Washington, Lord Lyons,
expressed the satisfaction of his government with the
action of the United States, but took occasion to
présent the opinions of the British Cabinet on the points
made by Mr. Seward, in a somewhat lengthy paper
from Lord Russell.
Lord Russell combated the view of Mr. Seward that
the rebel emissaries and their dispatches constituted
contraband of war, maintaining that the most absolute
neutrality allowed free diplomatie communication be-
tween either belligerent and neutral governments.
The point was also made in the English dispatch,
that even contraband of wai*was not subject to seizure
on a bona fide voyage from one neutral port to another,
but only when there was reason to suspect misrepre-
sentation as to the actual destination, which certainly
was not the case with the Trent.
Lord Russell also called attention to the fact that
regular mail-boats, in the discharge of their ordinary
functions of transporting mails and passengers, were
understood to be exempt from such interférence as was
offered in the case of the Trent, and showed that, on
the ground assumed by Mr. Seward, a Dover and
Calais mail-boat might be captured and taken to New
York, and a Cunard steamer plying between Halifax
and Liverpool might be captured by a rebel cruiser.﻿292
NEUTRALITY.
“The affair of the Trent,” says Woolsey, “bas been
of use to the world by committing Great Britain to the
side of neutral rights upon the seas.”
The judgment of the world is unquestionably against
the propriety of the seizure of the Confederate emis-
saries once embarked on a neutral vessel sailing from
one neutral port to another, and the présent spirit of
international law is in favor of personal freedom and
the inviolability of the neutral flag.
SECTION F—SIEGES ANE BLOCKADES.
Sieges and blockades are operations of war, on land
or sea, designed to close the avenues of entrance and
exit, or to secure the surrender of a city, fortress, or
port.
According to Halleck : “ A siégé is a military invest-
ment of a place so as to intercept, or render danger-
ous, ail communications between the occupants and
persons outside the besieging army ; and the place is
blockaded when such communication by water is either
entirely eut off or rendered dangerous by the prés-
ence of the blockading squadron.” “ The object of
a blockade, ” says Duer, “ is solely to distress the
enemy, intercepting his commerce with neutral States.
It does not, generally, look to the surrender or réduction
of the blockaded ports, nor does it necessarily imply
the commission of hostilities against the inhabitants
of the place. The object of a military siégé is, on
the other hand, to reduce the place by capitulation, or
otherwise, into the possession of the besiegers.”
Naval blockade is understood to eut off ail entrance
to or exit from the closed port, whether of merchant
or war-vessels, except in cases when spécial permission﻿EFFECTIVE BLOCKADE.	293
to trade may hâve been accorded by the blockading
power.
A blockade, in order to command the respect of
neutrais, must be effective : that is to say, the belliger-
ent who déclarés the blockade must place a sufficient
force at the blockaded points to make him master of
them.
With regard to what constitutes an effective blockade,
some différence of opinion exists ; but in general it
may be said that a force sufficient to make the passage
to or from the closed port clearly dangerous is ail that
is required. Certain treaties hâve stipulated that a
certain number of vessels are necessary to an effective
blockade. This, however, cannot be generally ap-
plied, since great différences exist as to the ease with
which different ports may be closed.
The blockading force may consist of land batteries
as well as of war-vessels or floating batteries. And if
the forces afloat be driven off temporarily by stress of
weather, the efficacy of the blockade is not thereby
affected.
Proper notification is essential to the validity of a
blockade. There are three sorts of notification.
First, when the commander of a blockading force
gives notice to the authorities of the locality whose
communications with the sea he is about to eut off :
this is a preliminary rigorously insisted on, the omis-
sion of which renders captures made of vessels leav-
ing the port absolutely of no effeot. The second form
of notification is what is called general or diplomatie,
and is communicated to neutral governments. The
third form, termed spécial, is the notice given by the
blockade commander to vessels approaching the limits
of the blockade.﻿294
NE U TR AL! T y.
The English courts of admiralty hold that the diplo-
matie notification of a blockade is sufficient, and that
the blockading forces are not called upon to give
spécial notices.
France, on the other hand, holds rigidly to the prin-
ciple that the general notification must be followed in
every instance by spécial notices to the neutrals who ap-
proach the limits of the blockade.
American jurisprudence on this point does not appear
to be determined with précision.
While the earlier text writers incline to the English
practice, the treaties and régulations of the United
States Government are more in accord with the rule
followed by France.
Woolsey says, “ The best notice is, when a vessel ap-
proaching a port, or attempting to enter it, is warned
off by a ship pertaining to the blockading squadron.”
The orders issued by President Lincoln, on the igth
of April, 1861, laid down the following provision :—
“ If, therefore, with a view to violate such blockade,
a vessel shall approach or shall attempt to leâve any
of the said ports, she will be duly warned by the com-
mander of the blockading vessels, who will endorse
on her register the fact and date of such warning.”
The general or diplomatie notification is usually given
in the form of a written communication addressed by
the belligerent to neutral States, specifymg the date
from which the blockade will be in force, and the lo-
calities which it will embrace. These notices are usual-
ly made public through the newspapers, and some-
times nothing more is given than a general notice in the
newspapers.
