QJorn^U ICam B>rl|O0l Etbrary Cornell University Library JX 68.C54 Leading cases and opinions on internatio 3 1924 017 507 850 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017507850 UKDim CASES AND OPmONS ON INTEENATIONAL LAW, COLLECTED AND DIGESTED FROM (Kngltsfj anlr JForctsn Exports, ©fficial documents, ^arliamentarg papers, anlr otfjer Sources* NOTES AND EXCURSUS, CONTAINING THE VIEWS OF THE TEXT WEITERS ON THE TOPICS EEFEEKED TO, TOGETHER WITH SUPPLEMENTARY CASES, TREATIES, AND STATUTES. By PITT COBBETT, M.A., B.C.L, OF GRAYS IKN, BA.RUISTER-AT-LAW. LONDON : STEVENS AND HAYNES, ILato ^nbltsfjtts, BELL YAED, TEMPLE BAR 1885. LONDOK : BRADBURT, AOKEW, & CO., PRINTERS, WHITEFRIARS. PEEFACE. There is some tendency on the part of English lawyers to regard that body of custom and convention which is known as International Law, as fanciful and unreal ; as a collection of amiable opinions, rather than as a body of legal rules. The text writers have much to answer for in this respect. Their real function is to re- cord and collate existing usage. The function which they have striven to assume has been that of authorship. They frequently prescribe, not what is, but what they think ought to be, the practice of nations. Eules origi- nating thus, necessarily command but scanty reverence ; and perhaps nothing has tended more to lessen the esteem in which International Law is held than the misapprehension which has been thus begotten. The truth is, however, that a very large portion of Inter- national Law rests on authority as trustworthy as that which commands the homage of the English lawyer. The great body of the rules comprising the maritime Law of Nations, together with many fundamental rules in other departments, may be found in the judgments and vi Preface. decisions of International tribunals, such as Boards oi Arbitration and Courts of Prize, some of them presided over by judges fully as eminent as those of the Common Law. Even where such authority fails, it is still possible to draw on such sources as official documents and records, and opinions given by official jurists to their own Governments on matters of international concern. My first object in the present volume has been to bring out how much of the Law of Nations exists in this shape. With this object I have omitted in the text all reference to any but judicial and official opinions, reserving those of the text writers for explanatory notes. I am quite aware that this continual reference to case law as illustrative of topics, which sometimes seem scarcely to come within the domain of the Courts, may occa- sionally appear strained and awkward. Thus, the insertion of the case of the CJierolcee Nation v. The State of Georgia, as an authority on the subject of State character, of the cases of the Eliza Ann and the Teutonia on the subject of " Declaration of War," may seem to give an untrue idea of the real origin and foundation of the rules of International Law on these subjects. My purpose, however, was not so much to indicate the origin of such rules, as to show how far they were sanctioned by the decisions of recog- nized legal authorities. My other object has been to publish a selection of illustrative cases which may serve as a useful companion Preface. vii volume to existing text-books. In order to preserve, as far as possible, the continuity of the subject, I have occasionally inserted cases and dealt with matters which are perhaps already treated of in ample detail. I have found it necessary to add to many of the cases and opinions, notes explaining or collating the principal points of the case, or explaining its relation to some general topic of which it forms a part. In framing these notes I have drawn freely on standard text-books, such as those of Hall, Kent, and Wheaton, and occasionally Heffter. This mode of treatment no doubt involves some repetition. Thus, in treating of enemy property in war, it was impossible to avoid trenching to some extent on the subject of neutral liability. I can only claim to have avoided this where possible. I have ventured to use the word " case " in its widest sense ; not in any way limiting it to disputes that have been the subject of forensic litigation. Some transactions which struck me as bearing on topics treated of, but which I felt could not legitimately be classed either under cases or opinions, nor yet be conveniently embodied in notes, I have thrown into the form of Excursus. It appeared to me convenient to place each Excursus immediately after the topic to which it was most nearly related. There are some topics which are common to the two departments of Public and (if I may venture on using the expression) Private International Law. Some of viii Preface. these I thought it best to reserve for a smaller volume of cases on the Comity of Nations. I must take this opportunity of expressing my great indebtedness to Mr. J. Z. Laurence for much valuable assistance in the compilation of the present volume. I have also to acknowledge the courtesy by which I have been permitted to reprint in this volume the substance of several articles previously published in the Law papers. R C. 4, King's Bench Walk, Temple, B.C., Octoler, 188.5. TABLE OF CONTENTS. PART I.— PEACE. STATES. PAQE Cherokee Nation v. State op Geoegia 1 Appended note 3 Chaekieh 6 Appended note 7 United States of Ambkica v, M'Rae 9 Appended note 11 STATE JURISDICTION. Reg. v. Ketn 14 Appended note 22 EXCURSUS I.— RiVBKS AND Oceanic Canals. Note on Rivers 23 Rhine H. Danube 24 Mississippi 25 St. Lawrence 26 Suez Canal H- Panama Canal .28 PUBLIC VESSELS. Paelbment Bblge 30 Appended note 31 Exchange v. McFaddon 32 Appended note 33 Constitution 34 Appended note • '. 35 Sitka 36 Appended note ■ 37 X Table of Contents, PAflE John Bbown ^^ Appended note FOEBBS ■W. COOHEANB ^^■ Appended note "" Maeianna Floea ^'^ Appended note *1 PEIVATE VESSELS. Atalanta 42 Appended note 43 Newton and Sally 44 Appended note 45 Caelo Albbeto ib. Appended note 46 Ceeolb 47 Appended note ib, FOREIGN SOVEEEIGNS. QUBEN CHEISTINA OF SWEDEN 49 Appended note %b. Duke of Beunswick v. Kin& of Hanovee 50 Appended note 51 Db Habbe -u. Queen of Poetugal ib. Appended note 52 Peiolbau 13. United States of Ameeica 53 Appended note ib. i ALIENS— NATIONALITY. Maetin Koszta 54 Appended note 55 Simon Tousig 56 Appended note 57 LuciEN Alibeet 59 Appended note 2j_ DOMICILE— CIVIL STATUS. Indian Chief gQ Appended note gj POETLAND go Appended note go Mackbtt „. Appended note -i Table of Contents. xi AMBASSADORS— STATE AGENTS. pahj, Lesley, Bishop op Ross 65 Appended note 66 Gyllenbotteg's Case 68 Appended note ib. Pantalbon Sa's Case 69 Appended note ib. Czak's Ambassador 70 Appended note 71 Taylor v. Best 72 Appended note 73 ViVEASH v. Beckbk 74 Appended note it. McLeod's Case 75 Appended note 76 SLAVE TEADB. Loiris . ib. Appended note 77 Antelope 79 Appended note 80 PIRACY. United States •;;. Smith 81 Appended note 82 Seehassan Pihatbs 84 Appended note 85 HUASCAB 86 Appended note 87 Cagliaki . . , ib. ViEGINIUS .... 89 Appended note 92 CUELEW 93 Appended note 94 xii Table of Contents. PART II.— WAR STEPS SHORT OF WAR. pacw SiLESiAN Loan ^^ OQ Appended note BoBDES Lust 99 Appended note ^^ Don Pacifico 101 Appended note 102 DECLARATION OF WAR. Eliza Ann ib. Appended note 103 EFFECTS OF OUTBREAK OF WAR. Beown v. The United States 104 Appended note 105 Russo-DCTCH Loan ib. Appended note 106 WOIiPE V. OxHOLM ib. Appended note 107 Gkiswold v. Waddington _ . . . . lb. Appended note 108 Teutonia ih. Appended note 110 TRADING WITH THE ENEMY. Hoop n. Appended note 112 Rapid 113 Appended note 114 Neptunus 115 Appended note jj_ Venus Hg Appended note ^j_ Potts v. Bell jj7 Appended note ^j Antoine v. Moeshead ^j Appended note ^jg Table of Contents. xiii BANSOiM CONTEACTS. ^^^^ RiCOED V. BetTBNHAM .... 11Q Appended note ., CAPTURE IK WAR. Venus ^^^ Appended note ' ' 122 I'HCENix 123 Appended note ... Anna Cathabina j25 Appended note j 07 DW Maegaebtha 128 Appended note ... .... " ' 129 *V^^^ '.'.'.'.'..' 130 Appended note -loj PRIZE AND BOOTY. Banba and Kiewbe Booty 232 Appended note jog FLAD OyBN jgg Appended note j^j Geeman Conteacts ^^ Appended note 142 SALVAGE. Two Feiends 143 Appended note I45 Santa Cetjz 14g Appended note I47 Caelotta jj_ Appended note X48 Ceylon 14.9 Appended note 150 TERMINATION OF "WAR. SWINBHBED ij. Appended note 151 Mentoe ij. Appended note , . . 152 Electoe op Hesse Cassel 153 Appended note 154 Count Platen Hallemund 155 Appended note 156 xiv Table of Contents. PAET III.— NEUTRALITY. — « — NEUTEAL TEKRITOBY. page Anna 1^8 1 ^9 Appended note TWEB Gebhoedee. ^^^ Appended note -^"-^ Twee Gebkoedee ''^• General Akmstbong 162 Appended note . . . .... . . 163 Caroline i*. Appended note 161 NEUTEAL DUTIES, A. Denmark and Sweden, Dispute between 165 Appended note »'J. Swedish Frigates sold to Mexico ... ... 166 Appended note ij. EXCDESUS II. — Loans by Neutral Subjects to Belligerent States 167 NEUTEAL DUTIES, B.— ENGLISH AND AMERICAN NEUTRALITY CASES. Gideon Henpield 172 Appended note ib. United States v. Qdincy . 174 Appended note . , . ib. Attorney-General v. Sillem and Others 175 Appended note 176 Salvador 177 Appended note 178 Gauntlet . ib. Appended note j Yg EXCURSUS III — Neutkality Elgulations op Korjsign States . 181 Table of Contents. xv NEUTRAL DUTIES, C. pj^ge GenSt, M 183 Tkecbiba Affair .... . .... 185 Saktissima Tbinidad .... 187 Appended note .... 189 Amistad db Eubs 190 Appended note 191 Alabama ib- Floeida 193 Shenandoah, Nashville, Sttmteb and Geokgia 195 Tuscaloosa 196 Appended note . . . ] 98 TUSOAEOEA AND NASHVILLE . . 199 Appended note . . . . %b. BXCUESUS IV.— The Geneva Akbiteation and Award . 200 EIGHTS AND LIABILITIES OF NEUTEAL TRADE. Atlas ■ 205 Appended note . . .... 206 FOETUNA ... . . 208 Appended note . ..... 209 Beemen Fltjgge .... .... . . 210 Appended note ... *"■ Darby v. Bbig Besteen . . . . 211 Appended note .... 212 BLOCKADE. Betsey • • . . . . iT). Appended note . • • • • 213 Hbneick and Maeia . . ■ ... .215 Appended note *"• Columbia ..*.... 216 Appended note 217 Geeasimo ib. ib. 218 Feedeeick Molke Appended note NoETHOOTE V. Douglas, The Feanciska 219 Appended note *"■ xvi Table of Contents. PAQE 219 0°^^^ ■ : 220 Appended note • «*• Mbtictjeius 221 Appended note CONTRABAND. Neptunus "^^ Appended note **• JONGB Mabgaebtha 224 Appended note 225 Maegabbt 227 Appended note ........... 228 Sbton i). Low 229 Appended note «*■ iMINA 231 Appended note »*. ANALOGUES OF CONTEABAND. Oeozbmbo 232 Appended note 233 Atalanta Ji. Appended note ib- MADISON 234 Appended note 235 Tebnt iJ. Appended note 237 EULB OF THE WAE OF 1756. Immanubl 238 Appended note 240 DOCTEINE OF CONTINUOUS VOYAGES. William 241 Appended note iJ, Stephen Habt 243 Appended note jj_ Spbingbok 244 Appended note jj_ Pktbehoff 245 Appended note 246 Table of Contents. xvii VISIT AND SBAECH— CONVOY. PAGE Maria . . 247 Appended note . . 248 Fanny . . 250 Appended note . 251 Denmark and United States, Dispute between 252 ANGAEY. Sinking of English Vessels . . .... 253 Appended note .... . ... 254 APPENDIX. SOME INTERNATIONAL DISPUTES AND MODES ADOPTED FOR THEIR SETTLEMENT. The British American Fisheries Question 255 The Mosquito Protectorate Question ... . 258 The Maine Boundary Question .... . . 259 The Oregon Claims -. . 260 The Delagoa Bay Question 262 INDEX 265 TABLE OF CASES («). Alabama, 181, 191, 203 Aloinous V. Nigreu, 108 Alibert, Lucien, 59 Amedie, 78 Amistad de Rues, 190 Anna, 158 Anna Catharina, 125 Antelope, 79, 80 Anthon 1!. Fiaher, 120 Antoine v. Morahead, 117 Archer, 203 Atalanta (temp. 1808), 233 ' (temp. 1856), 42 AtJas, 205 ii-ttorney-Greneral ti. Sillem, 175, 177 Banda and Eirwee Booty, 132 Bell V. Eeid, 117 Bella Gruidita, 112 Eentzon v. Boyle (Thirty Hogsheads of Sugar), 124 Berens v. Bucker, 240 Betsey, 212 Boedes Lust, 99 Bremen Flugge, 206, 210 Brown v. United States, 104 Brown, John, 37 Brunswick (Duke of) v. King of Hanover, 50 Cagliari, 87 Carlo Alberto, 45 Carlotta, 147 Caroline, 163 'Ceylon, 149 Charkieh, 6, 31, 35 Charlotte, 223 Chavasse, ex p., in re Gtl:azebrook, 171, 229 Cherokee Nation v. State of Georgia, 1 Chesterfield, 37 Christina of Sweden, 49 Clarence, 203 Columbia, 216 Commeroen, 225, 231 Constitution, 34 Creole, 47 Curlew, 93 Cygnet, 207 Czar's Ambassador, 70 Danous, 64 Danube, 24 Darby v. Erstern, 211 De Haber v. Queen of Portugal, 51 Denmark and Sweden, Dispute between, 165 United States, Dispute between, 252 De Wiitz V. Hendricks, 170, 171 Diana (5 C. Rob. 67), 209 (1 Dods. 95), 78 Dos Hermanos, 94 Eleotoe of Hesse Cassel, 153 Eliza Ann, 102 Emperor of Austria v. Day, 52 English Vessels, Sinking of, 253 Essex, 242 Exchange v. McFaddon, 32 (a) It has been thought iit to depait from the usual practice of law treatises, and to refer in the Table of Cases to many matters that have not been the subject of forensic litigation. XX Table of Cases. Fanny, 250 Flad Oyen, 139 Florida, 193, 203 Forbes v. Cochrane, 38 Fortuna (4 0. Eob. 278), 208 (6 C. Eob. 27), 48 (1 Dods. 81), 81 Frederick Molke, 217 Freya, 248 GtAllatin's Coachman, 70 Gauntlet, 178 General Armstrong, 162 Gengt, 183 Georgia, 195 Gerasimo, 217 German Contracts, 141 Grange, 159 Gray Jacket, 114 Griswold V. Waddington, 107 Gyllenbourg, 68 Haaeet, 226 Helen, 171, 230 Henfield, 172 Henriok and Maria, 215 Herbert, 73 Hobbs V. Henning, 246 Hoop, 110, 120 Huascar, 86 Imina, 231 Immanuel, 238 Indian Chief, 60, 123 ludustria, 48 International, 179, 224 Ionian Ships, 113 Jau Fredei-ick, 129 Jecker v. Montgomery, 138 Jeune Eugenie, 80 Johnson v. M'Intoah, 156 Jonge Jacobus Baumann, 48 Jonge Klassina, 63 Jonge Lambert, 147 Jonge Margaretha, 224 Kennkt v. Chambers, 171 King of Two Sicilies v. Wilcox, 1 2 Koszta, Martin, 54 Lesley, Bishop of Ross, 65 Louis, 76, 78 Ludwig, 208 Mackett, 64 Madison, 234 Madrazo v. Willes, 78 Magdalena, &o., Co. v. Martin, 73 Maiek Adhel v. United States, 83 Margaret, 227 Maria (1 C. Rob. 340), 223, 247 (5 C. Rob. 365), 242 Marianna Flora, 40 McLeod, 75 Mendoza, 66 Mentor, 151 Mercurius, 220 Mississippi, 25 Modeste, 159 Moody D. Phoebe Anne, 189 Nashviile, 195 Neptunus (2 C. Rob. 110), 214 (3 C. Rob. 108), 222 (6 C. Rob. 403), 115 Nereide, 251 Newton, 44 Northcote v. Douglas, Franciska, 219 Norwaerts, 208 OoBAif (3 C. Rob. 297), 219 (5 C. Rob. 90), 123 Orozembo, 232 Pacifioo, 101 Palme, 122, 131 Panaghia Rhomba, 221 Panama Canal, 28 Parlement Beige, 30 Peterhoff, 245 Phcenix, 122, 123 Platen Hallemund, 155 Portland, 62, 122 Potts u Bell, 117 Prins Frederick, 35 Prioleau v. United States, 53 Rapid (Edwards, 228), 233 (8 Oranch, 155), 113 Reg. V. Keyn, 14 Rhine, 23 Ricord v. Betteuham, 119 Russo-Dutch Loan, 105 Sa Pantaleon, 69 St. Lawrence, 2(; Table of Cases. XXI Sally (temp. 1795), 206 (temp. 1806), 44 Salvador, 177 Santa Cruz, 146 Santissima Trinidad, 187 Sarah Christina, 226 Serhassan Pirates, 84 Seton V. Low, 171, 229 Shenandoah, 195, 203 Silesian Loan, 95 Sitka, 36 Soglasie, 130 Sorensen v. Reg., 75 (in Twtis) Springbok, 244 Statii-a, 148 Stephen Hart, 243 Suez Canal, 26 Sumter, 195 Swedish Frigates, 166 Swineherd, 150 Taoonet, 203 Taylor v. Best, 72, 73 Terceira Affair, 185 Teutonia, 108 Thompson v. Powles, 170 Tivnan, re, 83 Tolen, Ignajo, 58 Tousig, Simon, 56 Trent, 233, 235 Triquet u Bath, 71 Tuscaloosa, 196, 203 Tuscarora and Nashville, 199 Twee Grebroeder (temp. 1800), 161 (temp. 1801), 160 Two Friends, 143 United States and Prussia, Dispute between, 71 V. Guinet, 174 V. M'Rae, 9, 12 v. O'SuUivan and Lewis, 175 V. Prioleau, 12, 13 V. Quincy, 174 V. Smith, 81 Vavassexte v. Krupp, 53 Yenus (temp. 1803), 116 (temp. 1814), 121 Virginius, 89, 169, 249 Viveash v. Becker, 74 Vreyheid, 209 Trow Margaretha, 128 Welvaaet van Pillaw, 218 Whitehill, 122 William, 241 Wolff 1). Oxholm, 106 Yeissari v. Clement, 170 Tables of Treaties and Statutes will be found in Index. LEADING CASES AND OPINIONS INTEENATIONAL LAW. PAET I.— PEACE. STATES. THE CHEROKEE NATION v. THE STATE OP GEORGIA. Temp. 1829. [5 Petbbs' Ebposts, 1.] Case.] In 1828 and 1829 two statutes were enacted by the Legislature of the State of Georgia affecting the territory of the Cherokee Indians. This territory had been assured to them by solemn treaties on the part of the United States. It was alleged that the effect of these local laws would be to parcel out the Cherokee territory and to subject the Cherokees them- selves to the jurisdiction of the State of Georgia, contrary to the treaties entered into with the United States. Proceedings were thereupon instituted in the Supreme Court of the United States to restrain the State of Georgia from giving effect to these Acts and from executing the laws of Georgia within the Cherokee territory. Judgment] Marshall, C.J., in deHvering the judgment of the majority of the Court, dealt in the first place with the question whether the Cherokees constituted a distinct political society. It was held that they were entitled to claim this 2 Cases and Opinions on International Law. character, inasmuch as they had heen so treated from the time of the settlement of the country, numerous treaties havuig recognized them as a people capable of maintaining the relations of peace and war, and of being responsible in their political character for any violation of their engagements, and for aggressions committed ' on United States citizens by any individual member of their community. Laws had also been enacted in the spirit of these treaties, and Acts of Government had recognized the Cherokee Nation as a State. Passing to the question whether they constituted a "foreign" State, the learned Chief Justice called attention in his judg- ment to the fact that the Cherokee territory constituted part of that belonging to the United States, and that by their treaties the Cherokees acknowledged themselves to be under the protection of the United States. Hence he concluded that their relation to the United States resembled rather that of a ward to his guardian ; that they looked to the United States Government for protection ; and that foreign nations considered them as being so completely under the sovereignty of the United States, that any attempt to acquire their lands would be considered by all as an invasion of United States territory. Moreover, by the Constitution of the United States, power was given to Congress to regulate commerce with "foreign nations, the several States and the Indian tribes," and there- fore it seemed that the Constitution did not comprehend Indian tribes under the general term foreign nations. On these grounds it was held that an Indian tribe was not a "foreign State" in the sense of the Constitution, and that the action in question could not be maintained in the United States Courts. Thompson, J., who dissented, pointed out in his judgment that the terms State and Nation implied a body of men united* together to procure their mutual safety and advantage by means of the union. Every nation which governed itself with- out any dependence on a foreign power was a sovereign State. In this category ought to be included those States that Siaies. 3 had bound themselves to another more powerful, although by an unequal alliance. Provided the inferior ally reserved to itself the sovereignty or the right to govern its own body, it ought to be considered an independent State. The Cherokee nation had always been dealt with as a sovereign State by the Government of the United States; they had been admitted and treated as a people governed solely and exclusively by their own laws, usages and customs within their own territory, claiming and exercising exclusive dominion over the same, yielding up by treaty from time to time portions of the land, but still claiming absolute sovereignty and self-government over what remained unsold. After a further review of the facts, the learned Judge concluded that there was as fuU and complete recognition of their sovereignty as if they were the absolute owners of the soil. It appeared from the cases on the subject that a foreign State judicially considered was one under a different jurisdiction or government, without any reference to its territorial position. On these grounds he was unable to perceive any sound and substantial reason why the Cherokee nation should not be considered a foreign State. Story, J., concurred with Thompson {a). The Cherokee Nation v. The States of Georgia, 5 Peters, 1. On the subject of International Personality, it is of course necessary to appeal to recognized usage, and the text writers who interpret it, rather than to the decisions of municipal tribunals. Nevertheless, this case, though dealing mainly with a question peculiar to the United States organisation, yet contains a fair statement of the con- ditions which go to make up a " foreign State." It appears to have been admitted by all members of the Court that an organised community, governed in matters internal by its own laws and customs, and having in matters external a power of making treaties, and a recognized responsibility for aggression or violation of its engagements, was primd fade entitled to the character of a State. In the view of the majority of the Court, however, the claim of the (a) As to the present status of the national Law, English edition, p. 38. Indian tribes, see Wheaton's Inter- B 2 4 Cases and Opinions on International Law. Cherokee nation to the character of a foreign State was negatived by the fact that the Cherokee territory constituted part of that belonging to the United States. As a municipal tribunal, the Court was also bound to give effect to the presumption afforded by the wording of a clause in the United States constitution. The views of the text writers substantially correspond with these principles. According to Mr. Hall, the requisites of a sovereign State are that it should be permanently established for a political end, in full possession of definite territory, and independent of external con- trol (6). According to Professor Holland, a State may be defined as " a numerous assemblage of human beings, generally occupying a certain territory, amongst whom the will of the majority of an ascertainable class of persons is, by the strength of such a majority, or class, made to prevail against any of their number who oppose " (c). In order that a State may be regarded as an international person, it is essential that it should be recognized by other States. Wheaton says : " But if it desires to enter into that great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called on reciprocally to fulfil, such recognition becomes necessary to the complete participation of the new State in all the advantages of this society. Every other State is at liberty to grant or refuse this recognition, subject to the consequences of its own conduct in this respect" (cc). In the case, how- ever, of a State of sufficient power or importance to influence exten- sively the relations of other States, recognition must ultimately follow from the establishment of de facto sovereignty, although some States may be more prompt in according this than others. A distinction is sometimes drawn between normal and abnormal international persons (c^). It is suggested that the former category includes only those recognized members of the family of civilized nations which are also fully sovereign and independent. It was to this group of States that the Ottoman Empire was admitted by the Treaty of Paris in 1856 ; and it is as between these normal inter- national persons that the theory of equality, and the most complete application of the rules of International Law, may be said to prevail. There is, however, some ground for thinking that, so far as European affairs are concerned, the theory of equality is now giving place to a recognized primacy on the part of the Great Powers (e). In America it may be said that the primacy of the United States, in matters of ^ (6) Hall, International Law, 2nd edi- (c?) Holland, Jurisprudence, 2nd ed tion,, p. 17. p. 293. ' (c) Holland, Jurisprudence, 2nd ed., (e> Lawrence, "Essays on some dis- P- 36. puted Questions of International Law," (cc) Wheaton's International Law, p. 19L by Lawrence, p. 39. States. 5 continental concern, has been a recognized principle since the enuncia tion of the Monroe doctrine in 1823 (/). Amongst abnormal international persons are classed half sovereign and protected States {g), and States which, though fully independent, are yet, by reason of their difference of civilization or their removal from "Western influences, not fully regarded as the subjects of Inter- national Law. It is worthy of note, however, that the increased facility for intercourse, and the rapid spread of Western ideas, are rapidly bringing such nations within its sphere. This enumeration does not exhaust the subjects of International Law. Its rights and duties occasionally extend to organizations which are not in any sense States. Such is the case with revolted provinces or colonies, whose belligerency has been acknowledged by other States, and who are consequently entitled to issue commissions, declare blockade, exercise visit and search and other rights affecting neutral States and neutral trade, but are, on the other hand, bound by the ordinary obligations of a civilized power whilst carrying on the war. Such was the position of the Confederate States during the American Civil War. Occasionally also we find trading corporations invested with some of the rights and obligations of International Law, mainly in regard to the exercise of internal dominion, the acquisition of new territory, and the right of making peace and war within certain limits. Such was formerly the position of the East India Company, and also of the International Association of the Congo at one stage of its career {h). The North Borneo Company may perhaps be referred to as affording a present illustration of this type of international personality, although the rights which it enjoys under its charter from the Crown are of a more circumscribed character [hh). With the varieties of internal organization, or with the terms in which States formerly distinct have become one, with the various forms of union, personal, real, incorporate, federal (i) (Bundes Staat), it would seem that International Law is really not concerned. It looks only to the common international representative. If various States locally distinct have a common government to represent them inter- nationally, they constitute strictly but one international person. It is necessary to add, however, that in personal union one agent repre- (/) Wheaton's International Law, 1885. English edition, p. 87. [Wi) For further information on this (/) Seep. 7, infra. subject, see "The New Ceylon," by (A) The International Association of Joseph Hatton, in which will be found the Congo has since developed into the the charter, dated 1st Nov., 1881. Congo Free State, under the presi- (i) An excellent account of these dency of the King of the Belgians, and forms of organization will be found in the guarantee of the Great Powers. See Wheaton, English edition by Boyd, Proceedings of the Berlin Conference, pp. 53 to 76; see also Twiss, "Law of Parliamentary Papers, Africa, No. 4, Nations," 2nd edition, Vol. I., c. iii. 6 Cases and Opinions on International Law. sents two distinct international persons; also that in Confederate union (Staatenbund) the distinct personality of the different States composing the union is sometimes partially or wholly reserved. Thus in the Germanic Confederation, as established by the Act of 1815, the power of contracting alliances, of maintaining separate legations, and of making peace and war, was within certain limits reserved to the various powers composing the union (/<;). THE "CHARKIEH." Temp. 1873. [L. E. 4 A. & B. 59.] Case.J The " Charkieh " was an Egyptian steamer belonging to the Khedive, and was arrested by, the order of the Court of Admiralty for running down a vessel in the Thames on the 19th of October, 1872. Application was made to restrain further proceedings on the ground that the " Charkieh " was an Egyptian Government vessel, and as such not amenable to the jurisdiction of the Court of Admiralt3\ It appeared that the vessel, although carrying the flag of the Ottoman Empire, had come with cargo to England, and had been entered at the Customs like an ordinarj"^ merchant ship, and at the time of the collision she was under charter to a British subject, and advertised to carry coals to Alexandria. Judgment.] Sir Eobert Phillimore in his judgment con- sidered two questions: (1) whether the "Charkieh" could be said to be the property of a sovereign prince, and (2) whether, assuming that the Khedive enjoyed the status of a sovereign prince, the vessel could under the circumstances still claim immunity from jurisdiction. (An account of the judgment so far as regards the question of the immunity of the vessel will be found under " Public Vessels," p. 31.) On the subject of the status of the Khedive of Egypt, Sir Eobert Phillimore, in giving judgment, stated as the result of an historic inquiry into the subject, that in the firmans granted {k) Wheaton's International Law, English edition by Boyd, p. 64. States. 