It is customary to allow sufficient time for the de-
parture of vessels lying in ports about to be blockaded.﻿DURATION OF B LOCK A DE.	295
Since a blockade to be valid must be effective, it is
at an end from the moment it is no longer effective :
in other words, it begins with the investment of the
bloctaded place, continues so long as the investment
is maintained, and ceases when the investing forces are
withdrawn or so reduced in strength as to be insuffi-
cient.
In cases where the blockading forces are tempora-
rily withdrawn, opinions differ as to whether their re-
turn is to be looked upon as a continuance of the old
blockade or the establishment of a new one, of which
due notice must be given before it can be regarded as
valid.
Halleck argues that an ‘‘accidentai removal ci
blockading force, if it be only for a very short time,
does not suspend the legal operation of the blockade.
An attempt to take advantage of such an accidentai
removal is regarded as a fraudulent attempt to break
the blockade. But if the blockading force should be
so scattered or injured by the storm as to be unable
to résumé their stations without repairs, and within
a reasonable time, the blockade will be considered as
terminated, in the same manner as if the blockading
squadron had been driven away by a superior force of
the enemy.”
When a blockading squadron is compelled by the
enemy to retire, the blockade is considered as raised,
and if it be renewed, ail the formalities attending the
original imposition of the blockade must be complied
with to make it valid.
The same effect is produced when a blockading
squadron leaves its station to perform other duty, or
so much of the force is withdrawn as to render what
remains insufficient to maintain the blockade.﻿NEUTRALITY.
296
Irregularity in the maintenance of a blockade,
such as the admission of certain vessels by favor, des-
troys its validity ; such irregularity must, however, be
more than exceptional.
From the moment of the legal establishment of a
blockade, any neutral vessel which attempts to disre-
gard the prohibition against commerce with the block-
aded place, violâtes the law of nations, and subjects
itself to be treated as an enemy by the belligerent
maintaining the blockade.
In cases where there is reason to suppose the com-
mander of a vessel approaching a line of blockade
has nad knowledge of the establishment of the block-
ade, though he may assume ignorance in the matter,
it is necessary that there should be some proof that he
had this knowledge before his vessel can be made a
prize on its first approach : mere presumption is not
sufficient.
Many publicists maintain tjiat the mere fact of a ves-
sel setting out on a voyage to a blockaded port,
knowing it to be closed, does not constitute an attempt
to violate the blockade. This view, however, has
not been sustained by the English government, nor by
that of the United States, admiralty courts in both
countries having generally ruled that the inception of
a voyage with a knowledge of the blockade présup-
posés the intention to enter, and hence subjects the
vessel to capture.
The enforçement of this rule has not been insisted
on in trans-Atlantic or other distant voyages, since it
is supposable that the intention to enter may hâve been
subject to the proviso that on arriving at the block-
aded port it might be found no longer closed : it
being reasonable to suppose that during a voyage of﻿VIOLA TION OL BLOCKADE.
297
several week s the e vents of war may be such as to
terminate a blockade existing when such voyage was
undertaken.
A vessel destined to another port, but approaching
a blockaded port and waiting for some favorable op-
portunity to enter, is regarded as violating the block-
ade in so doing, such a course giving clear evidence of
her intention to enter.
Sir William Scott and Chief-Justice Marshall argue
that in cases where the captain of a vessel, being duly
warned of the existence of a blockade, déclarés his in-
tention to continue his voyage and makes the slightest
movement in that direction, his vessel is de piano sub-
ject to capture. The action of American prize courts,
especially that of the Suprême Court of Pennsylvania,
furnishes, however, several instances where such décla-
rations on the part of sailing-masters were not re-
garded as constituting criminal offences.
A failure on the part of a vessel to change its course
immediately on receiving^notice of a blockade is re-
garded as an attempt to disregard the blockade.
In general, any neutral vessel puttting out from a
blockaded port is held to hâve violated the blockade.
Halleck regards this rule as too severe, and proposes cer-
tain exceptions. He would allow vessels to leave a block-
aded port under the followingconditions:—(i.) when the
ship is proved to hâve been in the blockaded port
when the blockade was laid, she may retire in ballast ;
(2.) when the ingress was from physical necessity ; (3.)
when the entrance was authorized by a license ; (4.)
when a neutral ship arriving at the entrance of a
blockaded port in ignorance of the blockade is suf-
fered to pass ; this does not, however, cover the cargo,
for its owners may be guilty of a criminal violation of﻿NEUTRALI1 y.
298
the blockade even when the ship is innocent ; (5.)
when the original cargo of a neutral vessel lawfully en-
tering the blockaded port has proved unsalable ; (6.)
when a neutral ship leaveswith the just expectation of
a war between her own country and that to which the
blockaded port belongs.
In early times belligerents not only seized the vessel
which violated a blockade, with everything found on
board, but even inflicted punishment on the persons
of the crew, sometimes putting them to death. Ac-
cording to Bynkershoek, this practice was continued
until towards the close of the seventeenth century.
The practice of modem times goes no further than
to authorize the confiscation of ail the property em-
ployed in violating the blockade.
The personal effects of passengers are exempted from
seizure, and under the practice of continental prize
courts, this exemption is extended to the officers and
men ccmposing the crew.
It is a matter of importance to détermine with pré-
cision at what time the capture of an offending vessel
may be legally effected.
“ To justify a capture for the violation of a blockade,”
says Duer, “or the attempt to violate it, the offence
must continue to exist at the time of seizure. *	*	*
The ship must be then in delicto. In cases where the
ship has violated the blockade by egress, the delictum
continues during her whole voyage, till she has reached
her final port of destination. But when a ship sails
for a blockaded port, with a knowledge of the blockade,
and the intention to violate it, the offence is so far com-
plété as to justify her immédiate capture; yet as it exists
only in an attempt, the delictum does not necessarily﻿CASE O F THE CIRCASSIAN.
299
continue during the whole of her subséquent voyage.
If, previous to her capture, the blockade had ceased to
exist, or the master, from the information of a ship-of-
war of the blockading State, had just grounds for be-
lieving that such was the fact, or had altered his des-
tination, with the intention of not proceeding at ail to
the blockaded port, the offence no longer exists, and
that which had existed is no longer punishable. To
constitute the offence, three circumstances must be
found to co-exist:—the fact of a blockade, the party’s
knowledge of its existence, and his intention to vio-
late it.”
The principle that a blockade terminâtes with the
capture of the blockaded port was discussed in the
case of the Circassian, a British steamer chartered at
Bordeaux “to force the blockade,” and taken by the
United States forces near the island of Cuba, on the
4th of May, 1862. Her ultimate destination was New
Orléans, although she was to touch at Havana.
The city of New Orléans was captured on the
29U1 of April by the land and naval forces of the
United States, and, in the considération of the case
before the Circuit and Suprême Courts of the United
States, as also before the Commission established under
the treaty of 1871, this event was held by the owners
of the vessel and cargo to hâve terminated the
blockade.
On the part of the captors it was urged that the
capture of the city did not amount to the capture of
the port, since the limits of the latter were much more
extended than those of the former. It was also argued
that the blockade was not terminated on the instant of
the capture, but that reasonable time should be al-
lowed for the occupation to become permanent.﻿300
NEUTRAL1TY.
On the i2th of May, two weeks after the capture, the
President issued a proclamation declaring that the
blockade of New Orléans would be at an end on the
ist of June, and this, it was urged by the United States,
was the actual termination of the blockade.
The Suprême Court, Justice Nelson dissenting, con-
firming the decision of the Circuit Court, sustained
these views, but the Mixed Commission, Judge Frazer
dissenting, held otherwise, and made awards to ail the
claimants.
If we rightly understand the main point of the ar-
gument against the United States, it was that on the
broad principles of international law, and in deference
to the rights of neutrals, the government had no riglit
to hold the blockade in force a moment beyond the ac-
tual capture and occupation of the place.
With ail respect to the majority of the Mixed Com-
mission, and to the learned counsel who argued the
case of the claimants, we find ourselves disposed to
hold that a belligerent, maintaining a blockade, es-
pecially in the case of civil war, should be allowed a
reasonable time after the capture of a blockaded port,
to establish and confirm his authority, before being
compelled to open the port to neutral trade. And in
the case of New Orléans, no speedier opening of the
port could hâve been asked than was accorded by the
government. In rendering the opinion of the Suprême
Court, Chief-Justice Chase made use of the following
forcible language:—
“ Now, it may be well enough conceded that a con-
tinuous and complété possession of the city and the
port and of the approaches from the gulf would make
a blockade unnecessary, and would supersede it. But
at the time of the capture of the Circassian there had﻿VISITA TION AND SEARCH.
301
been no such possession. Only the city was occupied,
not the port, much less the district of country com-
mercially dépendent upon it and blockaded by its block-
ade. Even the city had been occupied only three
days. It was yet hostile; the rebel army^was in the
neighborhood; the occupation, limited and recent, was
subject to ail the vicissitudes of war.”
SECTION VI.—THE RIGHT OF VISITA TION AND
SEARCH
It is not easy to name the précisé epoch at which
the right of visitation and search was definitely recog-
nized by the nations of Europe.
The Consolato del ma?'e speaks of it as already in
existence, and regards it as a right accessory to that of
capturing enemy’s goods and contraband of war. It
is on the same footing that we find it sanctioned by the
earliest maritime régulations of France and England ;
but only within the last two centuries has the scope
and manner of exercising the right been definitely de-
termined.
The treaty of the Pyrenees, concluded between France
and Spain in 1659, is one of the first international acts
undertaking to lay down spécifie rules for the exercise
of the right of search.
In this treaty the visiting vessel was forbidden to
iapproach nearer than a cannon-shot to the vessel about
to be searched ; not more than two or three men were
allowed to constitute the boarding party ; and regular
papers were to be taken in good faith.
Treaties between England and Holland, in 1674 and
1688, the treaties of Utrecht of 1713, a commercial
convention between France and Denmark, in 1742, and﻿302
NEUTRALJTY.
a treaty between England and Russia, in 1797, helped
to make the exercise of this right still more uniform
and more considerate of the interests of neutrals.
With regard to the right of search, authors differ
only as to some minor details concerning the manner
of its .exercise. As to its legitimacy, ail writers of
standing are agreed.
The belligerent should manifest his intention to
exercise the right of search by raising his flag, and
firing a gun; or he may make use of the speaking
trumpet. ' The neutral vessel is bound to lie to at
once, or it will be liable to be fired upon. When the
neutral vessel has lain to, the belligerent sends out
a small boat under command of an officer, who is
charged with the duty of making the visitation. Some-
times, however, the neutral captain is called upon to
report with his papers on board the visiting vessel.
Privateers who undertake to exercise the right of
search are required to exhibit their letters of marque.