7 by the Porte to the Khedive, Egypt was invariably spoken of as one of the provinces of the Ottoman Empire ; that the Egyptian army was regulated as part of the military force of the Ottoman Empire, that the taxes were imposed and levied in the name of the Porte, that the treaties of the Porte were binding on Egypt, that she had no separate jus legationis, and that the flag for both the army and the navy was the flag of the Porte. All these facts, according to the unanimous opinion of accredited writers, were inconsistent and incompatible with those conditions of sovereignty which were necessary to entitle a country to be ranked as one among the great community of States. "With reference to the fact that the office of Khedive was hereditary, that did not confer on him the right of making war and peace, of sending an ambassador or of maintaining a separate military or naval force, or of governing at all except in the name and under the authority of his sovereign. The Charkieh, L. E. 4 A. & E. 69. The political position of Egypt would seem to have undergone con- siderable modification since the dateof the judgment in the "Charkieh." By the firman of the 8th of June, 1873, the right of concluding treaties and maintaining armies was granted to Ismail I. by the then Sultan. This increased independence was not destined to last long. After the deposition of Ismail in 1879, the government of Egypt was conducted under the supervision of two controllers-general, one nomi- nated by Great Britain and the other by France, in accordance with a decree of the Khedive of the 10th of November, 1879. In the summer of 1882 an insurrection took place, the object of which was the abolition of the foreign control in Egypt. Great Britain, however, intervened, and the authority of the Khedive was ultimately restored. Subsequently, in January, 1883, a decree was promulgated abolishing the joint control; and in November, 1883, an English financial administrator was appointed. In view of the continuance of the English occupation, and of the continuous assertion of its claims by the Porte, the international position of Egypt must still be deemed both ambiguous and anomalous. Passing to the topic of semi-sovereign States and their position, we may define these as " States which are not free in their external relations, but which may otherwise enjoy fuUintemal independence." 8 Cases and Opinions on International Law. In some cases the internal independence may also be affected, but it is the limitation on its external freedom of action that Inter- national Law is alone concerned with. In the case of the " Charkieh," Sir Eobert Phillimore enumerates the more important tests of semi-sovereignty; although they need not all co-exist. Such limitations on full sovereignty may result from conquest, treaties of unequal alliance, guarantee, or protection. The United States of the Ionian Islands, whilst under the protection of Great Britain, the principalities of Eoumania and Servia before the changes described below, the small principalities of Monaco and San Marino, afford instances of this type of State. The limitations on external sovereignty may vary, but such States have usually no separate jus legationis, being represented only by diplomatic agents or consuls, no power of contracting separate treaties, or of making peace and war, without the consent of the State on which they are dependent. With these protected or vassal States are sometimes classed members of a confederated system of States. Here, under the terms of the union, the individual States composing it may have a separate jus legationis, and even a right of making peace and war, subject to conditions imposed in the general interest of the union. The Germanic Confederation, before referred to, affords an instance of this type of State organization (l). There are, besides, certain permanently neutral States, which are sometimes, though it would seem with doubtful accuracy, classed under' the head of half sovereign States. These are States which have been neutralized by the public act of Europe or the Great Powers. They enjoy the advantage of having their immunity from attack guaranteed them by other Powers ; but they are, on the other hand, subject to an obligation not to take part in any hostilities between other Powers, and may not even enter into any engagements during peace which might jeopardize their neutrality during war. Such has been the position of Switzerland since 1815, and of Belgium since 1830 (m). In all other respects such States enjoy the attributes of full sovereignty. The Treaty of Berlin of the 13th of July 1878, not only makes important changes in the international position of some of these half sovereign States, but illustrates so well the variety of the re- lations in which a dependent State may stand towards another State, that it may be worth while to refer briefly to some of the changes effected by it. By the provisions of this treaty, Eastern Eoumelia was placed under the direct authority of the Porte, but was to have a (?) See "Wheaton's International Law, manently neutralized States, see Whca- English edition by Boyd, p. 64. ton's International Law, English edi- {■m) For an account of these per- tion, pp. 490-493. States. 9 Christian Governor-General, to be nominated by the Porte, with the consent of the parties to the treaty, holding office for five years ; and was to enjoy administrative autonomy {mm). Bulgaria was established as an autonomous tributary principality under the suzerainty of the Sultan, with a Christian government and a national militia ; the Prince was to be chosen by the population of the principality, and his election confirmed by the Porte with the assent of the parties to the treaty, no member of the reigning families of Europe being eligible ; difference of creed was to form no ground of disability; existing treaties between the Porte and foreign Powers were to remain in force, and the principality was to bear a portion of the public Turkish debt. Montenegro was recognized as an independent State ; new territory was added to the principality, in return for which it was to bear a part of the public Turkish debt ; difference of creed was to form no ground of disability ; but the new State was not to have any ships or any flags of war. Servia was recognized as an independent State, subject to the condition that difference of religion was not to be punished, and freedom of worship was to be assured to all persons ; in return for an accession of terri- tory Servia also was burdened with a portion of the public Turkish debt. Roumania was declared independent, subject to the same con- ditions as Servia, and an alteration was made in the territorial limits of the principality. Eoumania was declared a monarchy in 1881, and Servia in 1882 ; so that these may now be said to have discarded their former character as " half sovereign States.'' THE UNITED STATES OF AMERICA v. M'RAE. Temp. 1869. [L. R. 8 Eq. 69.] Cascj During the American Civil War the Confederate Government and their agents had consigned goods and re- mitted money to the defendant, who was apparently domiciled in England. The defendant having sold the goods and received (mrri) The recent revolution in Rou- tertained by others, that political melia and its probable nnion with arrangements, if they are to be perma- Bulgaria afford another iUiistration of nent, must follow the natural Imes of the growino- force of the doctrine of cleavage, or, in other words, must take nationality" and strike another blow count of those ties, whether of race, at the theory that princes and diplo- place, language, religion, or common matists can parcel out nations at will. past and traditions, which go to make This event may aid statesmen in arriv- up a nation, ing at the conviction, long since en- 10 Cases and Opinions on International Law. the sale moneys, a suit for an account was, after the suppres- sion of the rebellion, instituted against him by the United States Government in the English Courts. The defendant put in no answer, and simply left the plaintiffs to make out their title to relief. James, V.-C, asked if the plaintiffs were willing to have the account taken as it would be taken between the Confederate Government on the one hand and the defendant on the other. The plaintiffs declined to accept the decree in any form which would recognize the authority of the belligerent States or involve any privity with their agent. Judgment.] The V.-C, in giving judgment, stated that he would deal with the case as if the plaintiffs had been the Government of India, and the defendant an agent of insurrec- tionists there. What was at the outbreak of the rebellion the public property of the plaintiffs would still continue their property, and if at the end of the rebellion any such property capable of being identified could be traced to any person, the rightful owners would be entitled to apply for restitution. But moneys voluntarily contributed to the rebellion could not be recovered as moneys had and received to the use of the lawful Government. With regard to property taken by force from inno- cent persons the right of possession would still remain in them. The learned V.-C. expressed an opinion that it was clear public universal law that any Government de facto succeeding another, succeeded to all the public property of the displaced power. Any such public property would, on the success of the new or restored power, ipso facto vest in such power, and the latter would have the right to call to account any agent, debtor or accountant to or of the persons who had exercised the authority of the Government. But the right was a right of succession, a right of representation ; it was not a right paramount, but was derived through the suppressed authority, and could only be enforced in the same way and to the same extent and subject to the same correlative obligations and rights as if that autho- rity was seeking to enforce it. Assuming this to be true, it was not open to the plaintiffs to claim fi.-om the agent, and at States. 11 the same time repudiate all privity with him and his former principals. The learned V.-C. expressed himself satisfied that the plaintifi's' claim, as they had framed it, was based on their paramount title to what they alleged to be their own property, in respect of which they sought to treat the possession of the defendants as the possession of the agent of public plunderers, and in this part of the case the proceedings must wholly fail. There was no evidence that any moneys or goods of the plain- tiffs (i.e., of the plaintiffs in their own right, as distinguished from their right as successors of the Government which had been suppressed,) had ever reached the hands of the defendant, or that there were in his hands on or after the suppression of the rebellion any public moneys or goods which had be- come vested in the plaintiffs. On these grounds the suit was dismissed with costs. The United States of America v. M'Bae, L. E. 8 Eq. 69. Where a colony or province secedes or endeavours to secede from the State of which it has hitherto formed a part, various questions may arise for the consideration of other States and their tribunals. Omitting for the present the question of recognition of belliger- ency (w), two other questions present themselves : (1), assuming the revolt to be successful, when and with what consequences are other States bound or entitled to recognize the independence of the new State ? (2), assuming that the parent State re-establishes its authority, how far does it succeed to the rights or responsibilities of the govern- ment overthrown ? With regard to the recognition of independence, Heffter suggests that this cannot be admitted until either the parent State itself recognizes the new order of things after having been indemnified, or, failing this, until the recovery of its ancient rights has become an impossibility (o). Other writers suggest as the condition of recognition, that the new State must be de facto independent, that it must be capable of maintaining relations of peace and war, and lastly that the parent State must have relinquished active efforts to re-establish its authority. Thus, in his (n) See p. 189, infra. (o) Heffter, Europaisches Volkerrecht, § 23. 12 Cases and Opinions on International Law. ' Letters on International Law,' Historicus says : " As far as any prac- tical rule can be deduced from historical examples, it seems to be this. When a sovereign State, from exhaustion or any other cause, has virtually and substantially abandoned the struggle for supremacy, it has no rigM to complain if a foreign State treat the independence of its former subjects as de facto established, nor can it prolong its sovereignty by a mere paper assertion of right. When, on the other hand, the contest is not absolutely or permanently decided, a recog- nition of the inchoate independence of the insurgents by a foreign State is a hostile act towards the sovereign State, which the latter is entitled to resent as a breach of neutrality and friendship " (^). Assuming that the revolted province or State establishes its inde- pendence, it does not succeed to any of the obligations of the parent State, which are of a personal character, such as treaties of alliance or succession, but it does succeed to such obligations as possess a local character. Some illustration of these principles may be found in the rules relating to the apportionment of State debts. If the debt was wholly secured on the local revenues of the province which has succeeded in establishing its independence, the whole liability passes to the new State. If the debt was secured on special revenues partly derived from the seceding province, the latter becomes liable •pro raid. For the general debts of the parent State, on the other hand, the new State is not liable, except in virtue of some special arrangement. We have now to consider the position where the parent State, instead of succumbing, succeeds in re-establishing its authority. Here the question is generally only one of succession to right, and not of succession to liability (g). Debts and liabilities incurred by a rebel belligerent government have uniformly been repudiated. There are, however, certain rights, both proprietary and contractual, to which the parent State may lay claim. The principle suggested by the case of The United States v. M'Rae, and similar cases is, that the parent State, in such case, succeeds to all proprietary and other rights which were previously inherent in any rival government "in its character as government." This, however, is only a right of succes- sion, and is subject to any lawful claims which neutrals holding such property may have against it. Subject to this, a neutral agent can- not resist the claim of the new government on the ground of its want of privity in title with that by which he was employed. In The King of the Two Sicilies v. Wilcox (1 Sim. N. S. 301), it appeared (p) Letters on Interuational Law, the succession to a right sometimes p. 9 (by Sir W. Vernon Harcourt). involves an incidental obligation, as in (?) This statement, perhaps, needs to the case of U. S. v. Prioleau. Seep. 13. be modified to this extent; viz., that States. 13 that from March, 1848, to April, 1849, the Government of Sicily had been usurped by certain Sicilian subjects, and that the usurping government while in power had, through its agents in this country, entered into contracts for the purchase of two steamships. One of these had been delivered to the insurgents, but the other remained in this country ; and on his restoration to power, the King of Sicily com- menced proceedings to recover the latter. The case came before the Court on the plaintiff's application for production of documents ; this was resisted on two grounds — 1st, because the defendants alleged that they held the documents as trustees for the persons by whom they were entrusted with the money ; and 2ndly, because as to certain of the documents their production would subject the defendants to criminal proceedings in Sicily. The Vice-Chancellor held that neither objection was tenable. He remarked that every government in its dealings with others necessarily partook in many respects of the character of a corporation. It must of necessity be treated as a body having perpetual succession. Those who, as constituting the govern- ment, stood in the relation of cestuis que trust or of principals towards the defendants, ceased to fill that character when they ceased to be members of the government. The executive government being then at an end, the defendants had either ceased to fill the character of trustees or agents at all, or they had become trustees or agents for the plaintiff as the person then in possession of the supreme autho- rity. He accordingly held that the plaintiff was entitled to an order for production. On the other hand, in the case of The U. S. v. Prioleau (35 L. J. Ch. N. S. 7), it was held by Wood, Y.C, that the U. S. in claiming certain parcels of cotton of the value of 40,000^., which had been deposited with the defendant by the Confederate Government as security for a contract entered into between the parties, must take the cotton subject to the defendant's lien on the agreement. The V. C. remarked, that Prioleau being a naturalized British subject had a perfect right to deal with the de facto government. The case could not be compared to that of a person taking the property of another with knowledge of the rights of that other, as suggested by counsel for the plaintiffs. Such a principle could not be applied to international cases of this description, for if it could, there would be no possibility during the existence of a government de facto of any person dealing with that government in any part of the world. Subjects who treated with the existing government had every right which the government de facto could give them; and the succeeding government could not assert any right as against the contracts which had been entered into by the government de facto ; they must succeed in every respect to the property as they found it, and subject to all the conditions and liabilities to which it was subject. 14 Cases and Opinions on International Law. STATE JURISDICTION. THE QUEEN v. KEYN. Temp. 1876. [L. R. 2Exch. Div. 63.] Case.] The prisoner, Ferdinand Keyn, was indicted at the Central Criminal Court for the manslaughter of Jessie Dorcas Young. The deceased in February, 1876, was a passenger on board the British steamer " Strathclyde," on a voyage from London to Bombay. When off Dover the " Strathclyde " was run into by the " Franconia," a German vessel under the command of the prisoner, a German subject. The " Strath- clyde " was sunk, and the deceased, together with several others of the passengers and crew, was drowned. It was alleged and found that the collision was due to the negU- gence of the prisoner as captain of the " Franconia." The point at which the collision occurred was I^t miles from Dover pierhead and within 2y miles from Dover beach. The "Fran- conia " having put into an English port, Keyn was indicted for manslaughter at the Central Criminal Court, and the facts being such as amounted in English law to manslaughter, he was found guilty; but the question whether the Court had jurisdiction to try the case was reserved for determination by the Court for the Consideration of Crown Cases Reserved. The legality of the conviction was contested on the groxmd that the accused was a foreigner commanding a foreign vessel on a voyage from one foreign port to another, that the offence was committed on the high seas, and that the accused was conse- quently not amenable to the jurisdiction of the English Courts. It appeared that criminal jurisdiction at Common Law was originally distributed between two tribunals. The Courts of Oyer and Terminer took cognizance of offences committed; within the body of a county ; the Court of the Lord High State yurisdiction. 15 Admiral of those committed on the sea. Each Court claimed concurrent jurisdiction over offences committed on rivers or arms of the sea within the body of a county. By 15 Rich. II. c. 3, the Admiral's jurisdiction was limited to cases of death or mayhem " done in great ships being and hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh unto the sea " ; this in addition, however, to his jurisdiction over " a thing done upon the sea." By 28 Hen. VIII. c. 15, all treasons, felonies, robberies, murders and confederacies committed on or upon the sea, or in any haven, creek, river or place where ;the Admiral had jurisdiction, were to be tried in such shires and places as might be limited in the king's commission, this to be du-ected for the same in like form and condition as for offences committed on land. The result of this statute was to transfer jurisdiction in such cases to the commissioners of Oyer and Terminer, amongst whom was included the Judge of the Admiralty Court, and to make such offences triable by the ordinary process. By 39 Geo. III. c. 37, the provisions of 28 Hen. VIII. c. 15, were extended to all offences committed on the high seas out of the body of any county. Ultimately by 4 & 5 Will. IV. c. 36, and by 7 & 8 Vict. c. 2, this jurisdiction was vested in the Central Criminal Court and the Judges of Assize. In this manner offences originally within the Admiral's jurisdiction became triable by the ordinary law of the land and before the ordinary Courts. This being so, the question in the present case was whether the jurisdiction originally vested in the Admiral and now vested in the Central Criminal Court and the Judges of Assize included jurisdiction over an offence committed by a foreigner on board a foreign vessel within three miles of the English shore. Summary of Judgments.] On the argument of this question be- fore the Court for the Consideration of Crown Cases Reserved, the majority of the Court (including Cockbum, C.J., KeUy, C.B., Bramwell, L.J., Lush and Field, JJ., Sir R. Phillimore and Pollock, B.), were of opinion that prior to 28 Hen. VIII. c. 15, 16 Cases and Opinions on International Law. the Admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore of England, and that 28 Hen. VIII. c. 15, and subsequent statutes only transferred to other Courts such jurisdiction as had formerly been vested in the Admiral. Kelly, C.B., and Sir E. Phillimore came to the same conclu- sion also on the ground that at International Law the power of a nation over the sea within three miles of its coast existed only for certain limited purposes, namely, for the defence and security of the adjacent territory, and Parliament could not consistently with those principles apply English criminal law within those limits. The judgment of the majority was dissented from by Lord Coleridge, C.J., Brett and Amphlett, L.JJ., and Grove, Den- man and Lindley, JJ., on the ground that the sea within three miles of the coast constituted part of the territory of England, that the English criminal law extended over those limits, and that the Admiral formerly had jurisdiction to try offences there committed, although on foreign ships. Coleridge, C.J., and Denman, J., also upheld the jurisdiction of the Court on the further ground that the prisoner's ship having run into a British ship and sunk it and so caused the deceased's death, the offence must be deemed to have been committed on board a British ship. Judgment of Cockljurn, L.C.J.] In his judgment the Lord Chief Justice laid down as a general rule that a subject of one country could not be made amenable to the criminal law of another country except for acts done within the limits of its territory or on board one of its vessels. If the legislature of a particular country thought fit by express enactment to render foreigners subject to its laws with reference to acts committed beyond its territory, it would be incumbent upon the Courts of such country to give effect to such enactment, leaving it to the State to settle the question of International: Law with the Governments of other nations. But in default of such specific enactment the accused could not be made State Jurisdiction. 17 amenable to English law unless he was either within the limits of British territory or on board a British vessel. As to whether there was any such express rule of English law, it appeared that at Common Law every oifence was triable only in the county in which it was committed, the jurors having to be summoned from that county. Bays, gulfs, or estuaries were held to be within the body of the adjacent county ; but along the rest of the coast Common Law jurisdiction only extended to low-water mark. Offences outside these limits were left to the Admiral, as exercising the authority of the sovereign on the high seas; except that in respect of murder and mayhem committed in ships at the mouths of great rivers a concurrent jurisdiction was given by Statute. By subsequent statutes all criminal jurisdiction formerly belonging to the Court of the Admiral was trans- ferred to Courts of Common Law, but these gave the Courts no greater jurisdiction than the Admiralty originally possessed. After referring to the authorities the Lord Chief Justice held that the Admiral's jurisdiction was never exercised (except in case of piracy) over offences committed on other than British ships. If, therefore, the accused was to be held amenable to English law, it must be either on the ground that the offence, having been committed within the three-mile limit, must be considered to have been committed within the Hmits of British territory, over which the State had civil and criminal jurisdiction ; or on the ground that it must be deemed to have been committed on board a British vessel by reason of the death of the deceased having taken place there. With respect to the three-mile limit, the learned Lord Chief Justice said the doctrine in question amounted to this, that a belt of the sea to a distance of three miles from the coast, though so far a portion of the high seas as to be within the jurisdiction of the Admiral, was yet part of the territory of the realm so far as to make a foreigner within such belt, though on a foreign ship, subject to English law. Originally indeed 18 Cases and Opinions on International Law. sovereignty was claimed by the EngUsh Crown over the narrow seas, and a concurrent jurisdiction even beyond this. But such extravagant pretensions on the part of England and other nations had long since ceased, and in no way supported the doctrine of jurisdiction within the three-mile zone, since if it existed at all it would apply to the whole of the surrounding seas. The Lord Chief Justice then went on to trace the origin and growth of the doctrine of the three-mile limit. After careful examination of the writings of the English, American and Continental publicists (q), he came to the conclusion that the suggestion of Bynkershoek that the sea surrounding the coast to the extent of cannon range should be regarded as belonging to the State, had been almost universally adopted by the subsequent writers on International Law ; but he added that great difference of opinion existed as to the exact distance, and as to the stUl more essential question of the nature and degree of sovereignty. As to distance, the majority adopted the three-mile zone, others more consistently applied the principle on which the doctrine really rested, viz., the range of cannon shot. On the question of the nature of the sovereignty still greater divergence of opinion existed, some writers con- tending for absolute dominion and a right of excluding foreign vessels even ifrom passage ; others contending for dominion, but subject to ajus in re aliena on the part of other nations to pass and repass ; whilst others denied that there was any right of property, but conceded a more or less extensive jurisdiction. Even as to this jurisdiction, views differed ; some limiting it to purposes of safety and police, others extending it to the enforce- ment of revenue and fishery laws, others distinguishing between a passing ship and a commorant ship in the matter of jurisdic- tion. None of these writers, however, went to the length of asserting the liability of a foreigner in a foreign ship to the criminal law of the local State. The effect of the general con- (2) These should if possible be referred to, pp. 176 to 191 of the report. State yurisdiction. 