War-vessels are, naturally, not subject to the right
of search.
In cases where the exercise of the right of search is
resisted, the visiting vessel is fuily authorized to use
force for the attainment of its object ; and résistance,
ipso facto, renders the vessel liable to capture and con-
demnation. The cargo is also liable to condemna-
tion if it belong to the owner of the vessel ; and
it is generally held, according to Halleck, that the ré-
sistance of search by a neutral master will insure the
penalty of confiscation of both vessel and cargo. Sir
William Scott maintains that résistance of search by
an enemy’s master does not forfeit neutral goods in
such enemÿs merchant-vessel; but that neutral goods
in an armed enemÿs vessel are liable to confiscation.﻿CONVOY;
303
American writers hâve generally concurred in this dis-
tinction, but the Suprême Court of the United States
has extended exemption in both cases.
The term convoy indicates the protection that is
sometimes given in time of war by naval vessels to
merchant-ships while pursuing their voyages. This
term is also applied to the protecting vessels, and to
those that are thus protected.
This custom originated in the middle âges, when it
was necessary for merchant-vessels to hâve protection
against freebooters, and was formally authorized in the
code of Wisby, the régulations of Enchuysen, and by
the Hanseatic league.
The right of convoy has been the subject of much
international discussion, England uniformly declining
to accord any general récognition of the right. Ail the
other maritime powers, including the United States,
now sustain the practice of exempting from search ail
merchant-vessels under convoy.
The withholding, concealment, or destruction of any
papers which are essential in determining the charac-
ter of the vessel or its cargo, involves the most serious
conséquences, always justifying the seizure of the
vessel and often its condemnation.
In the case of the Peterhoff, an English steamer
captured by the United States in February, 1863,
while making a voyage from Liverpool to Matamoras,
it was successfully urged before the Commission pro-
vided for, under the treaty of Washington, of 1871, that
“the spoliation of papers shown” debarred the claim-
ants from any award of costs or damages.
In the evidence it appeared that a package which﻿304
NE U TR A LIT Y.
had been deposited bv a passenger with the captain,
for safe-keeping, was thrown overboard by the order
of the captain on the boarding of the vessel by the
captors.
The exceptional condition of things which justifies
the exercise of the right of search by belligerents
ceasing to exist with the cessation of hostilities, it fol-
lows as a natural conséquence that this right cannot be
exercised in time of peace. When the war is over, there
are no belligerents and no neutrals ; each nation ré-
sumés its rights of sovereignty and independence ;
there is no more contraband of war, and no interest
in determining the character of ships’ cargoes : the
liberty of commerce and independence' of flag is no
longer subject to exception or restriction.
It is a fact, however, that certain nations hâve, by
treaty stipulations, authorized the exercise of the right
of search in time of peace, for the purpose of protect-
ing certain interests, notably to prevent the slave-
trade. But the end does not justify the means, and
expérience has proved, especially in regard to the
slave-trade, not only that the exercise of the right of
search was not necessary, but that it failed to accom-
plish the desired object.
England, firmly claiming the exercise of the right
of visit in time of peace, though standing alone in
this claim, has undertaken to set up a distinction
between the right of visit and of search.
Lord Aberdeen, in a note addressed to the American
Minister at London, in 1841, says :—“ The right
asserted (the right of visit) has in truth no resem-
blance to the right of search, either in principle or in
practice. It is simply a right to satisfy the party,
who has a legitimate interest in knowing the truth,﻿SE A R CH IN TIME OF PEAGE.	305
that the vessel actually is what her colors announce.”
The government of the United States maintained,
in answer to Great Britain, “that there is no right of
visiting a vessel, for the purpose of ascertaining its
nationality, and distinct from the right of search, known
to the law of nations ; that the right to visit, in order
to be effectuai, must in the end include search ; that
the right differs in no respect from the belligerent right
of search ; and that every case of détention of an
American vessel for this purpose is a wrong calling
for réparation. These views are set forth by Mr.
Webster, then Secretary of State, in a letter to the
ambassador of the United States at London.”*
With the exception of certain English writers, the
publicists of recent date are agreed in denying. the
right of search in time of peace, save that, as a mere
matter of naval police, war-vessels may search ships
bearing the flag of their own country, when there is
ground for suspicion that the flag is unlawfully car-
ried.
In the wars to which the French révolution gave
rise, the cabinet of London undertook to construe the
right of search as authorizing the seizure of British
seamen found on neutral vessels.
The claim of England in this regard is clearly stated
by Mr. Webster in a letter to Lord Ashburton in 1842
as follows :—
“England asserts the right of impressing British
subjects in time of war out of neutral ships, and of de-
ciding by her visiting officers, who, among the crews
of such merchant-ships, are British subjects. She
asserts this as a legal prérogative of the crown, which
prérogative is alleged to be founded on the English
* Woolsey.﻿NEUTRALITY.
306
law of perpétuai and indissoluble allegiance of the
subject, and his obligation under ail circumstances,
and for his whole life, to render military service
to the crown whenever required.”
The United States resisted this pretension with
energy, and it became, as is well known, one of the
causes of the war of 1812. The treaty of Ghent put
an end to this war, but left undecided the main ques-
tion which gave rise to the war.
The subject was discussed between the two govern-
ments during many years; and at one point of the con-
troversy, the following déclaration of the policy of the
United States was given by Mr. Webster, Secretary of
State, in 1842 :—
“ The American government is prepared to say that
the practice of impressing seamen from American ves-
sels, cannot, hereafter; be allowed to take place. That
practice is founded on principles which it does not re-
cognize, and is invariably attended by conséquences so
unjust, so injurious, and of such formidable magnitude,
as cannot be submitted to. In the early disputes be-
tween the two governments on this so long contested
topic, the distinguished person to whose hands were
first committed the seals of this department declared that
the simplest rule will be, that the vessel being Ameri-
can shall be evidence that the seamen on board are
such! Fifty years' expérience, the utter failure of
many negotiations, and a careful considération, now
had, of the whole subject, at a moment when the pas-
sions are laid, and no présent interest or emergency
exists to bias the judgment, hâve fully convinced
this government that this is not only the simplest and
best, but the only rule which can be adopted and ob-
served, consistently with the rights and honor of the﻿CASE OF THE VIRGIN IU S.
307
United States, and the security of their citizens.
That rule announces, therefore, what will hereafter be
the principle maintained by this government. In
every regularly documented American merchant-vessel,
the crew who navigate it will Jind their protection in the
flag which isover themF
The long controversy was finally terminated by the
announcement of the Earl of Malmesbury, British
minister of foreign affairs, in the House of Lords, on
the 26th of July, 1858, that, on receiving the unani-
mous opinion of the law officers of the crown, “ her Ma-
jesty’s government had at once acted, and we frankly
confessed that we had no legal claim to the right of
visit and search which has hitherto been assumed.
Her Majesty’s government hâve therefore abandoned
both these daims.”
The case of the Virginius présents several points of
interest as to the right of search.
In the autumn of 1873, while the Cuban revoit was
in progress, the Virginius, sailing under the United
States flag, and regarded for some time as a regularly-
documented vessel of the United States, was captured
on the high sea by the naval forces of Spain, after hav-
ing made an unsuccessful attempt to land a company of
insurrectionists in Cuba. There were one hundred and
fifty-five persons on board, more than one-third of whom
were executed at Havana within a few weeks after the
capture; nine of those put to death being American
citizens, and a larger number belonging to Great
Britain.
The United States government demanded répara-
tion for what was, at first, regarded as an outrage on
its citizens, and an indignity to its flag.
It appeared, however, later, that the Virginius was﻿NEUTRALITY.
308
not legally a United States vessel. Her owners were
Spanish, and a false oath was taken out by an Ameri-
can to secure her registry
Ex-President Woolsey défends the proceeding of
the Spanish vessel, and cites the opinion of Mr. George
T. Curtis in support of his view. Woolsey says, with
justice, that “the flag is no protection without a right
to use it, and every nation—for purposes of jurisdic-
tion over vessels of its subjects at sea, as well as for
other reasons—has a right to décidé by its ships of
war whether its own vessels are not wearing a foreign
flag.”
“ The following rules of international law,” says
Woolsey, “ are illustrated by the case of the Virginius.
“ 1. That the right of self-defence authorizes a na-
tion to visit and capture a vessel as well on the high
seas as in its own waters, when there is reasonable
ground to believe it to be engaged in a hostile expé-
dition against the territory of such nation.
“2. That a nation’s right of jurisdiction on the high
seas over vessels owned by its citizens or subjects, au-
thorizes the détention and capture of a vessel found
on the high seas, which upon reasonable ground is be-
lieved to be owned by its citizens or subjects, and to
be engaged in violating its laws. The flag or register
of another nation, if not properly belonging tô a ves-
sel, does not render its détention unlawful by the cruiser
of a nation to which its owners belong. As, how-
ever, the register affords primâ-facie evidenee of na-
tionality, the nation which gave the register by mis-
take must be treated with great care, détention on
grounds proved to be erroneous must be atoned for,
and the question of ownership would naturally be
committed, where the evidenee is not patent, to a third
party.”﻿MARITIME PRIZES.
309
SECTION VIL—MARITIME PRIZES.
The right to make captures at sea may be exer-
cised by ships-of-war, or by privateers, outside the
territorial limits of neutral States. Since the procla-
mation respecting the abolition of privateering by the
Congress of Paris, of 1856, the employmënt of priva-
teers in making captures of private property of the
enemy has become exceptional.
In strict law, vessels belonging to belligerent nations
should alone be made the subjects of capture ; but
certain circumstances, showing more or less complicity
with the enemy, often deprive a neutral vessel of its
pacifie character, and justify its trçatment as a party
to the strife.
The captured neutral vessel is, however, entitled to
be treated in a manner quite different from that to
which the captured belligerent may be subjected. Re-
specting the latter, the main question is that of identity,
the détermination of which involves little difficulty;
while in regard to the former, many délicate complica-
tions frequently arise, in the treatment of which the
neutral is entitled to the most careful considération.
According to the practice of the British prize-
courts, the act of taking possession is not indispensably
necessary to make a capture complété ; it is sufficient
that the vessel attacked should lower her colors, and
déclaré herself subject to the disposition of the
captor.
This principle is not sustained outside of England
—it being required elsewhere that the captor should
prove his intention to retain the prize he has seized.
Failing to do this, he is regarded as abandoning his
prize.﻿3io
NEUTRALITY.