19 sensus as to some part of the sea being subject to jurisdiction for some purpose, was entirely negatived by the complete divergence of opinion as to the practical application of the principle. As to the contention that the sea to the extent of three miles from the coast formed part of the realm of England, the learned Lord Chief Justice, after reviewing the authorities, held that the littoral sea beyond low-water mark did not originally form part of the territory of the realm. The statements of ancient authorities on this subject were manifestly based on the doctrine that the narrow seas were part of the realm of England, a doctrine which was long since exploded. This doctrine could not now be evoked for the purpose of applying it within a more limited sphere. If it failed at all, the whole doctrine failed. If, as it appeared to him, the littoral sea beyond low-water mark did not originally form part of the territory of the realm, how and when did it become so ? If it had become so in fact, this result must be ascribed to the writers on International Law. But even if these had been entirely unanimous on the subject, they could not make law apart from the assent of civilized nations. In addition to this, even if assent on the part of other nations was clearly proved, yet it was doubtful if such principles, amounting in fact to a new law, could be apphed by a municipal court here in default of an Act of Parliament. The question being then not one of theoretical opinion but of fact, what evidence, either in the shape of treaties or usage, was there of such a principle ? As regards treaties, the rule that the sea surrounding the coast was to be treated as adjacent territory in such a way as to give the State dominion together with criminal and civil jurisdiction over passing vessels of other nations, had never been made the subject matter of any treaty, or as matter of acknowledged right, formed the basis of any treaty, or even been the subject of diplomatic discussion. It had been entirely the creation of writers on International Law. The treaties referred to on the subject related to two matters only, namely the observance c 2 20 Cases and Opinions on International Law. of the rights and obligations of neutrality, and the exclusive right of fishery. The distance of three miles had been adopted in those treaties not as matter of existing right, but as matter of mutual concession and convention. As to usages, the only usages found to exist were connected with navigation, revenue, fishery, or neutrality laws. There appeared to be no usage warranting the application of the general law to foreigners on the littoral sea. It was the first time that a Court of Justice had been called upon to apply the criminal law of the country to such a case as the present. It was quite possible that, in view of the opinions of writers on public law, if a nation chose by municipal law to subject foreigners within these limits to its jurisdiction, this would-be acquiesced in by other nations ; the principle would then be attributable to such acquiescence. If such a rule were adopted it would, without doubt, be binding on the municipal tribunals ; but the power of Parliament to legislate could not be treated as making up for the want of actual legislation giving the Courts authority to apply such a rule of criminal law in such a case. The learned Lord Chief Justice then proceeded to con- sider the statutes relating to the sea by which foreigners might be affected. Of these some had no reference to the three-mile zone, others had such reference. Dealing with statutory enactments relating to foreigners within the three-mile zone, he found that these were confined to violation of neutral duties or breaches of the revenue or fishery laws, and that, apart from these, there had been no assertion of legislative authority in the general application of the penal law to foreigners within the three-mile zone. It further appeared that when asserting its power to legislate with reference to foreigners within the three-mile zone. ParHa- ment had deemed it necessary to express such intention in specific terms. This surely was an indication that a Court of Justice could not apply such a rule without the authority of specific legislation. After reviewing the decisions which had been quoted in connection with the subject, he remarked that State yurisdiction. 21 most of these seemed to have arisen on the construction of Act^ of Parliament, but in none was the question raised, how- far without an Act of Parliament could local law be made apphcable to foreigners within the three-mile zone. Taken together, decisions and dicta showed that the views and opinions of the foreign jurists as to a territorial sea had been received with favour by eminent judicial authorities of this country, and that the doctrine respecting it had been admitted in the construction of statutory enactments ; but none of them established or even suggested that independently of statute the criminal law of England was applicable to the foreigner navigating any part of its shores. Having regard to all these facts, viz. : — that all pretensions to sovereignty in the narrow seas had been long since abandoned — that the state- ments made by the jurists were uncertain and indefinite both as to the extent of space and nature of the sovereignty claimed over the littoral sea — that such penal jmisdiction had never been conceded by other nations or acquiesced in except for violation of neutrahty or breach of revenue or fishery law — that neither in its legislation as to shipping nor as to criminal jurisdiction had Parliament thought fit to assume sovereignty within the three-mile zone in respect to foreigners — that wherever a foreigner had been rendered amenable to English law this had been done by express and specific legislation — in view of these facts and of the total absence of all precedent in favour of the contention, the learned Lord Chief Justice laid down that the Court would not be justified in holding the offence to be punishable by the law of England, especially as in so holding it must declare the whole body of the penal law to be applicable to foreigners passing our shores in foreign vessels on their way to foreign ports. Another contention urged on behalf of the Crown was, that, the death having taken place on board a British ship, the offence must be deemed to have been committed within the jurisdiction of the British Courts. As to this the learned Lord Chief Justice expressed an opinion that, if the defendant 22 Cases and Opinions on International Law. had purposely run into the " Strathclyde," it might have been held that the killing of the deceased took place where the death occurred, and consequently that the act had been com- mitted on board a British ship ; but he added that where death arose from the running down of another ship through negli- gence, and where consequently the negligence might be said to be confined to the improper navigation of the ship occa- sioning the mischief, he did not see how the party guilty of such negligence could be said to be either actually or construc- tively in the ship on which the death took place. He was, therefore, of opinion that there was no jurisdiction to try the defendant, and that the conviction was illegal and should be quashed (?-). The. Queen v. Keyn, L. E. 2 Exch. Div. 63. Extracts from the judgment of Cockbum, C. J., have been given at some length, not only as containing a clear exposition of some impor- tant principles of International Law, but also as illustrating very forcibly the attitude' taken up by the English Courts towards prin- ciples laid down by the text writers, but not supported by treaty, statute, or decided cases. The jurisdiction denied to exist in E. v. Keyn was given by the Territorial Waters Jurisdiction Act, 41 & 42 Vict. c. 73, which enacted that an offence committed by any person within territorial waters should be an offence within the Admiral's jurisdiction, although committed on a foreign ship. But proceedings under the Act against a foreigner, other than preliminary proceedings before a justice of the peace, are not to be instituted in the United Kingdom, except with the consent of a Secretary of State, and on his certificate that the institution of proceedings is expedient, or in the colonies except with the consent of the Governor, and on a similar certificate. The Act does not affect jurisdiction by the law of nations, or any jurisdiction conferred by statute or existing in relation to foreign ships or persons on board them, nor does it affect trial of piracy. The term " territorial waters " is defined as such part of the sea ^ adjacent to the United Kingdom or other part of the British dominions as is deemed by International Law within the territorial jurisdiction, and for the purposes of the Act any part of the open sea within one league from the coast, measured from low-water mark. (r) The judgment of Lindley, J., of the contrai-y view, hould be refeiTed to for an exposition Rivers and Interoceanic Canals. 23 EXCUESUS I.— EIVERS AND INTEROCEANIC CANALS. Apabt from Treaty and Convention the general principles govern- ing the ownership and use of navigable rivers seem to be : — (1.) Where a navigable river lies wholly within the territory of one State, dominion and user belong exclusively to that State. (2.) Where a river constitutes the boundary between two States, the frontier line is the middle of the channel or thalweg ; but there is a presumption that both States have a right of user or navigation (rr). (3.) Where a navigable river passes through or drains the territory of several States, it is commonly laid down that, although each State retains its sovereignty and dominion over such portion as lies within its territory, yet there exists an imperfect right on the part of the in- habitants of the upper banks, and probably on the part of all riparian owners, to the free navigation of the river. The existence of such a right, however, is frequently denied ; and at the most it can- not be considered more than a right of comity, though it gains in strength where the river affords the only means of access to the sea. But though, " stricto jure" each State could thus appropriate and regulate waters wholly within its territory, the use and navigation of most of the important navigable rivers have come to be regulated by Treaty or Convention So far as European rivers go, it was provided as early as 1814 and 1815 by the Treaties of Paris and Vienna : — (1) that the navigation of rivers bordering on or passing through several States should be free to their mouths ; (2) that subject to this freedom of navigation. States might exercise rights of sovereignty over rivers traversing their territories, but storehouses and stations for trans- shipment were not to be established, nor should those already in existence be preserved, except so far as they were of use for naviga- tion or commerce ; (3) that navigation dues should be independent of the quality and nature of the goods transported, and should not exceed the maximum fixed in June, 1815; (4) that the police regulations relating to navigation should be uniform, and should not be changed by one State without the consent of others. The Riveh Rhine. In 1826 a dispute as to the navigation of the Rhine arose between Germany and Holland. In the Treaty of Paris, 1814, provisions had been inserted for securing the free navigation of the river to upper (rr) Heffter, Europaisches Volkerreoht, § 77. 24 Cases and Opinions on International Law. riparian States. These provisions were confirmed by the Congress of Vienna, 1815. In spite of this the Dutch Government later claimed the right of imposing duties on vessels navigating the lower parts of the river. It appeared that above Nimeguen the river divided into three branches — the Waal, the Leek and the Yssel, aU these being navigable. The Dutch Government contended that these were arti- ficial mouths, that the real Rhine was a small stream leaving the Leek at Wyck, and that it was only this part of the river that the Powers were entitled to use under the provisions of the Congress of Vienna. The matter was at first compromised, the Dutch Govern- ment conceding the right of navigation in regard to tjie Leek. The Dutch Government afterwards consented to the substitution of the Waal for the Leek, this former being better adapted for navigation. Subsequently Holland contended that the Waal terminated at Gorcum, and that the stream below that point, including the mouth of the Meuse, was a mouth of the sea enclosed within Dutch territory, and subject to any imposts and regulations that the Dutch might establish. In this view Holland was supported by France and Baden alone. It was in reply pointed out that by the treaty additional territory had been granted to Holland, and the grant had been com- bined with the freedom of the navigation of the river to the sea; that the riglit of navigation drew with it by implication the right to use the different waters connecting it with the sea, and that the right set up by Holland to levy unlimited tolls on the chief passage into the sea, rendered useless the right of navigation in Dutch territory. The matter was ultimately settled by the Convention of Mayence of the 31st of March, 1831, between all the riparian States of the Rhine. Thereby the navigation of the river was declared free from where it becomes navigable to the sea {bis in die See), and Holland stipulated to indicate other watercourses for the navigation of the riparian States equal in convenience to those open to its own subjects, in case the passage by Briel and Helvoetsluys should become unnavi- gable through natural or artificial causes. By a provision of the Treaty of 1815, which is still in force, it is provided that, in case of war, the collection of customs on the Rhine shall continue uninterrupted, without any obstacle being tlu^own in the way by either belligerent. The Danube. By the Treaty of Paris of the 30th of March, 1856, it was agreed that principles similar to those described above should apply to the Danube, and should be taken for the future as part of the public law Rivers and Interoceanic Canals. 25 of Europe. The navigation of the Danube was to be subject to no impost not expressly provided for by the Treaty ; the rules of police and quarantine were to favour navigation as much as possible ; arrangements were made for the appointment of a European com- mission for the purpose of clearing the river from all obstacles and improving the navigation of the lower part of the river and the adjoining sea, permission being given to levy tolls for the purpose of meeting the expenses of the works. Another commission was ap- pointed for the purpose of drawing up rules for the navigation of the river, and of making provision for the establishment of a river police. This commission was further empowered to make arrangements for the removal of existing tolls, to execute all necessary works re- quired in relation to the river, and, after the dissolution of the European commission, to maintain the navigation of the mouths of the river and the adjoining sea. Each of the parties to the treaty was to be at liberty to station two small boats at the mouth of the river, in order to see that the regulations were carried into effect. By Treaty of the 13th of March, 1871, provision was made for the neutrality of the river works, but it was stipulated that Turkey should still have the right to send ships of war up the river. From this it would seem that the navigation of the Danube, unlike that of the Ehine, is still liable to be impeded by belligerent operations. Dispute as to the Mississippi. In 1763, by the Treaty of Paris between Great Britain, France, and Spain, the right of navigating the Mississippi was secured to Great Britain. Shortly afterwards Louisiana was ced edby France to Spain, and in 1783 Florida was retroceded to the latter country by Great Britain. In the same year, at the time of the acknowledgment of American Independence, the navigation of the river was secured to both Great Britain and the United States. Spain subsequently claimed the exclu- sive right of navigating the river from the southern boundary of the United States. This claim was resisted by the United States, who set up the right to participate in the navigation of the river, and urged that access to the ocean was free, to all men, that rivers were free to aU riparian inhabitants, and that writers on the Law of Nations agreed that the innocent passage of a river was the natural right of all the inhabitants of the upper banks. The dispute was terminated by the Treaty of San Lorenzo el Eeal of 1795, whereby Spain agreed "that the navigation of the river in its whole breadth and its whole length, from its source to the ocean, should be free to the citizens of the United States. Subsequently Florida and Louisiana passed into the hands of the United States, who thus acquired control over the whok river. 26 Cases and Opinions on International Law. Dispute as to the St. Lawrence. In 1826 a controversy arose between Great Britain and the United States on the subject of the navigation of the St. Lawrence Eiver. The United States claimed the full and free navigation of the lower part of the river as a natural right. It was urged on behalf of the United States that by the Treaty of 1794 the United StaJ;es were allowed to import goods through Canada, subject to similar duties to those payable by British subjects ; that the right of the United States to navigate the river had been recognized by the statutes 3 Geo. IV. c. 44 and 3 Geo. IV. c. 119 ; and lastly that the naviga- tion of the river had been opened up to the United States at the same time as to Great Britain. It was further contended, upon the authority of Vattel and Grotius, that the right of passage was a natural right, and recognized as such by the Law of Nations. Great Britain replied that the claim by one State to navigate the territorial waters of another State could only rest on convention. The authority of Puffendorf was opposed to such demands on the ground that if a nation permitted them it would be overflooded with foreigners, and that a nation was justified in reserving to its subjects the profits that would go to foreigners if free navigation was allowed. It was als(3 urged that no treaties had recognized a natural and independent right to navigate rivers; that the pro- visions of the Treaty of Vienna tended to show that there was no such right, and that a right to free navigation could only be established by convention ; that even if the United States had acquired the right to navigate the river in question at the same time as Great Britain, that right had been taken away by the Treaty of American Independence ; and finally that the third article of the Treaty of Commerce between the two countries showed that Great Britain had the power of excluding foreign vessels from that part of the river which was entirely within British dominion. The dispute was finally terminated by the Treaty of Washington of 1871, which gave to the United States the right of freely navigating the river, subject to such laws of Great Britain and Canada as were not inconsistent with free navigation. The Suez Canal. In 1854 a concession was granted by the Viceroy of Egypt to M. Ferdinand de Lesseps, authorizing him to construct a ship canal between the Mediterranean and the Eed Seas. The concession was renewed in 1856. A company was formed in 1858 for the con- struction of the canal, the shares of Which were originally held, partly , Rivers and Interoceanic Canals. 27 by French citizens, partly by the Khedive of Egypt. The canal was finally constructed, and opened for traffic in 1867, the works being carried out under the superintendence of French engineers. In 1875 the British Government purchased from the Khedive the shares possessed by him, one of the motives of the purchase being to obtain some control over the management of the canal. Eecently an arrangement has been come to between M. de Lesseps and some lead- ing representatives of British shipping, by which the British element in the Directorate has been strengthened. Some discussion has occurred as to the international position of the canal, and also as to its neutralization in time of war. The canal itself occupies a peculiar position. It is an artificial waterway ; it lies wholly within Egyptian territory, Egypt itself being a tributary State of the Turkish Empire; as a mercantile institution it is the property of a French company; whilst by far the largest proportion of vessels using it are British. It is contended by some, that, in virtue of the principle established by the Congress of Vienna in 1815, all States have a right of unimpeded navigation, subject to the payment of mercantile dues. Some English writers, whilst not admitting that the principle of 1815 applies to the navi- gation of an artificial waterway, yet claim for Great Britain a right of passage, and, if need be, a right of control, on the ground of its essentiality to her as a maritime route to India. With regard to the question of neutralization, it seems that at present the neutrality of the canal is dependent merely on a declaration of the "Viceroy. Under these circumstances, to contend that the canal has already become a neutralized waterway, would involve an entire mis- apprehension of the true conditions and meaning of neutralization. In 1877 M. de Lesseps submitted to the British Government a project for securing the neutrality of the canal, in the form of an international agreement. The British Government was unable to recoramend the project for the acceptance of other Powers, but stated that an intimation had been given to the Eussian Ambassador (Eussia being then at war with Turkey) that any attempt to blockade or otherwise interfere with the canal or its approaches would be regarded as a menace to India, and a grave injury to the commerce of the world. It was also stated that the British Government would not permit the canal to be made the scene of any warlike operations. In 1882, however, in the course of the British military operations in Egypt, the Canal was occupied by the British fleet, and traffic sus- pended for twenty-four hours. On the 17th of March, 1885, the principal European Powers agreed to appoint a commission for the purpose of settling a convention for the establishment of the free navigation of the canal. With the appointment of this commission the present history of the canal comes to a conclusion. 28 Cases and Opinions on International Law. Mr. T. J. Lawrence in a recent publication («) has suggested that, with the view of settling its international position for the future, a strip of territory bordering on the canal, and extending to a con- siderable distance on either side, should be neutralized, and converted into a new State, under the government of an hereditary prince, ap- pointed in the first instance by the Great Powers ; that the Great Powers should undertake not to attack it, and should guarantee its safety against external foes ; this guarantee being given on con- dition that the new State pledges itself not to make war, except in defence of its frontier, not to allow any obstacle to be placed in the way of the free navigation of the canal, and further undertakes to maintain the waterway in good order, having power to levy reasonable tolls for the expense of such maintenance on all ships passing through the canal. The course of political events, however, suggests the JDrobability that the true solution of the difficulty will be found in the neutralization of the whole of Egypt under the guarantee of the Great Powers. The Panama Canal. Another project in some respects similar to the Suez Canal, is the proposed ship canal through the Isthmus of Panama, between the Atlantic and Pacific Oceans. On the 19th of April, 1850, in contemplation of a similar project, which was, however, to follow a difi'erent route to that of the present canal, a convention known as the Clayton-Bulwer Treaty was entered into between Great Britain and the United States to the following effect : — (1.) Neither Power should obtain or maintain exclusive con- trol over the canal, or erect or maintain any fortification in the vicinity, or occupy, fortify, colonise, or assume any dominion over Nicaragua, Costa Kica, the Mosquito Coast, or any part of Central America. (2.) In case of war between the parties, vessels of either party traversing the canal should be exempt from blockade, detention, or capture. (3.) Protection should be afforded to any persons under- taking the construction of the canal. (4.) Each party undertook to endeavour to induce other States having jurisdiction over territory to be traversed by the canal to facilitate its construction, and also to procure a free port at each end of the canal. (5.) Each party guaranteed the neutrality of the canal. (6.) Each party agreed to invite other States to enter into similar stipulations with them, and to enter into treaties with such of the Central American States as they might deem advisable for carrying out the design of the con- (s) Essays on some Disputed Questions of Modem International Law, p. 37, Rivers and Interoceanic Canals. 29 vention. (7.) Each party also agreed to extend its protection by- treaty to any other practicable communications, whether by canal or railway, across the Isthmus, and especially to the interoceanic com- munications should the same prove to be practicable, whether by canal or railway, which were then proposed to be established by way of Tehuantepec or Panama. The original scheme contemplated by the convention fell through, and it was not until 1880 that any steps were taken to secure the construction of the present canal. In this year M. de Lesseps having obtainedthe necessary concessions, formed a company for the purpose. The canal was actually commenced in 1881, and is now in the course of construction. Some discussion has lately taken place between Great Britain and the United States with reference to this Convention, and the future position of the Canal. The United States have proposed the modi- fication of the Convention with the view to the abrogation of the joint protectorate over the canal, and the substitution of the political control over it of the United States alone ; it is also proposed that the United States should acquire the right of fortifying the canal ; that a neutral zone should be laid down around the entrance to the canal on either side ; that in time of peace the canal should be open to the war vessels of all nations, but that in time of war, apart from its use for the defence of the country, where it is situate, the canal should be closed to all war vessels. It has also been urged by the United States that the Clayton-Bulwer Treaty is no longer binding, inasmuch as it contemplated a canal which was never actually constructed, and inasmuch as Great Britain subsequently acquired a colony in the place of a settlement at Belise in contravention of Article 1 of the Convention. In reply, it has been urged by Great Britain that she has important interests in the locality ; that the subject is also one affecting the whole civilized world ; that the Convention was to extend to any future canal or canals which might be constructed ; that British Honduras, where the colony referred to is situate, was expressly excepted from the convention ; and that the United States in fact expressed their acquiescence in the possession of the colony by Great Britain if). It is also pointed out by Mr. T. J. Lawrence («), that although one Power might exercise a protectorate over the canal, it is fnconsistent with the meaning of " neutralization " as understood in International Law, that such a condition should be guaranteed by one Power alone. («) Parliamentary Papers, United American contention, will be found in ciil AT 1 laa/ Mr. T. J. Lawrences work mentioned States, iNo. 1, loo*. ,, -.-.-. {U) A very clear account of tlie con- above, Essay III. troversy and a careful analysis of the 30 Cases and Opinions on International Law. PUBLIC VESSELS. THE "PARLEMENT BELGE." Temp. 1880. [L. R. 5 Peob. Div. 197.] Case.] In this case it appeared that a collision had taken place in Dover Harbour, between the steam tug " Daring " and the " Parlement Beige." Proceedings were thereupon instituted by the owners of the " Daring " against the " Parle- ment Beige " in the English Court of Admiralty. A protest was filed asserting that the Court had no jurisdiction to enter- tain the suit. The protest alleged that the "Parlement Beige " was a mail packet running between Ostend and Dover, the property of the King of Belgium, and was a pubHc vessel of the sovereign and State. In the Lower Court this protest was disallowed. Judgment] On appeal to the Supreme Court the first question raised was whether the Court had power to proceed against a ship which though present in this country was at the time the property of a foreign sovereign and a public vessel of the State, it being admitted that the ship was not an armed ship of war, nor employed as part of the military force of the country. As to this the Court laid it down as a principle to be deduced from the authorities that every State declined to exercise territorial jurisdiction over the person of any sovereign or ambassador of any other State or over the public property of any State which was destined to public uses. The second question which the Court had to consider was whether the immunity was not lost by reason of the ship having been used for trading purposes. As to this the Court adopted the principle that if a vessel were declared by the sovereign authority by the usual means to be a public vessel, that declaration could not be enquired into. Moreover in the present case the ship had been mainly used for carrying the mails, and only subserviently for the purposes of trade. The property could Public Vessels. 31 not be denied to be public property, the case was within the terms and the spirit of the rule, and the Court was of opinion that the mere fact of the ship having been used subordinately and partially for trading purposes did not take away the general immunity. The judgment of the Court below disallowing the protest was therefore reversed, and the proceedings against the vessel were dismissed (m). The, Parlement Beige, L. E. 5 P. D. 197. A public vessel is one owned and commissioned by the Government of a sovereign State. The term includes not only ships of war, but unarmed government vessels, store-ships, and transports, but not prizes until condemned and re-commissioned. Proof of character is found in the commission, in the use of flag and pendant, and if need be, in the word of honour of the captain. The decision of the Court in the " Parlement Beige " shows that an ancillary use of a public vessel for the purposes of trade will not disentitle her to that cha- racter. In the previous case of the " Charkieh " (L. E. 4 A. & E. 59, the facts of which will be found on p. 6), Sir E. Phillimore adopted the principle laid down by Bynkershoek, that no proceeding in rem could be instituted against the property of a foreign sovereign or his ambassador, if the res could in any fair sense be said to be connected with the jus coronce of the sovereign or with the exercise of the func- tions of his ambassador. But inasmuch as in that case the Khedive had failed to estabhsh his title to the privileges of a sovereign prince, and on the further ground that the " Charkieh " was at the time under charter for trading purposes to a British subject, he refused to recognize the claim to immunity from local jurisdiction. It will be seen, however, that the latter principle has been considerably modified by the decision of the Court of Appeal in the " Parlement Beige." (u) By Conventions between Great shall have the privilege of warships Britain and France it has been agreed whilst in the ports of the other. See that maU steamers of either country p. 234, infra. 32 Cases and Opinions on International Law. "THE EXCHANGE" v. McFADDON. Tmi). 1812. [7 Obanch, 116.] Case.J In December, 1810, while on a voyage from Balti- more to St. Sebastian, " The Exchange," then the property of two American citizens, was seized by order of the Emperor Napoleon. She was converted into a French man-of-war at Bayonne, being known as " The Balaou." She was subse- quently brought into the port of Philadelphia, and proceedings were thereupon instituted against her, with the object of securing her restoration to her former owners. In reply it was contended that the Court had no jurisdiction, the vessel being a public vessel and bearing the commission of a foreign sovereign. Judgment] Marshall, C.J., in giving judgment stated that if there were no prohibition, the ports of a friendly nation were considered as open to the public ships of all Powers with whom it was at peace. If there were no treaty on the subject, and the sovereign permitted his ports to remain open to the public ships of foreign friendly Powers, the conclusion seemed irresistible that they entered by his consent. The following difficulty occurred on the subject : treaties providing for the case of public vessels provide in like manner for private vessels, and when public ships entered a port under a general licence implied from the absence of prohibition it might be urged that they were in the same condition with merchant vessels entering for trade purposes, and like the latter became subject to the local jurisdiction. But it appeared to the Court that a clear distinction was in such cases to be drawn between the rights accorded to private trading vessels and those accorded t5 public armed ships. A public armed ship constituted a part of the military force of her nation, acted under the immediate and direct command of the sovereign, and was employed by him in national objects. Interference could not take place Public Vessels. 33 without affecting his power and his dignity. The implied licence therefore under which such a vessel entered a friendly port might reasonably be construed, and, as it seemed to the Court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claimed the rights of hospitality. He, therefore, concluded that it was an undoubted principle of public law that a national ship of war entering the port of a friendly Power did so under an implied condition of exemption from jurisdiction. "Without doubt the sovereign of the place could destroy the implication, but until this was done in a manner not to be misunder- stood, the sovereign could not be considered as having imparted to the ordinary tribunals a power which it would be a breach of faith to exercise. As to a contention that it was the duty of the Court to enquire whether the title of the original owners had been extinguished by an act recognized as valid by national or municipal law, the learned Judge held that the sljip must be considered to have come into American territory under an implied promise that while necessarily within it and demeaning herself in a friendly manner she should be exempt from the jurisdiction of the country. The proceedings against the vessel were accordingly dis- missed. The 'Exchange v. McFaddon, 7 Cranch, 116. A public vessel, whilst on the high seas, is subject only to the jurisdiction of her own country, and any interference with her on the part of a foreign State would constitute a serious act of aggression. Even whilst in the territorial waters or harbours of another State a public vessel is not subject to the local jurisdiction. The vessel herself cannot be seized ; payment of salvage cannot be enforced ; those on board cannot be arrested. On the other hand, the public vessel and those on board her ought not wilfully to ignore local rules. Sanitary and harbour rules ought to be observed. Criminals taking refuge on board ought to be given up. Political offenders need not be given up, but should not be 34 Cases and Opinions on hiternational Law. encouraged. If damage is done by the vessel, an inquiry may be held, and the claim may be urged diplomatically. Moreover, if the crew offend on shore and are arrested there, they may be punished, although notice should be given to the captain. In extreme cases, a public ship may be summarily ordered to leave territorial waters, or even expelled. THE "CONSTITUTION." Temp. 1879. [48 L. J., N. S., F. D. & A. 13.] Case.] Proceedings were taken to obtain warrants of arrest against the United States frigate " Constitution," and the cargo on board of her, in order to recover compensation for salvage services rendered to her by the steam-tug " Admiral." It appeared that the " Constitution " was an American ship of war, and was in January, 1879, employed in bringing back to America goods belonging to American exhibitors at the Paris Exhibition. The " Constitution " having stranded near Swanage, several tugs and boats came to her assistance, and ultimately she was got off, the steam tug "Admiral" being among the vessels employed in the salvage. The owners of that vessel were offered £200 for salvage service, but deeming this insufficient they instituted proceedings against the "Constitution" in the Admiralty Division of the High Court. At the hearing both the American Legation and the Crown were represented, and the Court was informed that the " Constitution " was a public vessel belonging to the United States, in commission and employed on the public service. The salvors contended, however, that the cargo at least was private property and not entitled to privilege at International Law, Judgment.] Sir Eobert Phillimore in his judgment expressed an opinion that if he were to exercise jurisdiction in the case, he would be doing that for which there existed no direct Public Vessels. 35 precedent ; on the contrary he had no doubt as to the general proposition that ships of war belonging to another nation with whom we were at peace, were exempt from the civil jurisdiction of the British Courts, and there were no peculiar circumstances to take the case out of that general proposition. Adverting to the case of the " Charkieh," he stated that he might in his judgment in that case have let drop some expressions capable of giving rise to an impression that a foreign ship of war was liable to arrest, but in that case the question, as it was now raised, had not to be decided. He now felt no doubt that it would be improper to accede to the request of the owner of the steam-tug ; nor did he see any distinction between the issue of a warrant in the case of the ship and in the case of the cargo, which was on board of a foreign vessel of war and under the charge of a foreign Government, for public purposes. The proceedings were accordingly dismissed with costs. The Constitution, 48 L. J., N. S., P. D. & A. 13. Before the .decision in the case of the " Constitution," some doubt seems to have existed as to whether salvage proceedings might not be instituted in the English Court of Admiralty against a public vessel. In the case of the " Charkieh," Sir E. Phillimore had said, " It is by no means clear that a ship of war to which salvage services have been rendered, may not, jure gentium, be liable to be proceeded against in the Court of Admiralty for the remuneration due for such services." In a much earlier case, of the " Prins Frederik " (2 Dods. 451), a Dutch man-of-war, whilst on a voyage from Batavia to the Texel, was partially disabled by stress of weather off the Scilly Isles, and was brought into Motmt's Bay with the assistance of the master and crew of a British brig, belonging to the port of Penzance. The " Prins Frederik '' was at the time employed in bringing home a cargo of spice belonging to the Dutch Government, and for this purpose some of her guns had been removed. The salvors instituted salvage pro- ceedings against the vessel, on the ground that she had for the time being at least lost the character and privileges of a public vessel, and also on the further ground that such proceedings being in rem, and D 2 36 Cases and Opinions on International Law. not against the King of the Netherlands personally, were under any circumstances admissible. According to Lord Campbell, who quoted this case in 1851 (17 Q. B. 212), Lord Stowell took a strong view against the asserted jurisdiction. To avoid difficulty. Lord Stowell caused a representation to be made to the Dutch Government, who consented to his disposing of the matter as arbitrator. Acting under this authority, Lord Stowell awarded the sum of 800/. and costs to the salvors. THE "SITKA." Temji. 1855. [Opinions of U. S. Attoeneys-Gbneeal, Vol. VII., p. 122.] Case.] In 1856, during the Crimean war, the " Sitka," a Eussian ship, was captured by a British man-of-war, and brought into San Francisco with a prize crew on board. An application for a writ of habeas corpus was made to the United States Courts on behalf of two prisoners on board for the purpose of trying the validity of their detention. Process was served, and thereupon the commander of the " Sitka " got under way with the prisoners on board. Opinion.] The opinion of Mr. Cashing, the Attorney- General of the United States, was subsequently taken as to the conduct of the commander of the ship. He pointed out that judicial decisions had settled the point, that except where there had been a violation of its neutrality, as in the case of. the " Santissima Trinidad " {uu), the Court of a neutral State had no jurisdiction to decide on the validity of a capture made by a belligerent. He also pointed out that the Courts of the United States had adopted almost unequivocally the doctrine that a public ship of war of a foreign sovereign at peace with the United States, coming into her ports and demeaning herself in a friendly manner, was exempt from the jurisdiction^ of the country. The Sitka : Opinions of U. S. Att.-Gen., Vol. VII., p. 122. dm) See p. 187, infra. Public Vessels. 37 This case is cited as illustrating the immunity of a public vessel from having process served on board. In an earlier case, of the " Chesterfield," 1799 (Opinions of U. S. Attorneys-General, Vol. I., p. 87), the question as to whether process could be lawfully served on a British man-of-war lying within the territorial jurisdiction of New York, seems to have been answered in the affirmative. The Attorney-General, Charles Lee, whose opinion was taken, pointed out that by the 23rd Article of the Treaty of London, it was provided that ships of war of each contracting party should be hospitably received in the ports of the other, their officers and crew paying due respect to the laws and government of the country, and that to disobey judicial process or resist it on board the ship, was inconsistent with such due respect. He also pointed out that by an Act of Congress passed on the 5th of June, 1794, and providing that in any case where the process of the United States should be disobeyed by any person having the custody of any war vessel of a foreign prince, it should be lawful for the President of the United States to employ such force as should become necessary, the lawfulness of serving process on board such ship was impliedly ad- mitted. Under these circumstances, he was of opinion that it was lawful to serve process as suggested. CASE OF JOHN BROWN. Temp. 1820. [Rkpokt of Commission on Fugitive Slaves, LXXVI.] Case.] During the revolt of the Spanish Colonies, 1819 — 20, John Brown, an Englishman, commanded one of the insurgent vessels. He was taken prisoner by the Spaniards and put into prison at Lima. He subsequently escaped on to the British man-of-war " Tyne." The Spanish authorities demanded his surrender, which was refused by Captain Falcon, the commander of the " Tj'ne," and Brown was brought home. The Secretary of the Admiralty asked Mr. Scott (after- wards Lord Stowell) his opinion on the general question, whether a British subject coming on board a British man-of- 38 Cases and Opinions on International Law. war in a foreign port, in order to escape from civil or criminal process in that port, could claim the protection of the British flag, to which he replied in the negative, and stated that Captain Falcon's act was more to he commended for its humanity and spirit than for its strict legalitj'-. Case of John Brown : Report of Commission on Fugitive Slaves, LXXVI. A public vessel ought not to harbour a person charged with a non- political crime. If, however, an offender should take refuge on board he cannot be forcibly seized, and if it is desired to obtain his arrest, the only course to pursue is to apply for his surrender diplomatically. Where the captain of a ship in a foreign port allows political refugees on board to make the ship a centre of intrigue, the ship may be forcibly expelled. FORBES V. COCHRANE. Temp. 1824. [2 B. & 0. US.] Case.] The plaintiff was a British merchant residing in East Florida, where the institution of slavery was recognized by law. In 1815, during war between Great Britain and the' United States, Sir A. Cochrane, commander-in-chief of the British fleet on the American station, presumably with the view of hampering the United States authorities and taking advantage of discontent thought to prevail amongst the slaves of the district, issued a proclamation to the effect that any such persons would be received on board the British men- of-war. In consequence of this proclamation a number of, the plaintiff's slaves deserted him and escaped to H.M.S. " Terror Bomb." They were afterwards transferred from that ship to the "Albion," commanded by Sir G. Cockburn, the second officer in command on the station, and taken to Public Vessels. 39 Bermuda. After the war the present action was instituted against Sir A. Cochrane and Sir G. Cockburn for damages for detention of the slaves. Judgment] It was held that the action could not be main- tained ; Bayley, J., grounding his judgment on the fact that no mala fides on the part of the defendants had been shown, and that they were not bound to take active efforts in delivering up the slaves ; Holroyd, J., holding that where a slave escaped into a country where slavery did not prevail there was no right of action against , a party who received him there ; Best, J., holding that when a slave arrived on a British man-of-war not lying within the waters of East Florida he ceased to be a slave. Forbes v. Cochrane, 2 B. & C. 448. With regard to the surrender of fugitive slaves taking refuge on board a public vessel belonging to a nation not recognizing slavery, there is no doubt that these cannot be forcibly recovered. On the other hand, there seems little doubt that if this occurs within the local jurisdiction they ought strictly to be surrendered. To refuse to do so is practically to enforce the law of the country to which the ship belongs in the territorial waters of another State. The attitude of Great Britain on this question may be gathered from the following instructions, the result of which has been said to be a compromise between International Law and humanity. On the 5th of December, 1875, the British Government issued instructions on this subject to the following effect : — 1. No fugitive slave is to be received on board a public ship on the high seas before the commander is satisfied that there is some sufficient reason for receiving him. 2. In case a fugitive slave is received, he is to be detained, if he desires to remain, until he is landed in some country or transferred to some other ship where his liberty will be recognized. 3. If, while a ship is in the territorial waters of a State where slavery exists, a person seeks admission into a ship as a fugitive slave, he is not to be admitted unless his life would be in manifest danger if he were not received on board. If received in order to be saved from this danger, he ought not to be allowed to continue on board after the danger is past ; but a demand for his surrender 40 Cases and Opinions on International Law. should not be entertained or an examination as to his status entered into. 4. If, while a ship is in the territorial waters of certain States specified in the instructions, admission is claimed by any one on the ground that he has been kept in slavery contrary to treaties with Great Britain, he may be received until the truth of his statement is examined into. 5. A special report is to be made of every case of a fugitive slave seeking refuge on board. THE " MARIANNA FLORA." Temp. 1826. [11 Wheat. 1.] Case.] On the 5th of November, 1821, the United States armed schooner " Alligator," whilst on a cruise against pirates and slave traders, came across the Portuguese ship " Marianna Flora," bound on a voyage from Bahia to Lisbon with a cargo. The fact of the " Marianna Flora " having shortened sail, and of her having a vane or flag on her mast somewhat below the head, together with her other manoeuvres, induced Lieutenant Stockton, the commander of the "Alligator," to suppose she was in distress or wished for information. He accordingly approached her, whereupon the " Marianna Flora " fired on the " Alhgator." The firing was repeated, mutual hostihties took place, which resulted in the surrender of the Portuguese vessel. The Portuguese officers stated that they took the "Alligator" to be a piratical cruiser. Ultimately the " Mari- anna Flora " was sent bj' Lieutenant Stockton into Boston and charged with piratical aggression. Upon the hearing the ship was restored by the District Court, and damages awarded for the act of sending her in. On appeal to the Circuit Court the decree for damages was reversed, the ship being restored by consent. An appeal on the question of damages was then taken to the Supreme Court. Judgment.] The Court expressed an opinion that ships of Public Vessels. 41 war, sailing under the authority of their Government to arrest pirates, could approach vessels for the purpose of ascertaining their real character. On the other hand, no ship in time of peace was bound to lie by and wait the approach of any other ship ; she could pursue her voyage in her own way, and use all necessary precautions to avoid any suspected sinister enter- prise or hostile attack ; she could consider her own safety, but she must take care not to violate the rights of others. She might use any precautions dictated by the prudence or fears of her officers, either as to delay or the progress or course of her voyage, but she was not at liberty to inflict injuries upon other innocent parties simply because of conjectural dangers. After reviewing the facts of the case the Court was of opinion that the conduct of Lieutenant Stockton in approaching and ultimately in taking possession of the " Marianna Flora " was entirely justifiable. With regard to the question of damages it was laid down that if damages were given it would be going a great way towards declaring that an exercise of honest discretion in a case of wrong on the other side ought to draw after it the penalty of damages. Moreover, no decision had been cited in which the capture itself having been justifiable, the subsequent detention for adjudication had ever been punished by damages, and the question before the Court was entirely new. The decision of the Circuit Court on the question of damages was accordingly affirmed. The Marianna Flora, 11 Wheaton, 1. It is especially the duty of a public vessel to keep the police of the seas and to put down pirates. For this purpose the public vessel has a right of approach, and, in cases of suspicion, a right of further investigation. The case cited indicates that a public vessel, or, rather, her Government, cannot be rendered liable for consequences accruing from an honest attempt to discharge these duties. For the rules of comity as to salutes, the reader is referred to Ortolan, Diplomatie de la Mer, Book XL, Ch. 15. 43 Cases and Opinions on International Law. PRIVATE VESSELS. THE " ATALANTA." Temp. 1856. [Opinions of U. S. Attoenbys-Gbneeal, Vol. VIII., p. 73.] Case.] The " Atalanta " was an American merchant vessel. Whilst on a voyage from Marseilles to New York, acts of insubordination and violence occurred on the part of her crew, who compelled the master to return to Marseilles. After the arrival of the ship at that port, on the application of the American Consul, all those concerned in the offence were committed to prison by the local authorities. A few days afterwards, with the consul's assent, a number of them were released, but six were sent on board the " Atalanta " to be taken to the United States for trial. Subsequently, with the knowledge of the consul, but in spite of his protests, the local authorities went on board the " Atalanta," re-took the six men, and again imprisoned them in Marseilles. Some correspondence ensued with reference to the matter, and ultimately the opinion of the United States law officers was taken on the case. Opinion.] The Attorney- General expressed the opinion that when the ship arrived at Marseilles the master had lawful power, with the aid of the consul, if required, to retain the men on board. The fact that they had committed crimes on board the ship outside the local jurisdiction, for which crimes they were liable to be punished on her reaching New York, did not give the local authorities any right to interfere. If crime had been committed while the ship lay in territorial waters, the local authorities, and they alone, would have had juris- diction, and might have gone on board to seize the prisoners. The consul acted lawfully when he requested the local authorities^ to take charge of the prisoners. It was the duty of the local authorities to assist him by the express terms of the convention between the United States and France. The local authorities, however, ought not to have interposed to defeat the lawful con- Private Vessels. 