As a principle of law, the title to ail maritime prizes—
is vested in the State ; and only as a matter of conces-
sion from the State can the parties effecting a capture
claim any ownership therein, local law settling ail the
conditions and reserves under which such ownership
must be confirmed.
Full ownership in a prize is only conferred by duly
authorized courts ; and in case of unwarranted cap-
ture, restoration to the owners, with costs and dam-
ages, has been the common practice. It has often
happened, moreover, that at the conclusion of a war,
belligerents hâve restored such captured vessels with
their cargoes as were then uncondemned by the prize-
courts.
The first duty of a captor is to draw up a procès verbal,
detailing the circumstances and reasons for the cap-
ture. He must add to this a detailed inventory of ail
the property seized, then close and seal the hatchways.
The captain of the prize is bound to examine and
sign the above mentioned papers.
After the conclusion of these formalities, the captor
mans the prize, placing on board an officer and sailors
taken from his own crew, who are charged with the
duty of taking the prize to some port where proceedings
before a prize-court can be legally had.
In general the captor is forbidden to scuttle or
burn his prize. In the absence of any impérative
necessity of war to prevent, the captor is bound to
bring his prize with the least possible delay within the
limits of a court competent to adjudicate upon it.
Under certain circumstances, the right to destroy a
prize is conceded by some writers. Among them we may
cite Chancellor Kent, who says :—“ Sometimes circum-
stances will not permit property captured at sea to be﻿DUTIES OF CAP TORS.
311
sent into port: and the captor, in such cases, may
either destroy it or permit the original owner to ransom
it.”
Bluntschli, on the other side, urges that, “One is
never authorized to destroy a captured vessel under
the plea that the ports of the country to which the
captor belongs are blockaded. *	*	* The destruc-
tion of a captured vessel is only justifiable in case of
absolute necessity.”
An interesting case occurred in the recent Franco-
German war.
Two vessels bearing the German flag, the Ludwig
and the Vorwarts were captured and burned on the
21 st of October, 1870, by the commander of the ship-
of-war Dessaix.
The Dessaix had on board a large number of prison-
ers of war and the commander deemed it unsafe to re-
duce his force for the purpose of manning the Ludwig
and the Vorwarts.
The case was first tried before the prize-court of
Bordeaux, and then appealed to the Conseil d' État.
Both tribunals justified the burning of the German ves-
sels as an act of war, and allowed no indemnity to the
owners of ships or cargoes.
The validity of maritime captures must be deter-
mined by the proper tribunals of the country to which
the captor belongs. For only in this manner can
proper responsibility be placed upon the government
under whose authority the capture may hâve been ef-
fected, and only thus can the decisions in such cases
be effective.
The Suprême Court of the United States has made
the following noteworthy déclaration on the subject
now under considération:—﻿312
NEUTRALITY.
“ A neutral nation which knows its duty will not in-
terfère between belligerents, so as to obstruct them in
the exercise of their undoubted right to judge, through
the medium of their own courts, of the validity of
every capture made under their respective commissions,
and to décidé on every question of prize law which
may arise in the progress of such discussion. But it is
no departure from this obligation, if, in a case in which
a captured vessel be brought, or voluntarily cornes infra
præsidia, the neutral nation extends its examination so
far as to ascertain whether a trespass has been com-
mitted on its own neutrality by the vessel which has
made the capture. So long as a nation does not in-
terfère in the war, but professes an exact impartiality
tDwards both parties, it is its duty, as vell as right, and
its safety, good faith, and honor demand of it, to be
vigilant in preventing its neutrality from being abused
for the purpose of hostility against either of them.
*	*	* In the performance of this duty, ail the bel-
ligerents must be supposed to hâve an equal interest;
and a disregard, or neglect of it, would inevitably ex-
pose a neutral nation to the charge of insincerity, and
to the just dissatisfaction and complaints of the bel-
ligerent, the property of whose subjects should not,
under such circumstances, be restored.’,
A véry important différence exists between ordinary
courts, proceeding under the civil or criminal laws of
the State which has established them, and those insti-
tuted by sovereign authority to apply the rules of inter-
national law to foreigners and citizens.
“The ordinary municipal tribunals,” says Wheaton,
“acquire jurisdiction over the person or property of a
foreigner by his consent, either expressed by his volun-
tarily bringing the suit, or implied by the fact of his﻿PRIZE- CO U R rs.
313
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 these tribunals are constituted. 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 na-
tions would, on principle, seem to forbid the exercise
of a jurisdiction thus acquired by force and violence,
and administered by tribunals which cannot be impar-
tial between the litigating parties, because created by
the sovereign of the one to judge the other. Such,
however, is the actual constitution of the tribunals, in
which, by the positive international law, is vested the
exclusive jurisdiction of prizes taken in war.”
In England, since the year 1740, the courts of ad-
miraltyhave been authorized to adjudicate prize cases,
spécial authorization, under the royal seal, being
given in each instance ; the duration of such authority
being limited to a single war. Appeals may be taken
from these courts to the Privy Council of the crown,
which hears and détermines such cases only through
its judicial committee.
In France, since the Crimean war, prize cases hâve
been brought before a spécial tribunal, le Conseil des
Prises, from which appeals may be made to the Coun-
cil of State—Conseil (TÉtat.