43 finement of any members of the crew by the master on board the ship with the advice and approbation of the consul. The Attorney- General, whilst admitting that the local authorities had jurisdiction in regard to crimes committed on board a merchant- man in territorial waters, denied that they had any right to iaterfere with persons lawfully detained on board the ship by the laws of the country to which she belonged, for a crime committed on the high seas among members of the crew, and not justiciable by the foreign jurisdiction. The doctrine of the public law of Europe on this point was well stated by Eiquelme to the following effect : viz., that crimes committed on the high seas, whether on board warships or merchantmen, were to be considered as committed in the territory of the State to which the ship belonged, and that if the ship arrived in port, the jurisdictional right of the territory to which the ship be- longed, did not on that account cease. When the crime was committed in territorial waters, in the case of warships the principle of exterritoriality protected the ship ; in the case of a merchantman, and in the absence of treaty, if the offence aifected only the interior discipline of the ship, the local authorities ought to declare themselves incompetent to deal with the case unless their assistance was requested ; if other- wise, the territorial jurisdiction was entitled to punish the crime. In the present case, therefore, he could not see on what ground of strict international right the local authorities proceeded. The Atalanta ; Opinions of United States Attorneys- General, Vol. VIII., p. 73. A merchant ship on the high seas is only subject to the juxisdiction of the State to which she belongs. That State can exercise administra- tive or criminal jurisdiction in respect of acts committed on board by means of either the authority established on 'board or the ordinary tribunals of the State : it has full civil jurisdiction over subjects on board, and the same jurisdiction over foreigners as it has when they are in its territory, subject to any exemption existing by the mum- 44 Cases and Opinions on International Law. cipal law. The State to which the vessel belongs is also entitled to protect the vessel against interference by other nations, unless she has committed any act of hostility against another State or any act which a belligerent is entitled to restrain, or unless she has escaped on to the high seas after violating the laws of another country while within its waters. Each State has the right of determining the conditions upon which it will admit foreign merchant ships into its territory, but ships of friendly nations cannot be altogether excluded from commercial relations. A merchant ship in a foreign port is subject to local laws relating to police and navigation. The vessel and those on board her are also usually held to be subject to the jurisdiction of the local Courts in regard to offences, whether committed on ship or on shore. Both Great Britain and the United States act on this principle. The French Courts, however, refuse to interfere except when the peace of the port is disturbed, where foreigners are concerned or where help is asked. (See the cases of the " Newton " and the " Sally,'' cited below. ) In addition to this in many instances consular conventions have been entered into to the effect that where a merchant vessel of one State enters the waters of another, the consul of the State to which the ship belongs shall have exclusive jurisdiction over matters concerning only the internal order of the vessel, and that the local authorities shall only have jurisdiction where the peace or public order of the locality is disturbed, or persons other than the officers and crew are concerned in the breach of order. Mr. Hall suggests the advisability of principles to this effect being embodied into the Law of Nations (x). Private vessels are also usually exempted from local jurisdiction if they put into port owing to stress of weather. THE "NEWTON" AND THE "SALLY." Temp. 1806. [OETOLAN, DlPLOMATIE DE LA MeR, VoL. I., p. 271, AUD ANNEXE J., p. 445.] Case.] In 1806, while the " Newton," an American merchant ship, was in the port of Antwerp, a quarrel took place between two sailors in a boat belonging to the ship. About the same (x) International Law, 2nd edition, p. 183. PHvate Vessels. 45 time, when the " Sally," also an American merchaat ship, was in the port of Marseilles, the mate dangerously wounded one of the crew on the ship. The American consuls claimed exclusive jurisdiction in each case. Judgment.] The matters came before the Conseil d'Etat, who pronounced in favour of the consuls, on the ground that in respect to offences and torts committed on board a foreign vessel in a French port by one of the oiBcers or crew against another, the rights of the foreign Power ought to be regarded as exclusive concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection was demanded, or the peace and tranquillity of the port were disturbed. The Newton and the Sally, Ortolan, Diplomatic de la Mer, Vol. I., p. 271, and Annexe J., p. 445. These cases are cited as illustrating French law on this subject, Antwerp being at the time under French jurisdiction. THE "CARLO ALBERTO." Temp. 1832. [SiEKY'S Eecueil, Vol. XXXII., Ft. 1, p. 578.] Case.] The " Carlo Alberto," a Sardinian steamship, secretly landed on the French coast the Duchess of Berri and several of her adherents, on the night of the 28th or 29th of April, 1832. The ship had been chartered for Barcelona, the real destination, which was to aid an insurrection against the French Government, having been concealed. In consequence of the landing of the Duchess of Berri an insurrection occurred at Marseilles on the 30th. The ship subsequently put into the port of La Ciotat in distress, and thereupon certain persons on board were arrested by the French authorities. 46 Cases and Opinions on International Law. Judgment] The lower Court ordered their release on the ground that the arrests were illegal, inasmuch as they were made on a foreign ship, which was to be considered as foreign territory. The decision was reversed by the Cour de Cassation, the Court laying down in its judgment that the privi- lege established by the Law of Nations in favour of allied or neutral ships ceases when those ships, in contempt of alliance or neutrality, commit acts of hostility ; that in such case they become enemies, and must submit to all the consequences of the state of aggression in which they have placed them- selves. The ship in the present case was not entitled to the privileges usually accorded to foreign ships putting into port in distress, inasmuch as the vessel had been fitted out to take part in a conspiracy, and had assisted in the execution of a crime which the French authorities ought to investigate. On these grounds, and also on the ground that the vessel was then actually engaged in carrying persons guilty of a conspiracy against the French Government, the Court refused to recognize the exemption contended for. TU Carlo Alberto, Sirey's Eecueil, Vol. XXXII., Pt. 1, p. 578. By a humane provision of International Law, vessels putting into a foreign port under stress of weather, are usually exempted from local jtirisdiction ; but apparently this does not extend to vessels committing offences in violation of the Law of Nations. Private Vessels. 47 THE "CREOLE." Temp. 1842. [Paeliamentaby Papkes, 1843, ¥ol. LXL] Case.] In October, 1841, the " Creole," an American brig, left Hampton Eoads for New Orleans, carrying, among other things, a cargo of slaves. On the 7th of November the slaves broke into revolt, murdered a passenger, and wounded the captain, the mate, and two of the crew. They took the brig to Nassau, New Providence. The matter was brought before two magistrates, who ordered the imprisonment of nineteen of the slaves, and set free the others, about 113 in number, on the ground that the moment they landed on British territory they became free. The United States Government remonstrated against this course, Mr. Webster contending that the ship having been driven into British territory by unavoidable force, those on board ought not to be held within the jurisdiction of the port. To this Lord Ashburton replied that no slave who came within British dominion would ever be restored, and that the matter in dispute was "what constituted coming within British dominions." "Without expressing any opinion on this point, he suggested that the matter should be referred to the Home Government. In the result the matter was submitted to arbitration, and an indemnity awarded to the owners of the " Creole " for the loss sustained. The Creole Case, Parliamentary Papers, 1843, Vol. LXI. The result of the " Creole " dispute seems to support the principle that a private vessel putting into a foreign port through compulsion of the crew is in the same position as a vessel entering a foreign port through stress of weather, and is exempted from jurisdiction. 48 Cases and Opinions on International Law. The following cases illustrate respectively the exemption from ordinary liabilities which may accrue from stress of weather or from the performance of acts of generosity towards a crew itself in distress : — In the case of the " Fortuna " (reported 5 C. Eob. 27), during war between Great Britain and Holland, a neutral ship was captured for breach of the blockade of the Weser, and sent home for adjudication. The master set up a defence to the effect that the want of provisions and a strong westerly wind compelled him to make for the Weser. The want of provisions was held no excuse, but Sir Wm. Scott per- mitted evidence as to the state of the wind to be adduced, and the ship was finally restored. In the case of the " Jonge Jacobus Baumann " (reported 1 C. Rob. 243), it appeared that during war between Great Britain and France this vessel had received on board the crew of the British frigate " Apollo," which had been found in a disabled condition by the " Jonge Jacobus Baumann." Subsequently, the English crew took possession of the vessel, brought her into an English port, and pro- ceeded against the ship on the ground of having enemy's property on board. The ship was restored, and freight, expenses, private adventure, and a reasonable demurrage was given to the owner. Sir Wm. Scott expressing an opinion in judgment, that if the ship had reaUy belonged to an enemy, the character of enemy itself must have been blotted out by such a service as had been performed. In the case of the " Industria " (cited in Forsyth's Cases and Opinions on Constitutional Law, p. 399), a Spanish ship had put into the port of Black Eiver in Jamaica, in distress, with five slaves on board. The law officers of the Crown expressed an opinion that, assuming the " Industria " to have put into Black Eiver in distress, she could not be deemed to have committed any offence against the laws of Great Britain, and was therefore not liable to seizure and confiscation by the civil authorities of the island. They were, however, of opinion that she might have been seized by a duly commissioned British cruiser under the treaty with Spain for the aboli- tion of the slave trade, and carried before a Court of Mixed Commission for adjudication. Foreign Sovereigns. 49 FOREIGN SOVEREIGNS. QUEEN CHRISTINA OP SWEDEN. Temp. 1657. [Dk Hastens, Causes Celebrks, Vol. I., p. 1.] Case.] In 1654, Christina, Queen of Sweden, abdicated her throne in favour of her cousin Charles Gustavus. After her abdication she travelled in various countries. Amongst other countries she visited France on two occasions, and whilst there was accorded royal honours, and treated by the French Government as a queen regnant. On the occasion of her second visit her chamberlain, Monaldeschi, whom she accused of treason, was put to death by her orders. The question of amenability to French jurisdiction having thus arisen, the French jurists expressed an opinion that the Queen, being an independent sovereign and being in France with the permis- sion of the King, it was not competent to refuse her the right of sovereignty over her subjects, and that all persons in her service and receiving salaries from her must be considered as such, with the exception of those who were subjects of the State where she was resident. In view of this expression of opinion the French authorities refused to interfere. Queen Christina of Sweden, De Martens, Causes Celebres, Vol. I., p. 1. The privilege of exterritoriality extends to sovereigns resident or travelling in other countries than those over which they reign. They enter the country under an implied condition of exemption from local jurisdiction ; but this will not warrant their exercising acts of sovereignty, though it would seem that even in this case there is no remedy beyond diplomatic protest, or, at most, expulsion. This privilege, however, does not extend to sovereigns who have abdicated. In the case of Queen Christina, the Queen would doubt- less have been held amenable for her acts to the local tribunals, had 50 Cases and Opinions on International Law. the French Government not debarred itself from taking this course by a previous recognition of the Queen's title to the international rights of a sovereign. Neither does this exemption from local jurisdiction exist where the sovereign is a subject of the country in which the proceedings are taken, except so far as concerns acts done as sovereign in the country over which he reigns. In the event of a foreign sovereign committing any acts endanger- ing the safety or public order of the community, it would be lawful to subject his person to restraint, and to compel him to quit the country. This privilege of exterritoriality is shared by ambassadors («m), public vessels {v), military forces, when permitted to pass- through the territory of another State {wu), and by the subjects of Western States when domiciled in certain Eastern countries (w). THE DUKE OF BRUNSWICK v. THE KING OF HANOVER. Tem^p. 1844. [13 L. J, N. S. 107 ; 11 House oif Loeds Cases, 1.] Case.] In this case proceedings had been instituted by the Duke of Brunswick for a declaration that certain instruments appointing the Duke of Cambridge, and afterwards the King of Hanover, his guardians, were void. The defendant, the King of Hanover, was served while temporarily resident in this country, and an application to the Lord Chancellor to relieve him from the process was refused. He thereupon appeared, but an appeal on the question of jurisdiction was taken to the House of Lords. Judgment.] In the House of Lords it was held that the king's appearance was no waiver of any defence he might have, and that the refusal of the Lord Chancellor to relieve him from process had not the effect of deciding that he was liable to the jurisdiction. It was further held that he was exempt from the jurisdiction of the Courts of this country for acts done by (mm) See p. 66, infra. Edition, pp. 177, 178. (d) See p. 33, mpra. («,) Kent's International Law, by (ot) Hall's International Law, 2nd Abdy, 2nd Edition, p. 202. Foreign Sovereigns. 51 him as King of Hanover, but that being a subject of the Queen he was liable to be sued here for acts done by him in such character, and that acts done by him out of the realm, or as to which it was doubtful whether they were done by him as subject or sovereign prince, should be presumed to have been done in the latter capacity. After a review of the facts, it was held that the acts of the defendant under colour or authority of the instruments in question, were not such as would render the defendant liable to be sued in the courts of this country in respect of them. The, Duke of Brunswick v. The King of Hanover, 13 L. J. Ch. N. S. 107 ; 11 Ho. of Lds. Cases, 1. The principle underlying this case is, that a sovereign as such is not amenable to the jurisdiction of foreign courts. If, however, he is also a subject of a foreign State, he is Uable to be sued in its courts in respect of acts done by him as subject ; though acts done out of the jurisdiction will be presumed to have been done by him as sove- reign. DE HABER v. THE QUEEN OF PORTUGAL. Temp. 1851. [20 L. J. N. S. Q. B. 488.] Case.] An action was brought in the Mayor's Court against the Queen of Portugal, as reigning sovereign of that country, to recover a sum of Portuguese money equivalent to 12,136Z. The plaidtiff had deposited this sum with one Francisco Ferreira, of Lisbon, a banker, at a time when civil war pre- vailed between the legitimate Sovereign and Don Miguel, a pretender to the throne. This sum was paid over by Ferreira to the Portuguese Government under the decree of a Portu- guese Court. It was this sum which the plaintiff in the present case sought to recover. After the institution of pro- E 2 52 Cases and Opinions on International Law. ceedings an order was made attaching a sum of money in the hands of one de Brito, of the City of London, belonging to the Queen of Portugal. A rule nisi was obtained on behalf of the defendant prohibiting the Mayor's Court from further proceeding with the action. Judgment.] On the application to make the rule absolute, it was held that the awarding of the attachment was an excess of jurisdiction, the defendant being sued as a foreign potentate, and not being amenable to the local jurisdiction. De Haher v. The, Quern of Portugal, 20 L. J. N. S. Q. B. 488. Just as a foreign sovereign is exempt from personal liability in regard to acts done by him as sovereign, so we may gather from the above case that he is exempt from any proceedings against his property, when sued in his public capacity. "Where, however, the property is not connected with his Jus coronce, then liabilities accruing in connection with it may be the subject of jurisdiction on the part of the local courts. The rule that the municipal courts of this country have no cognizance over public and political transactions relating to foreign States, will not preclude their interfering under certain circum- stances to prevent the violation in this country of a rule of foreign municipal law. In the case of the Emperor of Austria v. Day (2 Giff. 628), the defendants, Messrs. Day, had manufactured in Great Britain a large quantity of Hungarian paper money on behalf of the rebel government, which was presided over by Kossuth. Pro- ceedings were taken in England on behalf of the Emperor of Austria to restrain them from manufacturing any more, or disposing of what they had already manufactured. The application was resisted, on the ground that the Court had no jurisdiction to inquire into a matter outside English municipal law, and relating to the public and political affairs of a foreign nation. Stuart, V.-C., in giving judgment, held that the regulation of the coin was not merely a question of municipal law, and that the prerogative of each sovereign State as to money was a great public right recognised and protected by the Law of Nations. It was held to be immaterial that the other defendant Kossuth, for whom the notes were manufactured, con- templated the overthrow of the plaintiff's existing rights, and that it was after such overthrow that he. intended to use the notes. The injunction prayed for was accordingly granted. Foreign Sovereigns. 53 PRIOLEAU V. THE UNITED STATES OP AMERICA. Temp. 1866. [L. E. 2 Eq. 659.] Case.] The United States commenced proceedings here for the purpose of establishing their right to certain bales of cotton, then in the possession of the Mersey Docks and Harbour Board. Messrs. Prioleau, the defendants, commenced cross-proceedings against the United States and President Andrew Johnson, for the purpose of obtaining discovery. These proceedings were demurred to by the United States. Judgment.] It was held that the United States, having sub- mitted themselves to the jurisdiction of the Courts of this country, Messrs. Prioleau were entitled to discovery, and that the former proceedings must be stayed until discovery was made. The Court, however, intimated that the President had been improperly made a defendant to the cross-proceedings, as the person to give discovery, inasmuch as it did not appear that the United States Government had control over their President or could compel him to make the discovery. Prioleau v. The United States of America, L. E. 2 Eq. 659. If a foreign sovereign once attorns to the local jurisdiction, he is then bound bythe ordinary rules ofprocedure, and can claim no special exemp- tion or privilege. The principle, however, that if a foreign sovereign attorns to the jurisdiction of the municipal tribunal, he stands in the position of any other suitor, must be taken subject to the limitation imposed by Vavasseur v. Krupp (L. R. 9 Ch. D. 351). In this case it appeared that the Mikado of Japan had bought in Germany some shells which had been lawfully made there. They were brought to England on their way to Japan. An injunction was obtained as against the defendant Krupp, restraining the removal of the shells from England, on the ground that they constituted an infringement of an English patent. On the application of the Mikado, he was made a party to the suit, and a motion was thereupon made on his behalf for dissolution of the injunction. On the hearing of the motion 54 Cases and Opinions on International Law. liberty was given to the Mikado to take the shells that belonged to him out of the jurisdiction. The plaintiiFs appealed from this order, but the appeal was dismissed with costs. James, L.J., in giving judgment, held that a foreign sovereign could not be deprived of his property because it had become tainted by the infringement of a patent. As to the suggestion that the Mikado had lost his privilege through submitting to the jurisdiction, he merely submitted for the purpose of discovery, process, and costs, and did not submit his property to be dealt with by a Court of municipal jurisdiction, and in violation of his rights. No Court of municipal jurisdiction was authorized to interfere with such rights. Brett, L.J., in his judgment, took a similar view with reference to the effect of the Mikado's interference in the suit, and laid down that no Court in England could properly prevent him from having goods which were the public property of his own country. ALIENS— N A TIONALITY. CASE OF MARTIN KOSZTA. Temp. 1853. [Wheaton's Intbbnational Law by Lawrence, 229 ; Hall's Inter- national Law, 2nd edition, 217.] Case.] Martin Koszta, a Hungarian subject, after taking part in the rebellion of 1848-9, fled to Turkey. Here he was imprisoned by the Turkish Government at the instance of Austria, but was afterwards released on condition of his leaving that country. He chose the United States as the place of his exile, and declared his intention of becoming naturalized. The conditions of naturalization in the United States are five years' residence, together with a formal declara- * tion of intention, made at least two years previous to the completion of the required term of residence. Koszta made the preliminary declaration, but before the five years had expired he returned to Smyrna, having obtained from the Aliens — Nationality. 55 United States consul a travelling pass stating that he was entitled to United States protection. While at Smyrna he was, according to Wheaton, seized hy persons in the pay of Austria, taken by them to sea, thrown overboard and picked up by an Austrian man-of-war. The American consul demanded his release, and a man-of-war was sent to enforce this. The matter was ultimately compromised through the mediation of the French consul, and Koszta was sent back to the United States, but Austria reserved the right to proceed against him if he returned to Turkey. Case of Martin Koszta : Wheaton's International Law by Lawrence, p. 229 ; Hall's International Law, 2nd Edition, p. 217. This case raises several important questions of International Law. The first of these is, did the incipient but incomplete naturalization of Koszta in the United States entitle him to the protection of a citizen of that country? This question was left unsettled, but Mr. Marcy, in his despatch, affirmed that whether Koszta was a United States citizen or not, the Austrian Government had no right to seize him on Turkish soil. The truth of this can scarcely be denied. On the other hand, it is difficult to say that the United States would have been justified in "having recourse to force in the first instance. It was at once the right and the duty of Turkey to insist on reparation by Austria. Passing to the subject of political status generally, it appears that the conditions by which it is determined vary in different countries. By the law of England and the United States, nationality or political status is primarily determined by locahty of birth. In England this is subject to various exceptions, both at Common Law and by statute (see 25 Edw. III. st. 2 ; 7 Anne, c. 5 ; 13 Geo. III. c. 21 ; and the Naturalization Act, 1870, 33 & 34 Vict. c. 102). By the law of Germany and Austria, the test of political status is found in the nationality of the parents. By the law of France, the test is the same, subject to a right on the part of a child born in France of foreign parents to elect French nationality within one year of becoming sui juris. 56 Cases and Opinions on International Law. CASE OP SIMON TOUSIG. Tmp. 185i. [■WHBATON'S iNTBENATIONAL LAW BY LAWEBNCE, APP., 929.] Case.] According to the law of Austria no Austrian subject can transfer his allegiance without the consent of the sovereign-. In 1848, Simon Tousig, an Austrian subject, obtained a pass- port allowing him to travel for one year through Germany to France and England. In 1849, without obtaining any further licence, he went to the United States. Here he proposed to become naturalized, but before completing his naturalization he returned to Austria, when criminal proceedings for illegal emigration were instituted against him. He thereupon claimed the protection of the United States, but interference on his behalf was decHned on the ground that as he had once been subject to the laws of Austria, and had, while so subject, violated those laws, his withdrawal from his native juris- diction and proposed acquisition of a different national character would not exempt him from their operation when- ever he again chose to place himself under them. Opinion.] Mr. Marcy, in his despatch to the United States Ambassador at Vienna, admitted that every nation, when its laws were violated by anyone owing obedience to them, whether a citizen or a stranger, had a right to punish the transgressor when found withiu its jurisdiction, and the case was not altered by the character of the laws unless they were in derogation of the well established International code. No nation had a right to supervise the municipal code of another nation, or claim that its citizens or subjects should be exempted from the operation of its code, if they had voluntarily placed themselves under it. The character of the municipal laws of one country did not furnish a just ground for other States to interfere with the execution of those laws even upon their own citizens when ' they had gone into that country and subjected themselves to its jurisdiction. Case of Simon Tousig : Wheaton's Internatioaal Law by Lawrence, App., 929. A liens — Nationality. 5 7 The difference between the attitude of the United States in the present case and in that of Martin Koszta appears to have arisen from the fact of the return to Austrian jurisdiction having been voluntary, while in the case of Martin Koszta there had been a com- pulsory seizure by the Austrian authorities, practically within the teiTitory of another State. It will be seen from the cases referred to below, that the doctrine affirmed by Mr. Maroy has since undergone considerable modification (x). Naturalization implies the renunciation of one political status and the adoption of another. It involves two questions : (1) How far will it be recognized by the parent State as exempting the party naturalized from the consequences of his earlier allegiance 1 In other words, How far is there a right of expatriation 1 (2) Under what con- ditions will it be granted by the State to which the alien seeks to afiiliate himself? In regard to the first question, many States formerly refused to allow their subjects to defeat their previous allegiance. The maxim of English Common Law, " Nemo potest exuere patriam,'' precluded a natural-born subject from adopting a new political status, and rendered him liable to the penalties of treason if found in arms against his native country. The existence of this principle gave rise to many disputes between Great Britain and the United States, and was formally abandoned by statute (Naturalization Act, 1870) (y). By a treaty entered into, in the same year, between Great Britain and the United States, it was provided that British subjects becoming naturalized in the United States should be treated in all respects as United States citizens ; and a corresponding provision was made with respect to United States citizens becoming naturalized in British dominions. It is still contended, however, by many writers on International Law that there is no right of expatriation, and that the subject of one State cannot contract a new allegiance without his native country's consent. Mr. Hall is of opinion that International Law recognizes no such right, and adds that the affirmation of such a right would indicate a disregard at once of comity and conveni- ence (z). But there can be no doubt that the fast changing con- ditions of modern political life, and the exigencies of modern trade and commerce, will all tend sooner or later to force an acceptance of this principle on International Law ; though it may be subject to a continuing liability for non-extraditable offences previously com- mitted where this is not got rid of by prescription. Nothing can illustrate this better than a comparison of the earlier and later attitude of the United States. (x) See p. 68, infra. (z) International Law, 2nd Edition itj) 33 & 34. Vict. t. 102. pp. '214, 215. 58 Cas,'',s and Opinions on International Law. In the case of Ignago Tolen, a Spaniard who had been naturalized in the United States, Mr. Secretary Webster, in a despatch dated 25th June, 1852, stated that if the Spanish Government recognized the rights of its subjects to denationalize themselves and assimilate themselves with other countries, the usual passport would be a suffi- cient guard ; but if the law of Spain did not permit them to renounce this allegiance, they must expect to be liable to the obligations of Spanish subjects whenever they placed themselves under the juris- diction of the Spanish Government. Again, in 1853 the American minister at Berlin was instructed that the naturalization laws of the United States assumed that a person could by his own acts divest himself of allegiance to the government of the country where he was born, and contract a new allegiance to another State ; but if a native Prussian naturalized in the United States returned to Prussia, the United States could not protect him from the Prussian laws. In 1859, however, the American views appear to have changed. In that year a similar question arose between the same governments. It was then laid down by the United States' authorities that if a native Prussian were naturalized in the States, his allegiance to his native country would be severed for ever ; should he return to his native country, he would do so as an American citizen and in no other character. In 1868 an Act of Congress was passed, declaring that the right of expatriation was an inherent right of all people, and enacting that all naturalized citizens of the United States should, when in a foreign country, be entitled to receive from their govern- ment protection similar to that accorded to native-bom subjects in the like circumstances. As to the conditions on which naturalization will be allowed by the States to which the applicant seeks to affiliate himself, these vary in different countries. According to the law of Great Britain, any foreigner who has resided in the United Kingdom for five years, or has for that period held service under the Crown, can obtain a certi- ficate of naturalization from one of the principal Secretaries of State ; he is then to be considered a British subject for all purposes, except that when in his country of origin he is not to be so considered, unless he has ceased to be a subject of that country, either in accord- ance with its laws or under a treaty. In the United States a foreigner must make a declaration on oath of his intention to become naturalized ; after the lapse of two years from the date ^ of this declaration and after five years' residence in the United States, he becomes a United States citizen. In France, a foreigner who has obtained permission to become domiciled in France is entitled to letters of declaration of naturalization after three years' residence. In Germany, naturalization can only be conferred by the high administrative authorities ; the applicant must show that he Aliens — Nationality. 59 is at liberty, under the laws of his native country, to change his nationahty, or, if he is a minor, that his father or guardian has given him the requisite permission, that he is leading a respectable life, that he is domiciled in Germany, and that he has the means of livelihood. CASE OF LUCIEN ALIBERT. Tew,]}. 1852. [U. S. Senate Documekts, 1859—60, Vol. II., p. 176.] Case.] Lucien Alibert, a French subject, went to America when eighteen years of age. He was naturalized at twenty- six, and returned to France at thirty-three, when he was arrested as an insoumis. He pleaded naturalization in America, but was convicted. Subsequently, however, the sentence passed on him was remitted, on the ground that more than three years had elapsed between the time when he was natura- hzed and the date of his return to France. Case of Lucien Alibert: U. S. Senate Documents, 1859—60, VoL II., p. 176. In countries where military service is compulsory, naturalization in fraud of this is either prohibited, or renders the offender liable to imprisonment if he returns, and forfeiture of all property subsequently acquired in his native country. By the law of France, every French- man is subject to the obligation of military service, and if he emigrates without having served his time in the army, he is liable to a penalty. An insoumis, or person who fails to join his standard when called upon, ceases to be liable to the conscription on acquiring a foreign nationality, although he still remains subject to the penalty for evading the military law. If he remains abroad for three years after naturalization, his offence becomes purged by prescription, and he may return to France free from liability. By the law of Prussia, every Prussian subject is liable to military service, which cannot be performed by deputy. By the Prussian Penal Code, any one 60 Cases and Opinions on International Law. emigrating without permission, in order to avoid military service, is liable to fine and imprisonment, and remains, notwithstanding, liable to perform military service, if he returns. DOMICILE— CIVIL STATUS. THE "INDIAN CHIEF." Temp. 1800. [3 C. EoB. 12.] Case.] In 1795, during war between Great Britain and Holland, the "Indian Chief," a vessel belonging to one Johnson, sailed from London to Madeira, and thence to Madras, Tranquebar and Batavia. On the return voyage the master put into Cowes for the purpose of receiving orders respecting a cargo taken in at Batavia. Here the ship was arrested on the ground that she was the property of a British subject and had been engaged in an illegal trade with the enemy. It appeared that Johnson had been born in America before the War of Independence, that he then came to reside in England, and had engaged in commerce here between 1785 and 1797. During this time the Court considered that he had undoubtedly acquired an English domicile, and had become subject to English municipal law. It appeared, however, that in 1797, before the capture of the vessel, he had left this country and returned to the United States. The Court on this held that his character as an American citizen had reverted, and that the vessel was consequently not liable to con- demnation. Judgment.] Sir W. Scott in giving judgment stated that if a person went to another country and engaged in trade and resided there, he was by the Law of Nations to be considered as a merchant of that country. But as Mr. Johnson's charac- Domicile — Civil Status. 61 ter as a British merchant was founded on residence only, it must be held that from the moment he turned his back on the country where he had resided he was in the act of resuming his original character, and was to be considered as an American citizen. The character that was gained by residence ceased with residence. It was an adventitious character which no longer adhered to him from the moment that he put himself in motion hona fide to quit the country %ine animo revertendi. A question arose in the same case as to the liability of the cargo and the nationahtj' of its owner. The latter appeared to have acted as American Consul at Calcutta, and to have engaged in trade there. After some discussion as to the British authority in India, it was pointed out in the judgment that as the credentials of the Consul were addressed to the British Government, and not to the Mogul, he must be con- sidered as a British merchant, and that his property, having been taken in trade with the enemy, must be held liable to confiscation. The Indian Chief, 3 C. Bob. 12. International Law recognizes two stat4s, a political status, by which a man becomes a member of some particular State, whether he resides in that State or not ; and a civil status, by which a man becomes in- vested with certain municipal rights and duties. The latter character is determined by his domicile. It is the law of domicile which regu- lates such questions as legitimacy, minority, capacity to contract, and capacity to hold property. Such matters fall within the domain of private International Law, or the Comity of Nations. The question of domicile is mainly important in public International Law as deter- mining enemy-character in time of war, and the consequent liability of ships and property captured at sea. Domicile has been defined as a man's principal place of residence. It is the place where he has his home, " the centre of his jural rela- tions " (y). Every man, until he is sui juris, is presumed to have the domicil of his father if legitimate, of his mother if illegitimate. But if the paternity of an illegitimate child is fixed, the father's domicile attaches to him. This has been called domicile of origin. When a (y) Savigny, Des Heutigen Eamischen Reclits, VIII., 58. 62 Cases and Opinions on International Law. man becomes sui juris, it is competent to him to select another domicile. For this it is necessary that he should voluntarily take up his residence at a particular place, with intent to remain there for an unlimited time. This constitutes a new domicile, which, so long as the residence continues, suspends the operation of the law of his earlier domicile, and determines the character of his civil rights and duties for the time being. Should the domicile of choice, however, be positively put an end to without a new domicile being acquired, the law of the domicile of origin revives, and continues to govern his relations, until a new domicile is fixed on (a). The difficulty lies not so much in determining the principles of law applicable to this subject, as in applying them. With regard to enemiy-charaoter in time of war, it must be remarked that an individual is not tied down to the domicile in which he is found at the beginning of a war. So soon as he actually removes elsewhere, or takes steps to effect a removal, in good faith and with- out intention to return, he severs his connection with his original domicile. But such change, on outbreak of war, is scrutinized very closely. In case of capture, the onus of proof is on the claimant. The change of character is, however, much easier when it is from an ac- quired domicile to domicile of origin, than when this is reversed. THE "PORTLAND." Temp. 1800. [3 C. KOB. 41.] Case.] During war between Great Britain and France, at the close of the last century, the " Portland " was seized on the ground that the owner of part of the cargo was an enemy- subject. It appeared that Mr. Ostermyer, the person in question, was a German who had a house of business at Ostend, within the enemy's territory, and also a house at Hamburgh, not within it. The transaction being connected (a) This, though settled by the cases, law. The preference shown in the is very doubtful as a principle, for cases for the latter seems to be a sur- ZojicaZ?2/ the domicile a man voluntarily vival of the old confusion between chooses should be preferred to a domi- nationality and domicile, cile that he only has by operation of Domicile — Civil Status. 63 witli the Hamburgh house, it was held that the cargo was not liable to condemnation. Judgment] Sir W. Scott in giving judgment stated that the consequence of Mr. Ostermyer's being engaged in trade in Ostend, could not be extended to the trade which he was carrying on at Hamburgh, which was unconnected with the Ostend trade. In the present case there was a neutral residence ; the nature of the transaction and the destination were perfectly neutral. The fact of Mr. Ostermyer's trading to Ostend could not affect his commerce in other parts of the world, unless it could be said that trading in an enemy's commerce made him as to all his concerns an enemy, or that being engaged in a house of trade in the enemy's country would give an enemy-character to all his transactions. But there was no case or principle to support such a proposition. The consequence of his having connection at Ostend must be limited to his Ostend trade, and his other trade must be exonerated. The Portland, 3 C. Eob. 41. A person, though not resident in a country, may be so associated with it, through having, or being a partner in a house of trade there, as to be imbued with an enemy-character in respect of property connected with that trade. This is called commercial domi- cile. The application of this rule is not modified, according to the practice of England and the United States, by the fact that the person falling under its operation is a consul for either a neutral or a belligerent. A curious illustration of this liability in virtue of com- mercial domicile is afforded by the case of the " Jonge Klassina " (5 C. Eob. 297). In this case it appeared that, during war between Great Britain and Holland, one Eavie, who had business both at Birmingham and Amsterdam, had imported goods from Holland under a licence accorded to him by the British Government, the licence being confined to the import of goods belonging to him (pre- sumably as a Birmingham merchant). In the present case it appeared that M. Eavie was the exporter from Holland as well as the importer into England. It was laid down in the judgment that, if a man had mercantile concerns in two countries, and acted as a merchant of both, he must be hable to be considered as a subject of both with regard to the transactions originating respectively in those countries. 64 Cases and Opinions on International Law. It was held that, under the circumstances, the licence did not protect the transaction so far as regarded the exportation by Eavie of goods from Amsterdam, which belonged to him as a Dutch merchant, and confiscation of these goods was decreed. But while, on the one hand, domicile in a belligerent country involves these liabilities, on the other hand, domicile in a neutral country, even on the part of a natural-bom subject of either belligerent, not only exempts his property from capture as enemy-property by the other, but also entitles him to carry on trade with that other without incurring any liability towards his native country on the ground of trading with the enemy. Thus in the case of the " Danous " (cited in 4 C. Eob. 255), a British subject domiciled in Portugal was allowed the benefit of Portuguese character so far as to protect a trade carried on by him with Holland, although the latter Power was at war with Great Britain. Until naturalization, however, it is not permitted to a natural- born subject to engage in war against his native country. CASE OF MR. MACKETT. Temp. 1863. [Halleck's Inteenational Law, Vol. I., p. 375.] Case,] In 1863 Mr. Mackett, a natural-born British subject, then resident in the United States, was arrested. He had not been naturalized, and he applied for redress to the British Government. It appeared that he had, while in the United States, voted at elections, and on this ground the British Government declined to interfere. Case, of Mr. Mackett : Halleck's International Law, Vol. I., p. 375. During the American civil war a question arose as to the liability of aliens resident in the United States to serve in the army of that ' country. Lord Lyons was instructed that there was no principle of International Law requiring them to do so. It was pointed out by the British authorities that persons taking part in the war in ques- tion might be considered rebels, in addition to being exposed to the ordinary vicissitudes of war ; but it was at the same time determined Ambassadors — State Agents. 65 to leave British subjects domiciled in the country under all liabilities imposed by its laws. The more reasonable rules, according to Bluntschli, are : (1.) Aliens are not obliged, without their own consent, to serve in a force intended for ordinary national or political objects ; (2.) They are obliged to help to maintain social order where the action required of them is kept within the bounds of police as distinguished from political action ; (3.) They may be compelled to defend the country when it is threatened by an invasion of savages or uncivilized nations (6), A]\]BA88AD0RS— STATE AGENTS. LESLEY, BISHOP OF ROSS. Temp. 1571. [SoMBEs' Tracts, 2nd Edition, by Scott, Vol. I., p. 186.] Case.] In the reign of Elizabeth, John Lesley, Bishop of Ross, was concerned with others in furthering a scheme for the marriage of Mary Queen of Scots with the Duke of Norfolk. When that miscari-ied, he engaged in other enterprises for Mary's relief. He was imprisoned by the English Government, but was subsequently liberated on condition of his leaving the kingdom. Opinion.] The Bishop of Ross having claimed privilege as Mary's ambassador, notwithstanding that Mary was a prisoner in England, the crown lawyers were consulted as to this contention, and they expressed the following opinion : — 1st, that an ambassador that raises rebellion against the prince to whom he is sent has forfeited the privileges of an ambassador as such, and is liable to punishment; 2ndly, that the agent of a prince, deposed from public authority, and in whose stead another is substituted, cannot challenge the privileges of an ambassador; 3rdly, that if a prince comes (b) Bluntschli, § 391. 66 Cases and Opinions on International Law. into another's kingdom and is imprisoned there, he may have an agent if he has not forfeited his principality, but whether that agent be reputed an ambassador depends upon the authority of his commission ; 4thly, that a prince may forbid entrance into his kingdom to such an agent, and may command him to leave the kingdom if he do not keep himself within the bounds prescribed to ambassadors, but the agent may, in the meantime, enjoy the privileges of an ambassador according to the authority deputed to him. Lesley, Bishop of Ross : Somers' Tracts, 2nd Edition, by Scott, Vol. I., p. 186. This case is cited as sho-wing the attitude of the English lawyers towards ambassadorial privilege at the end of the sixteenth century. It would seem that at Common Law ambassadors were liable for oflfences committed against the Sovereign to whom they were ac- credited. Later oases, however, show that municipal law has in this re- spect been brought into harmony with International Law. Thus' in the same reign Mendoza, the Spanish ambassador, having taken part in a conspiracy, the object of which was to dethrone the Queen, was arrested by order of the English Government. A question having been raised as to whether he was amenable to English jurisdiction, an opinion was given by Albericus Gentilis and Francis Hotman to the effect that an ambassador, who had been concerned in a conspiracy against the Sovereign to whom he was accredited, could not be put to death, but must be remanded to his own Sovereign for punishment. In accord- ance with this opinion, Mendoza was sent out of the country (c). The privileges of an ambassador at International Law may be grouped under two heads, inviolability of person and exterritoriality. The inviolability of his person commences when his public character has been proved and recognized. No active force can in general be exerted against him, the only exception being where he commits a great crime and refuses to depart on request. Even in that case he must be removed without personal injury. He is, in general, exempt from the criminal jurisdiction of the country to which he is accredited (cc). As to civil jurisdiction, he is to be regarded as in the same position {c) Camden's History of England, Vol. II., p. 497. (ec) But see Gyllenbourg's Case, p. 68. Ambassadors — Stale Agents. 67 as an absent stranger, the only exceptions to the rule being : (1.) In respect of acts committed otherwise than in his official capacity ; (2.) Where he is a subject of the State to which he is accredited ; (3.) Where he is in the service of that State ; (4.) Where he has volun- tarily recognized the jurisdiction (ccc). The exemption from local jurisdiction extends to his family and the members of his suite. His hotel and goods are also exempt from the jurisdiction, the exemption as to his property, however, extending only to that held by him in his official capacity. Moreover, all goods imported by him for his personal use are free from imposts, and liberty of worship in his hotel is always afforded to him, even where his religion is not otherwise tolerated in the country. The jurisdiction of an ambassador over his suite is generally con- fined, in modern times, to subordinate matters. The precise limits of ambassadorial privileges may be gathered from the appended cases. Before passing to these, it may not, perhaps, be out of place to mention that, under the regulations of the Congress of Vienna, 1815, and that of Aix-la-Chapelle, 1818, four classes of diplomatic agents are recognized. These, in the usual order of precedence, are ; — (1.) Ambassadors, papal legates, and nuncios ; (2.) Envoys and ministers plenipotentiary accredited to the Sovereign ; (3.) Ministers resident accredited to the Sovereign ; (4. ) Charges d'AfFaires accredited to the Minister for Foreign Affairs. Ministers from different countries in- cluded in the same class take precedence in the order of the notifica- tion of their arrival ; family ties and ties of alliance between the Sovereigns give no ground of precedence. With reference to papal legates, Roman Catholic Powers formerly gave them precedence, but other Powers did not conform to this practice, and Great Britain expressly refused to allow it. Sometimes ministers of the second order have precedence given to them as a matter of courtesy. All these classes of diplomatic agents are entitled to the immunities above described. (ccc) See cases of Czar's Ambassador, and Taylor v. Best, with notes, pp. 70—73. 68 Cases and Opinions on International Law. GYLLENBOURG'S CASE. Temp. 1717. [Db Maktens, Causes Cblbbees, Vol. I., p. 97.] Case.] In 1717, Count Gyllenbourg, the Swedish Am- bassador to England, was arrested for complicity in a plot against the Hanoverian dynasty. Instead of being immediately sent from the kingdom he was detained here for a time, the detention being partly due to the fact that similar measures had been adopted by the Swedish Government towards the English Minister in Sweden. Some dissatisfaction at the arrest was at first expressed by other ambassadors accredited to England, but these expressions were subsequently with- drawn when the facts of the case were known, the Secretary of State having pointed out that what had been done was necessary for the peace of the kingdom. In consequence of the mediation of other Powers, both ambassadors were subsequently released. Gyllenbourg's Case : De Martens, Causes Celebres, Vol. I., p. 97. A diplomatic agent cannot, as a rule, be tried, or even arrested, for a criminal offence by the State to which he is accredited. If he com- mits a crime, application should be made to the State from which he is accredited to recall him, or he may be ordered to leave at once, without communi;pation being previously made to his Government. Gyllenbourg's case shows that this principle of International Law is subject to modification in cases of extreme political necessity. Ambassadors — State Agents. 69 PANTALEON SA'S CASE. Temp. 1653. [ZOUCH, SOLUTIO QtJ^STIONIS VETBEIS ET KOV^, SIVB DE LEGATI DBLINQUENTIS JUDIOE COMPBTENTB DISSBETATIO, IN PK^PATIOME.] Case.] Pantaleon Sa, the brother of the Portuguese Am- bassador under Cromwell, and one of his train, fell into a quarrel with one Gerrard, and wounded him, the latter's life only being saved bj' the interference of a by-stander. The next night Sa came to the same place with fifty of his fellow- countrymen ; they wounded a great many persons and killed one. Opinion and Eesult.] The matter was referred to a special Court, who held that Sa was amenable to our laws. He was indicted, tried, found guilty and suffered death. It appears from a report of the case, that if Sa had been an ambassador his privilege would have protected him, but a distinction was made between the principal and members of his train. Pantaleon Sa's Case: Zouch, Solutio qusestionis veteris et novas, sive de legati delinquentis judice competente dissertatio ; in prsefatione. In spite of the decision in Sa's case, the exemption from local juris- diction conferred on an ambassador is usually extended to members of his train. It appears, however, that he would not be allowed to receive an accused person or fugitive criminal into his house with the view of giving him protection. Thus, in 1867, a Eussian subject, not in the employ of the JRussian ambassador, attacked and wounded an attacks in the Eussian embassy in Paris. The Eussian Government requested his surrender ; the French authorities refused to surrender him; firstly, because the fiction of exterritoriality could not be extended to embrace his case, and, secondly, because the immunities of the house, if any, had been waived by the police having been called in (d). If one of the suite commits a crime outside the ambassador's house, the proper course for the local authorities to adopt is to {d) Dana's note to Wlieaton, No. 129. 