The fîrst prize-court in Prussia was established in
1854. It consisted of a president-judge, six associate
judges, and a spécial attorney-general, ail appointed by
the king. The law under which this court was consti-
tuted provides that its existence shall terminate with﻿3H
NEUTRALITY.
the conclusion of the cases arising during the war
for which it was created, a new court to be constituted
at the beginning of each war in which the country may
be involved.
The constitution and laws of the United States
confer power to act in prize cases only on the Fédéral
District Courts, with ultimate appeal to the Suprême
Court.
While writers are generally agreed that captures
from the enemy are to be brought only before the
courts of the captor, a decided différence of opinion
exists as to captures of neutral vessels.
Some writers hâve urged that such cases should be
referred to a neutral sovereign ; others that they
should be made the subject of diplomatie negotiations,
or submitted to mixed commissioners.
Others again, especially English authorities, hold
that prize-courts are actually international tribunals ;
that while they sit under the authority of a single na-
tion, they are open to ail, and that they are governed
by the law of nations, and not by municipal law, They
are, moreover, bound to render decisions so fully in
accord with the known and settled principles of inter-
national law as to command the respect of ail. On the
other hand, it is complained that in spite of the excel-
lent principles of their jurists and publicists, the decis-
ions of the English prize-courts hâve often called forth
earnest protest?.
Wheaton and Kent hold that a prize-court may sit
in the territory of an ally.
England goes so far as to authorize a consul to con-
dernn in the port of an ally.
A prize-court cannot sit in neutral territory, nor
can any court in such territory accept a commission﻿y U RI SD IC TI ON O F PRIZE- CO U R T S.	315
to act for a belligerent in prize cases. Such court
may, however, sit in conquered territory, subject to the
laws of the country of the conqueror.
The ordinary jurisdiction of the English Admiralty
extends to prizes made on the high seas, as well as to
those effected by naval forces, either alone or assisted
by land forces, in foreign ports, rivers, harbors, or other
places occupied by the military power of the captor ;
and to seizures, reprisais, and embargoes consummated
at the opening of hostilities. It also includes ail ques-
tions accessory or incident to captures, such as con-
cern freights, damages, costs, torts, personal injuries,
abuse of power, and the like.
English law gives prize-courts no jurisdiction over
captures made exclusively by land forces. These are
disposed of in the ordinary tribunals.
United States law has not settled this point definitely,
the Suprême Court having declared in the case of the
Emulous that the jurisdiction of admiralty courts was
not limited to maritime prizes. It is settled, however,
that prize-courts do not act on questions of mere booty.
As a general rule the prize itself should be in the
hands, or under the control of the prize-court which
is to détermine the validity of the capture ; its proceed-
ings being in rem, and requiring the presence of the
res. But to this rule there are some exceptions.
Prize-courts should be governed in their decisions
by the rules and general principles of the law of
nations. They will naturally first consult the spécial
laws and conventional stipulations in force between
the country of the captor and that of the prize.
When none exist, they are left to base their decisions
on the independent principles of the law of nations
and the rules of equity.﻿NE U TUA LIT K
316
In modem usage it is common for a belligerent to
make known at the beginning of the war the rules in-
tended to be laid down for the government of naval
commanders in the matter of prizes. Prize-courts are
not, however, bound to recognize such rules when
they violate the general principles of international
law.
Except in countries where appeals may be taken
from the decisions of prize-courts, such decisions are
conclusive as to the validity of the capture and the
proprietorship of the captor in his prize: the decis-
ions of prize-courts including under this head those of
appellate as well as original jurisdiction. The original
owner of the captured vessel and cargo, however, loses
none of his right in his own country, the decision of
the prize-court constituting the first proof in any suit
or claim for insurance against war risks.
The United States hâve declared that the decision
of a foreign prize-court transfers the property of the
condemned, even though the law on which such de-
cision is based may be unjust, contrary to the law of
nations, regardless of the rights of neutrals, and so pro-
claimed by the President and Congress of the Repub-
lic. It was in conformity to this rule that the Fédéral
government decided that United States owners had no
right to claim from the judicial authorities of their
country, the restoration of the property condemned
by the French courts under the famous Milan decreeof
December 17, 1807.
During her last war with Germany, France estab-
lished two prize-courts, one sitting at Paris, and the
other at Tours and Bordeaux. No new points of law
were brought out in the decisions of these courts. In
every instance the prizes were taken under the enemy’s﻿RE SP ONSIBILIT Y OF THE STA TE. 317
flag by regular naval vessels, and were, consequently,
condemned for the exclusive benefit of the captors.
With regard to their cargoes, the courts were gov-
erned by the déclarations of the Congress of Paris of
1856, confiscating only those articles which belonged
wholly to subjects of the enemy. Property proven to
belong to neutrals waspromptly restored to itsowners,
on payment of costs, brokerage, storage, and freight
to the port whither the captured vessel had been
taken. According to unvarying usage in France, ail
Personal effects, money, nautical instruments and pri-
vate ventures belonging to the officers and men of the
captured vessels, were restored to their owners withçut
costs or expenses.
The judgment of a prize-court puts an end to the
responsibility of the captor, and at the same time ini-
tiâtes that of the State.
Such judgment is final as regards citizens of the
country under whose authority the court acts, but not
so with reference to foreigners* whose governments
may, under certain circumstances, demand indemnity
in their behalf, resorting, when this is refused, to re-
prisais, and even to open hostilities.
Until his capture is adjudged valid by the prize-
court,every captor is responsible for the prizes he makes,
and for damage done to third parties. In cases where
captures are declared not valid by the proper courts,
the captor may be ordered to pay damages, or costs.
In the late civil war in the United States, an inter-
* Note.—This is to be taken with the qualification that as to the title
to property in ail that pertains to the res, the judgment of the prize-
court is equally conclusive on foreigners and citizens ; the intervention
of the government of the alien is solely for the purpose of securing
indemnity from the nation of the captor by reason of erroneous ad-
judication of its own courts.﻿NEUTRALITY.
318
esting case occurred in which the captor was ordered
to pay damages for a capture finally judged to hâve
been invalid. The vessel in question was the Sir
William Peel, an English steamer, captured by a
United States war-vessel in September, 1863, at the
mouth of the Rio Grande, where she had lain some
weeks discharging cargo for Matamoras, and taking
on return-freight for Liverpool.
The United States district court, sitting at New
Orléans, decided that there was reasonable cause for
seizure so far as the object of her voyage was con-
cerned; but ordered the restitution of the vessel—for
the reason that when captured she was anchored in
Mexican waters—costs and charges to be paid by the
claimants, and damages being refused. From this de-
cision the owners of the vessel appealed to the
Suprême Court of the United States. That court af-
firmed the judgment of restitution, including its certi-
ficate of reasonable cause of seizure, reversed the de-
cree charging claimants with costs, and gave directions
that no costs nor expenses be allowed to either party
as against the other.
The case was presented to the Commission formed
under the treaty of Washington of 1871, and was de-
cided in favor of the claimants, on the sole ground that
the fact of the vessel being taken in neutral waters
completely invalidated the capture. From the decis-
ion, which allowed over two hundred and seventy
thousand dollars to the claimants, Judge Frazer, repre-
senting the United States on the Commission, dis-
sented, recognizing the soundness of the following
point made in the argument of the Hon. Robert S.
Haie, agent and counsel of the United States beforethe
Commission:—“That the fact that the vessel was taken﻿JOINT CAPTURES.
319
in neutral waters in no respect changed the case as to
the respective rights of captors and claimants. That
in such case it was only the neutral power whose waters
had been violated that had cause of complaint ; and
such power only could be heard to raise the question
of violation of her waters. That if the United States
by this capture had violated any rights of Mexico, that
was a question to be settled between the United States
and Mexico. That as far as the questions between
those claimants and the United States were concerned,
the case stood in ail respects the same as if the vessel
had been captured upon the high seas.”
Those are termed joint captures which are effected
by two or more vessels acting together, or by the com-
bined action of land and naval forces.
Such captures often give rise to questions very diffi-
cult of solution: such as the determining of the actual
participants in the capture.
General usage divides the prize among those who
rendered effective and material co-operation in making
the capture, and just here great difficulty often arises
in determining what is material co-operation.
In cases of capture by public war-vessels, ail présent
at the moment of seizure are regarded as participants
in the proceeds of the prize : presence implying being
in sight from the captured vessel.
There are certain exceptions to the above rule, such
as allowing a vessel to be considered in sight when
darkness has supervened, and when it appears that the
pursuing vessel continued her course, the prize con-
tinuing the same course, so that they would hâve been
in sight of each other but for the coming on of night.
It is not, however, a sufîicient ground for a claim to﻿320
NEUTRALITY.
share in the prize-money, that the prize should hâve
been seen from the mast-head of a hostile vessel.
Services rendered before or after the capture estab-
lish no claim to joint capture.
Vessels acting as convoys may be parties to joint
capture, provided they are authorized to take prizes,
and provided further that their participation in the
making of a capture does not interfère with the per-
formance of their duty as convoys.
Vessels forming a squadron or fleet, combined for a
given enterprise under a single commander, are con-
sidered as joint captors, although some may hâve been
out of sight at the moment of capture.'
It is necessary, however, that a vessel claiming an in-
terest under this rule should hâve been in condition to
render effective co-operation.
A vessel detached from a squadron at the time of
capture cannot claim any share in the prize-money,
nor can the fleet claim any interest in prizes taken by
a detached vessel. When two vessels, previously acting
together, are separated, either by bad weather, or by
the pursuit of an enemy by each, the prizes taken are
not joint captures.
Land forces are allowed to become joint captors
only when they render actual co-operation tothe naval
force in taking a prize.
Captures made by boat’s crews are considered as ef-
fected by the vessel to which the boat belongs, whether
permanently or temporarily.
The same rule applies to tenders and transports.
Public vessels of allies are joint captors under the
same rules as are laid down for vessels belonging to
one government.
Privateers, not being bound to attack the enemy﻿DIVISION OF PRIZES.
321
whenever he is met with, do not enjoy the benefit of
constructive joint capture ; their co-operation must be
actual in order to give them an interest in the prize
If this were otherwise, privateers might follow naval
vessels and share in their prizes by merely keeping in
sight.
In cases where the actual capture is made by a pri-
vateer, a man-of-war may be a joint captor, but cannot
dispossess the privateer.
When in a common pursuit the privateer fires the
first shot, he can daim to be a joint captor, even though
the prize be finally taken by a war-vessel.
In the absence of rules determining the mode of
dividing the proceeds of joint captures, the division is
made by the court. The common practice is to divide
with reference to the relative strength of the captors,
considering the number of men on the actual captor
and the number on the co-operating vessels.
Finis.