10 Cases and Opinions on International Law. ieliver him up to the ambassador, who should collect the evidence -elating to the case and send the accused to his own Government for ;rial. But though these are the strict rights of the ambassador, the nore convenient course is for the ambassador to send the offender to ;he local tribunals for trial. It should be noted that the English law on this subject is excep- ;ional. Some illustration of this is aiforded by the action of the authorities in the case of a servant of Mr. Gallatin, the United States ninister in London. This servant having committed an assault, mtside the limits of the ambassador's house, the local authorities >laimed jurisdiction with reference to the case. The Government klso claimed the right of arresting the offender within the minister's louse, but admitted that, as a matter of courtesy, notice should be ^iven of the intention to arrest, so that either the offender might be voluntarily handed over by the ambassador, or, failing this, might 3e arrested by the local authorities at a time convenient to the ninister (e). CASE OF THE CZAR'S AMBASSADOK. Tem;^. 1708. [Phillimohe's International Law, Vol. II., p. 228,] In 1708, the ambassador of Peter the Great in London fras arrested there for a debt of £50. Instead of applying for a discharge on the ground of privilege, he gave bail m the action, but on the following day complained to the ^ueen. Those who were concerned in the arrest were then jxamined before the Privy Council, and thereupon committed ;o prison and prosecuted by information in the Court of Queen's Bench at the suit of the Attorney-General. At the trial the question of law was reserved for argument before the judges, but was never determined. Meanwhile, to mitigate the indignation of the Czar, the Government of the day caused (c) Hall's IiitematioEial Law, 'Ziid Edition, p. ISl. Ambassadors — State Agents. 71 an Act to be passed precluding such proceedings in the future. Case of the Czar's Ambassador : Phillimore's Inter- national Law, Vol. II., p. 228. Coke, the only authority as to the earlier law on this subject, lays down that ambassadors are liable in civil cases on contracts jure gentium ; but even if the ambassador was at Common Law liable to civil jurisdiction, it does not follow that he was liable to arrest. Any doubt on this subject, however, is set at rest by stat. 7 Anne, c. 12. By this statute all proceedings for the arrest and imprisonment of a foreign ambassador or minister, or his domestic servant, or for the seizure of the goods or chattels of any such person, are void. By section (5) no merchant or trader within the meaning of the Bank- ruptcy Laws in the service of an ambassador or minister is to have the benefit of the Act, and no person is liable to the penalties imposed by the Act for arresting any servant of an ambassador or foreign minister unless the name of the servant is registered in the office of one of the principal Secretaries of State as provided by the Act. With regard to the interpretation ,of this clause, it was held by Lord Mansfield in Triquet v. Bath (3 Burr. 1478), that proof of actual lond fide service was enough to secure exemption, and that the fact of the defendant in the case having previously been a trader in Ireland would not bring him within the exception set up by the 5th section of the Act. Passing from English Law to the Law of Nations, it would seem that, according to generally accepted rules, an ambassador is not liable to any form of civil execution. Thus, in an im- portant case mentioned by Wheaton (/), it appears that the United States Ambassador at Berlin had rented a house of a Prussian sub- ject- A question arose, whether a lien, for rent and for damage done to the house, could be enforced against the goods of the am- bassador left in the house, this lien being annexed to the contract of tenancy by the Prussian Civil Code. Prussia contended that the right of detention was a part of the contract, attached to it by the Prussian Civil Code, and that the ambassador by entering into the contract had resigned an immunity which he otherwise might have claimed. The United States rephed that, if this principle were true, it might be contended that an ambassador rendered himself liable to {/) Wheaton's International Law, English Edition by Boyd, p. 287. 72 Cases and Opinions on International Law. an-est by accepting a bill of exchange. The goods were ultimately restored on payment being made for the damage done. Prussia, however, propounded the question, whether an ambassador who gave goods in pledge could recover them merely on the ground of privi- lege. The United States in their reply distinguished between an express pledge, where it was admitted that he could not recover the property, and an implied pledge given by the municipal law of the country, by which an ambassador would not be bound. TAYLOR V. BEST AND OTHERS. Temp. 1854. [14 Com. Bench, 487.] Case.] This action was brought against certain persons upon a contract entered into in Belgium. Amongst the defendants was M. Drouet, the Belgian Secretary of Lega- tion. M. Drouet duly entered an appearance, and the case was proceeded with till ready for trial, the defendants having even obtained a rule for a special jury. A summons was then taken out on M. Drouet's behalf, calling upon the plaintiffs to show cause why all further proceedings should not be stayed or his name struck out of the proceedings, on the ground that he was a foreign minister. Judgment.] It was held, first, that a secretary of legation was entitled to all the privileges of an ambassador ; secondly, that he did not forfeit his privilege of immunity from jurisdic- tion by engaging in mercantile pursuits here ; but, thirdly, that having voluntarily attorned to the jurisdiction, M. Drouet was estopped from setting up his privilege, though in the event of judgment being given against him, no execution could be taken out against either his person or property, this beings precluded by the Act of 7 Anne, c. 12. Taylor v. Best, 14 Com. Bench, 487. Ambassadors — State Agents. 73 The immunity of an ambassador from civil execution has already been dealt with. In Taylor v. Best the Court had to determine how far an ambassador was amenable to the earlier stages of civil juris- diction. The result was that, whilst fully recognising his immunity from civil execution, it yet held that he might under certain conditions be within the local jurisdiction. The law laid down in this case, how- ever, has since been modified by the decision in the case of The Mag- dalena Steam Navigation Co. v. Martin (28 L. J., Q. B., N. S. 310). In this case, the defendant, a foreign ambassador, was sued for calls on shares in a company in liquidation. The defendant pleaded his privilege as foreign ambassador. On demurrer judgment was given for the defendant, it being laid down that a public minister accredited to the Queen by a foreign State was privileged from all liability to be sued here in civil actions. As to a suggestion that the action might be prosecuted to judgment with the view of ascertaining the amount of the debt, the Court held that such a view was untenable ; that such proceedings would be anomalous, and would violate the principle laid down by Grotius {g), " Omnis coactio abesse a legato debet ; " they would produce the most serious inconvenience to the defendant, and would hardly be of any benefit to the plaintiff. This case seems to establish the entire immunity of an ambassador from civil jurisdiction. Neither is there, it would seem, any power to compel a diplomatic agent or a member of his suite to attend the local tribunals, or even to give evidence concerning any matter. When evidence is required from an ambassador or a member of his suite, the practice is to apply to the ambassador and, although he may decline to furnish it, yet it is not customary for him to assert this privilege. The evidence is generally taken before the Secre- tary of Legation, or some official whom the minister consents to receive, and is transmitted to the Court in writing. When, however, by the local laws, evidence must be given orally before the Court in the presence of the accused, it is usual for the minister to submit himself for examination in the ordinary way. On the trial of Herbert for murder at Washington, in 1856, the Minister for the Netherlands, an important witness, refused to appear in Court at the request of the United States Government. His own Government also refused to instruct him to appear as a witness, although requested to do so by the United States. The United States Government, whilst admitting his right to decline to appear, demanded his recall (h). (g) De Jure Belli et Pacis, 1. 2, c, 18, ». 9. (h) Calvo, § 583—4, and note. 74 Cases and Opinions on International Law. VIVEASH V. BECKER. Temp. 1814. [3 Mattlb & Selwtn, 284.] Case.] The defendant, a merchant resident in London, was arrested, in 1814, for a debt of 548Z., and compelled to give a bail bond. A rule nisi for delivery up of the bond was obtained on his behalf, on the ground that he had been appointed Consul to the Duke of Oldenburg, and was acting in this capacity. Judgment.] On the application to make the rule absolute, Lord EUenborough expressed an opinion that a consul was entitled to limited privileges, such as safe conduct, and if this was violated, his Sovereign had a right to complain ; but he stated that it had been laid down that a consul was not a public minister, and was not entitled to the jus gentium. The Act of Anne quoted above, which mentioned only ambassadors and public ministers, must be considered as declaratory, not only of what the Law of Nations was, but of the extent to which it should be carried. A different construction would lead to enormous inconvenience, for consuls had the right of creating vice-consuls, and they, too, must have similar privileges. Thus a consul might appoint a vice-consul in every port to be armed with the same immunities, and be the means of creating an exemption from arrest indirectly which the Crown could not grant directly. Under these circumstances it was held that no privilege existed, that the defendant was liable to arrest, and that the application must therefore be refused. Viveash v. Becker, 3 Mau. & Sel. 284. ' Consuls are commercial agents appointed by commission or patent by a State in foreign parts. Their duties are mainly to advise and protect the interests of traders belonging to the State appointing Ambassadors — State Agents. 75 them, and to collect and remit to their Government information on mercantile matters. Consuls, on appointment, usually receive an exequatur, or confirma- jtion of their commission, from the State within whose territory they are to act. The exequatur generally takes the form of letters patent signed by the Sovereign and countersigned by a Secretary of State. Consuls are usually exempt from taxation, and from having soldiers quartered on them, and their official papers are exempt from seizure. An outrage on a consul would be regarded as more serious than that on an ordinary subject. Beyond this, however, consuls have no privilege. They are not, at International Law, entitled to the privi- leges of ambassadors, or to any immunity from local jurisdiction. In Eastern countries, however, by convention, the position of con- suls has been assimilated to that of ambassadors (i). It is worthy of remark that a person carrying on trade in a belli- gerent country is not exempted from the liabilities of a belligerent trader on the ground of his acting as consul for a neutral State (Ic). McLEOD'S CASE. Temp. 1842 [Paeliamkntabt Papees, 1843, Vol. LXI.] Case.] McLeod was a British officer who had taken part in the attack on the " Caroline" (Z). In the course of this attack a United States citizen, Durfee by name, had been killed. McLeod was afterwards arrested in the United States, and charged with the murder. The British Minister at Washington demanded his release, calling attention to the fact that the destruction of the ship was a public act, done by persons in the employ of Her Majesty's Government, obeying superior orders, and that the responsibility, if any, rested with Her Majesty's Government. The United States Government replied that as the matter was in the hands of the Courts, it was out of (i) For the status of consuls in the [V) Sore-nsenv. The Queen, 11 Moo. East, the reader is referred to Philli- P. C. C. 141. more's International Law, Vol. II., (t) An account of this case will he pp. 312—316. fo™ [8 Teem Ebpoets, 548.] Case.] The plaintiff in this case had effected a policy of insurance on some madder then lying at Eotterdam. The madder was to be shipped on board a vessel called the "Elizabeth," and consigned to the plaintiff's agents at Hull. The policy was effected, and the consignment made after the outbreak of war between Great Britain and Holland. On her voyage to Hull, the " Elizabeth " with her cargo, was captured by a French vessel and condemned. The plaintiff then sought to recover on the policy. Judgment] The Court held that the policy was invalid as being in furtherance of illegal trading, it being a principle of the Common Law that trading with an enemy without the king's licence was illegal ia British subjects. Votts V. Bdl, 8 Term Eeports, 548. The effect of an outbreak of war on existing contracts and debts has been already described. This case is cited as showing the effect of illegal trading according to English law on contracts made in furtherance thereof. In Bell v. Reid (1 M. & S. 726), however, it was held that a policy of insurance entered into by a British subject domiciled in a neutral State, in regard to a ship owned by him, but trading to an enemy port was valid, and could be recovered on. ANTOINE V. MORSHEAD. Tem/p. 1815. [6 Tattnx. 237.] Case.] This action was brought upon five Bills of Exchange, drawn on the defendant by his father, a British subject 118 Cases and Opinions on International Law. detained in prison in France during war between that country and Great Britain. The bills were made payable to British subjects, who were in like manner detained prisoners, and were by them indorsed to the plaintiff, who was a French subject and a banker at Verdun, and accepted by the defendant. A verdict having been found in favour of the plaintiff, a rule nisi was moved for on behalf of the defendant, on the ground that the contract was one with an alien enemy, and was, therefore, not merely suspended by the war, but absolutely void. Judgment] Gibbs, C.J., in giving judgment, after remarking that the biUs were not drawn by an alien enemy, stated that two principles appeared from the cases cited on behalf of the defendant, namely (1), that a contract made with an aUen enemy in time of war, of such a nature as to endanger the secu- rity or to be against the policy of the country, was void ; and (2), that however valid a contract originally might be, yet if one of the paxties to it became an alien enemy he could not sue. In the latter case, the Crown might, during the war, lay hands on the debt and recover it ; but if it did not do so, then on the return of peace the rights of the contracting alien were restored and he might himseK sue. Passing to the question as to whether the bills came into the plaintiff's hands by a good title, the learned Chief Justice held that the indorsement to the plaintiff conveyed to him a legal title in the biUs on which the king might have sued in the time of war, and this not having been done, the plaintiff might sue after peace was proclaimed. The rule was accordingly refused. Antoine v. Morshead, 6 Taunt. 237. This case seems to point to a modification of the ordinary rules as to contracting with an alien enemy. It will be remarked, however, that the bills sued on were not in their creation contracts with alien enemies; also that the plaintiff even as indorsee could not have maintained an action on them during the continuance of the war. Ransom Contracts. 119 The effect of this decision is to enable alien enemies lawfully to provide for the wants and necessities of prisoners detained in the enemy country, and to sue on such contracts on the return of peace. RANSOM CONTRACTS. RIOORD V. BETTENHAM. Temp. 1765. [3 Burr. 1734.] Case.] In 1762, during war between Great Britain and France, the EngHsh ship " Syren," of which the defendant was master, was captured by the French privateer " Badine." The ship was released on the defendant giving a ransom bill for 300 pistoles to the plaintiff, the commander of the French privateer, and leaving Joseph Bell, the mate of the ship, as hostage. Bell died in prison. Subsequently the present action was instituted on the ransom biU. Judgment] It was urged on behalf of the defendant that no such action had been instituted before, that the contract was void on account of the condition of the contracting parties, the plaintiff being at the time of the contract an alien enemy, and that the ransom bill was not an independent contract, the hostage alone being entitled to bring the action. These objec- tions were, however, overruled, and judgment given for the plaintiff; presumably on the ground that such contracts were usually deemed vaUd amongst other nations, and that the hostage was merely left as collateral security (e). Ricord v. Bettenham, 3 Burr. 1734. When a belligerent captures at sea property belonging to his enemy which he is unable to take into port, it is the practice either (e) The grounds of the judgment are not stated. 120 Cases and Opinions on International Law. to destroy the property, or to release it on a ransom bill being given by the master of the prize, a hostage being also left with the captor for the payment of the ransom. On the acceptance of the ransom bill, the vessel is exonerated from all liability to hostile capture by other ships belonging to the captor's country or his allies, provided she keeps to the course prescribed by the contract, and completes her homeward voyage within the time limited by it. The contract itself insures only against subsequent belligerent capture, and not against the perils of the sea, so that the ransom is due, although the vessel be wrecked on her homeward voyage. The practice of giving ransom contracts is, however, sometimes prohibited by Municipal Law. The decision in the case of Ricord v. Bettenham, seems to accord with the rules adopted by most systems of Municipal Law which still allow the practice of giving ransom contracts. According to the practice of France and Holland, the captor, though an alien enemy, can in such case sue on the ransom bill. In the former country, on the return of the ransomed vessel, it is the practice of the Admiralty officers to seize and detain her till the ransom is paid (ee). But so far as English law goes, it has since been decided (Anthon, V. Fisher, 2 Doug. 649, n.), that an alien enemy cannot sue in his own person, even on a ransom contract. In the case of the " Hoop " (1 C. Eob. 201), Sir Wm. Scott remarked, that even in the case of ransom contracts, an alien enemy was not permitted to sue in his own proper person, but payment was enforced by an action brought by the imprisoned hostage in the courts of his own country for the recovery of his freedom. In England the practice is at present regulated by the Naval Prize Act of 1864 (/), sec. 45. By this section power is given to Her Majesty in Council to regulate and allow ransom contracts under such conditions as may be thought fit ; such con- tracts if made are to be within the exclusive jurisdiction of the Court of Admiralty ; whilst penalties are inflicted in case of the violation of such conditions. (ee) Pothier De Propri^tS, No. 144. (/) 27 & 28 Vict. c. 25. Capture in War. 121 CAPTURE IN WAR. THE "VENUS." Temp. 1814. [8 Ceanoh, 253.] Case.] This ship and her cargo were the property of certain United States citizens who had settled in Great Britain, and were engaged in commerce there. The " Venus " sailed from Great Britain in 1812, hefore the declaration of war between the United States and Great Britain could have become known to the shippers. In the course of her voyage she was captured by the United States privateer " Dolphin," and brought in for adjudication. The question in the case was, whether the property of the claimants, citizens of the United States, settled in Great Britain, and engaged in commerce there, which had been shipped before they had a knowledge of the war, but captured after the declaration of war, ought to be condemned. Judgment.] It was stated in the judgment that the writers on the Law of Nations distinguished between a temporary resi- dence in a foreign country for a special purpose, and a residence accompanied with an intention to make it the party's domicile or permanent place of abode. In the latter case the domicile involved a consequent liability in the event of an outbreak of war. The Court found that the doc- trine of the prize courts and the Common Law courts of England were in harmony with these principles. It was there- fore held that if a citizen of the United States established a commercial domicile in a foreign country, between which and the United States war afterwards broke out, his property, even though shipped before the declaration of war, would be hable to capture, his residence in the enemy country giving it a hostile character. The property was therefore condemned. The Court, however, only laid down the rule with reference to so much of his property as was connected with his residence in the enemy's country. The converse proposition was also 122 CcDses and Opinions on International Law. adopted, that if a belligerent subject acquired a commercial domicile in a neutral State, he would be considered a neutral by both belhgerents in reference to his trade. Mr. Justice Marshall, however, dissented from the view entertained by the majority of the Court. The Venus, 8 Cranch, 263. Enemy character in time of war, so far as the liability of ships and goods to capture by sea is concerned, is determined by various circum- stances. The primary test is domicile in the enemy's country. This may be a permanent domicile coupled with political status, or it may be a domicile involving merely a civil status (ff)as enemy subject. In either case, however, it renders both ships and goods of the person so domiciled, liable to capture by the other belligerent. From a reference made in the case of the "Diana" (5 C. Eob. 60) by Sir W. Scott to the case of Mr. Whitehill, it appears that during war be- tween Great Britain and Holland, an English . subject arrived at St. Eustatius only a few days before the place was invested by Admiral Rodney's forces. It was held that, though mere tempo- rary sojourn in the enemy's country for the purposes of health or pleasure would not establish domicile or imbue with a hostile cha- racter, yet if a person went to a country with the intention of carry- ing on business there, he acquired a domicile as soon as he established himself, because the conduct of a fixed business necessarily implied an intention to remain permanently. In such a case, therefore, mere recency of establishment will not preclude the acquirement of a hostile character. Commercial domicile, or having a house of commerce in the enemy's country, renders liable all property connected with that particular establishment, but otherwise leaves the neutral character unaffected (the " Portland," cited p. 62, supra). Possession of soil within enemy territory renders liable the produce of the soil, whilst stiU in the hands of the owner of the soil, even though he be domiciled elsewhere (the "Phoenix," p. 123, infra). Engaging in the enemy's trade, or sailing under the enemy's flag or passport, will also attach a hostile character to both ship and goods, subject to the exception set up by the case of the "Palme" (referred to on p. 131, infra). With regard to domicile, the broad principle underlying the case of the "Venus," viz., that property of all persons domiciled in the (^) As to the distinction between civil and political status, see p. 61, supra. Capture in War. 128 enemy's country, even though natural-bom subjects of the belligerent effecting the capture, is liable to condemnation, — is indisputable. But the propriety of the decision, in view of the special facts of the case, has been questioned. It was suggested by Marshall, C. J., that where a merchant established himself for commercial purposes in a foreign country, he must be presumed to intend to remain there only so long as he could do so without violation of his duty towards his native country, and that when war broke out between the two countries, he must be presumed to intend to withdraw from the country of his adoption. There is no doubt, however, that if he continues in the enemy country, or delays his return, or if there are other circum- stances rebutting this presumption, his property becomes thereupon liable to capture. A qualification of the rule laid down in the " Venus " is illus- trated by the case of the " Ocean " (5 C. Rob. 90). In that case a claim was made on behalf of a British-born subject, who had settled as a merchant at Flushing, but who, on the appearance of approach- ing hostilities, had taken means to remove himself and return to England. He had been prevented from removing personally by the violent detention of aU British subjects who happened to be within the enemy's territory at the outbreak of the war. Sir Wm. Scott in giving judgment stated, that he thought it would under the circum- stances be going farther than the principle of law required, to hold that the claimant, by his former occupation and his constrained resi- dence in France, had acquired a hostile character. In the case of relinquishment of hostile domicile on the outbreak of war, the clearest proof is required by the Courts of the intent to abandon the former domicile, the onus of proof being, on the party who sets up such change of domicile. From the case of the " Indian Chief" (cited p. 60) it seems, however, that where the change is from an acquired domicile to a domicile of origin, less conclusive evidence of intent to abandon is required by the Court, than in cases where there is a relinquishment of the domicile of origin. THE "PHCENIX." Temp. 1803. [5 C. KOB. 20.] Case.] During war between Great Britain and Holland, the "Phoenix" was captured when on a voyage from Surinam to Holland, and brought in for adjudication. The cargo was 124 Cases and Opinions on International Law. claimed on behalf of persons resident in Germany, as being the produce of their estates at Surinam. Judgment] Sir William Scott, in giving judgment, laid it down as a fixed principle of the Court, that the possession of the soil impressed upon the owner the character of the country as far as the produce of the plantation was concerned, whilst this was being transported to any other country, whatever the local resi- dence of the owner might be. In the present case the estates were acquired by descent, and as such they were by no means marked out to any favourable distinction. If they had been a late acquisition, there might have been room for the supposition that they had been acquired whilst the place was in British possession, and that the owner had been induced by that circumstance to form an establishment there under the faith and protection of the British Government. Having fallen by descent on these persons from their ancestors in Holland, these plantations must be considered to carry with them the disadvantages as well as the advantages of the Dutch character. Being the produce of the claimant's own planta- tion in the colony of the enemy, the property must fall under the general law and be pronounced subject to con- demnation. The Phoenix, 5 C. Eob. 20. This case illustrates the principle that property which consists of the produce of estates, situated in the enemy's country, is liable to condemnation as enemy property if, at the time of capture, it still remains in the hands of the owner of the soil. This decision was followed in the American case of Bentzon v. Boyle (The Thirty Hogs- heads of Sugar, 9 Cranch, 191). In this case it appeared that the island of Santa Cruz had originally belonged to Denmark, but had been taken possession of by the British forces. Bentzon, a Danish officer and proprietor of land there, withdrew from the island on its surrender and subsequently took up his residence in Denmark. He still retained his estates in the island, and his agent there shipped Capture in War. 125 some sugar, the produce of the estate, on board a British ship to a commercial house in London on his account. The ship was captured by a United States cruiser during the war between the United States and Great Britain. The cargo was condemned. An appeal was brought against the decree of condemnation, which was, however, affirmed. The Court, in its judgment, stated that the acquisition of land in Santa Cruz bound the claimant, so far as respected that land, to the fate of Santa Cruz, whatever its destiny might be. The general commercial or political character of Mr. Bentzon could not affect the transaction. Although incorporated so far as respected his general character with the permanent interests of Denmark, he was incor- porated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, and though as a Dane he was at war with Great Britain and an enemy, yet as a proprietor of land in Santa Cruz he was no enemy, and could ship his produce to Great Britain in perfect safety. Such produce must therefore be regarded as having a hostile character by the United States, and as liable to condemnation. THE "ANNA CATHARINA." Tetth'p. 1802. [4 C. Bob. 107.] Case.] The "Anna Catharina " was a Danish vessel, and was captured in 1801 by a British cruiser whilst on a voyage from Hamburg to a Spanish port with a cargo of linen, wines and cheese. War existed at the time between Great Britain on the one hand, and Spain and Holland on the other. The cargo appeared to have been shipped under the following circumstances. In 1799 a contract was made be- tween the Spanish Government of the Caracas and Mr. Eobinson, a trader at Cura9oa, for the purchase by the latter of all the tobacco in the warehouses of the Spanish Government at Porto Caballo, La Guayra, and Guyana, pay- ment to be made in flour, dry goods, and specie. Messrs. Sontag & Co., of Hamburg, were entrusted by Eobinson with 126 Cases and Opinions on International Law. the carrying out of this contract, Eobinson taking one-third of the profits. It was sought to condemn the cargo on various grounds. In the first place it was contended that, as Cura§(pa had passed into the possession of the British Crown, the contract must be deemed illegal, as existing between a British subject and the enemy. It was also contended that the cargo having been shipped under a contract with the Spanish Government must be deemed Spanish property ; and finally, that the nature of the contract was such as to impress on the persons carrying it out the character of Spanish traders, and consequently to imbue them with a hostile character. On the other hand, the property was claimed by Messrs. Sontag & Co. on the ground that the property was really vested in them, in which case as neutral property it incurred no liability ; that even if Eobinson had become a British subject, yet the contract not having been illegal in its inception could be vahdly adopted and carried out by a neutral ; and further, that the goods could not be considered as the property of the Spanish Government, because, in the event of the Spanish Government not being willing to accept them they were to take "the chance of the market." Judgment.] Sir W. Scott, in his judgment, after considering the nature of the contract between Robinson and the Spanish Government, which was really the basis of the whole adven- ture, held that the contract, though not illegal in its inception, yet became illegal when, by the British possession of Cura9oa, Mr. Eobinson became a British subject ; but he concluded that the illegahty did not travel with it into the hands of Messrs. Sontag & Co., on behalf of whom the claim was made, and that, therefore, no Hability could be said to be incurred on this ground. On the question as to the character of the pro- perty. Sir W. Scott, after reviewing the circumstances, held that as the cargo was going in time of war to the port of a belligerent under a contract to become the property of the belligerent immediately on arrival, the property must be con- Capture in War. 127 sidered as being in the Spanish Government, and, therefore, as having a hostile character. He added that neither the fact of its being primarily consigned to Messrs. Sontag's agent, nor the possibihty of the Spanish Government refusing the goods was sufficient to preclude this liability. On the question whether the contract did not fix on Robinson and those who adopted it, the character of Spanish traders, Sir W, Scott held that a contract of this kind giving Robinson a monopoly of trading rights, taken in conjunction with the fact that he had a resident agent on Spanish territory for the purpose of carrying out the undertaking, imbued him with a Spanish, and, therefore, a hostile character. It was further held that, as Messrs. Sontag & Co. participated in the benefit of this contract, and acted under arrangements made by Robinson, they must take it subject to its legal consequences, among which was that of liability of the cargo to condemnation in the event of capture by an enemy of Spain. On these grounds, therefore, viz., that the property must be considered as being in the Spanish Government, and that in addition to this the parties must be considered as trading in the character of Spanish merchants, the cargo was condemned, a claim for freight being refused on account of the prevarication of the evidence. The Anna Catharina, 4 C. Rob. 107. Some important rules may be gathered from a consideration of the facts and judgment cited above. In the first place the seizure of the property illustrates the Hability which enemy property was formerly under, even though found on board a neutral vessel ; though this liability no longer exists as between the parties to the Declaration of Paris,1856 (see p. 207, infra). The judgment next contains an im- portant principle as to trading with the enemy. Sir Wm. Scott held that a contract existing between a person domiciled in a place which had passed by conquest into the possession of Great Britain, and a foreign Government at war with Great Britain, became illegal as involving trade with the enemy; but he qualified this rule, by 128 Cases and Opinions on International Law. holding that the transfer of such contract to a neutral, put an end to the illegality accruing on this ground. Another principle deducible from the case is, that a contract giving any person a monopoly of trading rights within the country of an enemy, imbues such person with a hostile character, even though he is domiciled elsewhere. Sir Wm. Scott, indeed, added, " coupled with the fact that he had a resident agent on Spanish soil ; " but it would seem that this is almost a necessary incident of such a privilege. Lastly, the case of the " Anna Catharina," illustrates the liability of goods carried under a contract, to become the property of the enemy, or of enemy subjects, on reaching its destination. On this subject the rule usually adopted is, that when goods are delivered by a consignor to the master of a ship for carriage to the consignee they become the property of the consignee. In time of peace this rule may be modi- fied by agreement. But in time of war the English and American courts will not recognise any modification of this rule as between a neutral consignor and an enemy consignee, so that in their view property consigned to an enemy is considered in the light of enemy property. According to French law the goods in such case ap- parently travel at the risk and peril of the person to whom they belong. The principle established by the Declaration of Paris, 1856, that a neutral flag covers enemy goods, has the effect of modifying the im- portance of the rules determining liability of property to capture in time of war. Formerly a belligerent was entitled to investigate the character of goods found on board a neutral vessel. Now, as between the parties to the Declaration of Paris, the goods must not only have a hostile character, but must be taken on board an enemy vessel, or whilst engaged in the enemy's trade. This, without in any way' overriding the rules indicated above, yet renders them of more limited application. THE "VROW MARGARETHA." Temp. 1799. [1 C. Bob. 336.] Case.] In this case a claim was made by a Mr. Berkeymyer, of Hamburg, to a cargo of brandies, v?hich had been shipped by Spanish merchants and consigned to a Dutch firm. The Capture in War. 129 shipment took place in 1794, before the outbreak of war between Great Britain and Spain. The brandies were trans- ferred to, him in transitu, but before arriving at their destiaa- tion war broke out, and both ship and cargo were captured and brought in for adjudication. Judgment.] Sir W. Scott, in giving judgment, said that where a state of war was existiug or imminent, the property in goods must be deemed to contiuue till actual delivery in those parties in whom it was vested at the time of shipment. He recognised this as a rule of the Court, in the sense that property could not be converted in transitu. If such a rule did not exist, aU goods shipped in the enemy's country would be protected by transfers which it would be impossible to detect. But the transaction in the present case having occurred before the war, it must be adjudged according to the ordinary "rales of com- merce, and there being nothing to raise any suspicion as to the bona fides of the transfer, the cargo must be restored to Mr. Berkeymyer, The Vrow Ma/rgaretha, 1 C. Bob. 336. Property, consigned by an enemy to a neutral will be held liable to condemnation, unless evidence is furnished that the consignee is the real owner. In order that the goods may escape confiscation, it must be shown that the consignee is bound to accept them, and that the consignor can reclaim them only in the event of the consignee's insolvency during transit. With regard to assignment of goods in transitu, both English and American Courts hold all such assignments during war to be invalid, the probability of their being fraudulently intended being considered so high as to amount almost to a certainty. Transfers in transitu up to the outbreak of war are generally valid, but they are invalid when effected in contemplation of war. In the case of the " Jan Frederick " (5 C. Eob. 128), property pur- chased in transitu from a Dutch subject by a neutral in contemplation of the outbreak of war between Great Britain and Holland was con- demned, Sir Wm. Scott laying it down in his judgment that if the con- templation of war led immediately to the transfer, and became the foundation of a contract that would not otherwise be entered into 130 Cases and Opinions on International Law. on the part of the seller, and this was known to the purchaser, even though on his part there might be other concurrent motives, such a contract could not be held good. It was invalid on the same principle as a similar contract made in time of actual war. The object of both contracts was the same, viz., to protect the property from capture, or from the danger of capture, when it was likely to occur ;■ both were for the purpose of eluding a belligerent right either present or expected. Both contracts were framed with the same animus fraudaTidi, and were justly subject to the same rule. THE "SOGLASIE." Temp. 1854. [2 Spinks, Ecc. & Adm. 101.] Case.] The " Soglasie " was originally a Eussian vessel. On the 17th of May, 1854, during the Crimean War, she left Cronstadt with a cargo of wheat for Leith, where she arrived on the 22nd of June. On her arrival at Leith, the ship was seized as enemy property. It was contended that in February, 1854, the " Soglasie " had been sold to Mr. Johann Saraow, a Danish merchant, residing at Messina, when she assumed the Danish flag, and that in June, 1854, there had been a further sale to one Fischer, a merchant at Copenhagen, on whose behalf condemnation was resisted. Judgment] Dr. Lushington, in giving judgment, after remarking that Mr. Saraow, as a merchant of Messina, was not entitled to a Danish character, but was a subject of the King of the Two Sicilies, went on to consider the evidence as to the employment of the vessel after the sale to him. As to this, it appeared that she had been constantly emploj'^ed in the Eussian trade, and that she continued in the same course after the sale as before. Moreover, no evidence was furnished as to the payment of the purchase-money. The ship was therefore pronounced subject to condemnation as Eussian property. Capture in War. 131 No evidence being furnished with respect to the cargo, that Hkewise was condemned. In the course of the judgment, Dr. Lushington remarked that in the present case the transfer was m transitu flagrante bello, and all the authorities denounced such a transaction as illegal. The Soglasie, 2 Spinks, Ecc. & Adm. 101. From this case it will be seen that the Courts have applied similar rules to the transfer to neutrals, during or on the outbreak of war, of ships originally owned by persons having a hostile character. A vessel owned by a neutral but manned by an enemy crew, com- manded by an enemy master, and employed in the trade of the enemy, is regarded as an enemy ship. A vessel holding a pass from the enemy, or sailing under its flag, is regarded in a similar light. A somewhat curious exception to this rule was set up in the case of the "Palme" (Dalloz Jurisprudence Gen6rale, 1872, Part III, p. 94). In this case a vessel sailing under the flag of the North German Confederation, was captured by a French cruiser, during the war between France and Germany, and brought in for adjudication. It appeared that the vessel belonged to Swiss owners, but that, as Switzerland had no maritime flag of her own, the vessel sailed under that of the North German Confederation. Under these circumstances the Conseil d'Etat reversed the decision of the inferior Court, and decreed restitution. 182 Cases and Opinions on International Law. PRIZE AND BOOTY. THE BANDA AND KIRWEE BOOTY. Temp. 1866. [L. E. 1 A. &; B. 109 ; 35 L. J., N. S., Adm. 17.] Case.] The case of the Banda and Kirwee booty sets out the doctrine of the English Courts in prize and booty cases {g). Upon the arrival in Calcutta of Lord Clyde, then Sir Colin Campbell, as Commander-in-chief, for the purpose of suppressing the rebellion in India in 1857, he and Lord Canning concerted a plan of military operations, the result of which was that certain columns were organized to co-operate upon the right and left banks of the Jumna, with Lord Clyde's forces in Oude. Various military operations took place, and much booty was taken ; the bulk of this, the Banda and Kirwee booty, being taken by General Whitlock's forces. Colonel Keating's regi- ment claimed to be reckoned among the actual captors of that booty. That regiment had throughout the whole of the operations formed part of General Whitlock's force, and was under his orders, but was not present at the capture. It was proposed that a lump sum should be made of all the booty taken, and that this should be divided among the forces engaged. This proposal was objected to by the prize agents of General Whitlock's forces, who claimed the whole of the Banda and Kirwee booty, which amounted to the sum of £720,000, on the ground that they were the actual captors of it. The matter was ultimately, under the provisions of 3 & 4 Vict. cc. 65 & 22, and an Order in Council of June, 1864, referred to the Judge of the Court of Admiralty. Judgment] A very long and elaborate judgment was de- livered by Dr. Lushington in the matter, containing, among others, the following propositions : — (g) As to the distinction between Booty and Prize, see p. 138, infra. Prize and Booty. 133 The Court of Admiralty had no original jurisdiction in prize matters. That which it did possess was derived from a royal proclamation issued at the outbreak of war, and a command issued by the Crown to the Court authorizing it to deal with matters of prize. The Court had no jurisdiction with re- spect to booty till 3 & 4 Vict. c. 65, which enacted that the Court should proceed in matters of booty in the same way as in prize cases. But this enactment only referred to the procedure to be adopted, and did not assimilate the principles on which the distribution was to take place. The effect that previous prize and booty decisions and grants ought to have upon the judgment of the Court was then considered. As to naval decisions, it was held that none of them ought absolutely to govern the judgment in the present case. There was an essential distinction between naval prize and booty, arisiag from the fact of one capture being on land and the other at sea. As to booty, that belonged primarily to the Crown, but the Crown usually disposed of it amongst the troops engaged in such proportions as its advisers might recommend. This was now expressly laid down by the statute 2 & 3 WiU. IV. c. 58. What troops were to be considered as those engaged in the captures, was a question on each occasion for the Treasury. All prize taken in war also belonged to the Crown, but for a century and a half the Crown had been in the habit of granting the prize, after condemnation, to the captors. This not only provided a stimulus to every kind of duty, by furnishing gratuities as incidental to certain services, but also had the effect of restraining pillage. With regard to the rules governing distribution of prize money, when a ship was taken at sea the actual captor was the ship to which the prize struck its flag. The whole of the ship's crew shared in the prize, notwithstanding that they might not all have been on board at the time of the capture, or that the prize might have been taken out of sight of the ship, and at a great distance from it by the ship's tender, or by a boat's 134 Cases and Opinions on International Law. crew detached from the ship. The rule which attributed the capture to the ship rested on practical convenience. As to claims made on the ground of joint capture, actual capture was what the Court always looked to in the adjudication of naval prize, except in two cases where the application of con- structive capture prevailed, viz., association and co-operation. Vessels claiming to be joint captors on the ground of association, claimed in virtue of some bond of union existing between them-, selves and the actual captors. ' Those claiming on the ground of co-operation, claimed in virtue of support rendered on the particular occasion to the actual captors. If vessels had been associated together, a capture made by one enured to the benefit of aU, and it was not necessary that the capture should have been made in the sight of the others, or that the others should have actually co-operated, beyond such co-operation as was implied in the fact that each, at time of capture, was engaged in discharging the part assigned to it in their common service. Association was recognized in the case of vessels told off by superior authority for the purpose of cruising together, or maintaining a blockade ; or in the case of vessels temporarily associated under the orders of the senior of their respective commanding officers for the purpose of chasing and capturing prizes. Community of enterprise did not of itself constitute association ; and it was equally insufficient if the bond of union, though originally well constituted, had ceased to be in force at the time of the capture. Even vessels, which, in being detached to cruise between certain points, received orders "to join the fleet occasionally for communication," would, in Lord Stowell's opinion, be deemed temporarily dissevered from the fleet, so that no joint sharing would exist between them. A vessel unassociated with the actual captor must, in order to substantiate a claim as joint captor by co-operation, prove that in the course of the chase it was in sight of both the prize and the captor, under circumstances to cause intimidation to the prize and encouragement to the captor. In the case of Prize and Booty. 135 the vessel in sight being one of the Government vessels a presumption was raised that it was there under circumstances to cause such intimidation and encouragement, but this pre- sumption might be rebutted. Diversion of the prize, however, did not constitute co-operation. The result of the prize decisions appeared to be as follows : — They declared actual capture to be the rule, joint capture the exception, admissible only in certain cases ; they laid down the principle which seemed to underlie all cases of joint capture, viz., encouragement to the friend, intimidation to the foe ; they exhibited two modes in which that principle might take effect, association and co-operation ; and finally they enforced the necessity of assigning some limits as to what con- stituted co-operation. Passing then to the subject of booty, Dr. Lushington, after examining the principal cases relating to this subject (grgi), pro- ceeded to state the conclusions of law to which he had come on the subject. The general rule for the distribution of booty was the rule of actual capture. But to confine the enjoyment of booty to those who had actually laid hands upon the property would be simply to give legal sanction to lawless plundering ; on the other hand, to distribute it indiscriminately would be to discourage personal efforts, and in many cases to dissipate the booty till it became insignificant. The course which was most analogous to the rule of the naval service, most in conformity with military usage, and most likely to work satisfactorily in the case of an army consisting of several divisions, was to draw the line between division and division. Those who claimed to share in booty on the ground that they were associated with the actual captors, must prove a strict association. The association must be mihtary, not {gq\ Cases arising out of the campaign Expedition against Khelat, 1839 ; the in E.'Vpt, 1801 ; the Mahratta War, Scinde War, 1843 ; the booty taken 1803 tthe Battle of Waterloo, 1815; at Momltan, 1848—9; Delhi, 1857; the Deccan War,. 1817-1818 ; the War Lucknow, 1857-8 ; and Dhar, 1857. in Burmah, 1824, 1825, and 1826 ; the For the facts of these cases the reader War in Bhurtpore, 1825 and 1826 ; the is referred to the reports. 136 Cases and Opinions on International Law. political, and the force making the claim must be under the immediate control of the same commander. There were two cases where the above would not apply, one where there was a joint expedition of land and naval forces, the other where the British army was in the field with an army of an allied country. Both of those cases depended on special considerations. As to co-operation, the service necessary to constitute a claim to joint capture on this ground was a co-operation directly tending to produce the capture in question. What tended to produce the capture it was impossible to define once for all. Speaking generally it could only be said that strict limits of time, place, and relation must be observed. Services rendered at a great distance from the place of capture, acts done long before the capture was contemplated, even though they affected the whole scene of operations, could not be deemed such co-operations as would give a title to a share in booty. Indirect services would also be insufficient. With reference to the claim on behalf of the late Lord Clyde, the arbitrator proceeded to state that the right of a Commander-in-chief to share in booty taken by his army was analogous to the right of the flag officer to share in naval prize taken by a ship on his station. It might be said generally that an admiral on his station, provided he was de facto in command there, was entitled to a share in every prize taken by a vessel under his command. To this right there were two apparent exceptions, viz., 1st, No flag officer commanding in a port in the United Kingdom shared in prizes made by any ship sailing from such port by order of the Admiralty; and, 2ndly, An admiral did not share in prize taken within the limits of his station by a vessel that would commonly be under his command, if the capturing vessel had been delegated for a special independent service, and had for that purpose been detached from the admiral's authority by paramount orders from the Admiralty. With regard to the right of the Commander-in-chief to share Prize and Booty. 137 in booty taken by his troops, no case had been produced where he had shared if he had not been personally in the field ; the arbitrator would, therefore, hold that, to be entitled to share in booty, the Commander-in-chief must be in the field. It was not necessary that he should be actually present with the division which made the capture ; it was enough that he should be in the field with any part of the army ; being in the field with one division, he was in the field with all. But if troops had been placed under the independent command of another, the Commander-in-chief, even if in the field with his army, did not share in booty taken by those troops, although under ordinary circumstances they would be under his com- mand either as having been detached from his army or as operating within the territorial limits of his authority. After a review of the facts of the case, it was held that Lord Clyde was Commander-in-chief over General Whitlock and his troops. That he was in the field was a matter of fact beyond dispute, and his absence from the scene of capture was im- material. Lord Clyde, therefore, with regard to the booty, fulfilled in aU respects the condition of being Commander- in-chief in the field, and in accordance with usage he was entitled to a share in it. With reference to Lord Clyde's staff, in the Indian army the right of the staff to share in booty had always followed that of the Commander-in-chief. The result of the judgment was that Lord Clyde and his staff, personal as well as general, was held entitled to share in the booty ; subject to that right the whole of the booty was awarded to General Whitlock and his forces, including amongst the latter the troops under Colonel Keating, and any other troops left by General Whitlock on his march, but who at the time of the capture formed a portion of his division and were stiU under his command. All other claims were disallowed. The Banda and Kirwee Booty, L. E. 1 A. & E. 109 ; 35 L. J. N. S. Adm. 17. 138 Cases and Opinions on International Law. Booty may be defined as property seized by a belligerent on land, irrespective of its use, because it is the property of his enemy. The term is in common use applied to arms and ammunition, but it is strictly applicable to all property that can be appropriated. The term prize is generally confined to captures made at sea. The principles governing the distribution of booty and of prize may be gathered from the summary of Dr. Lushington's judgment given in the text. It only remains to add a word on prize Courts and their pro- cedure. In time of war Courts are established in belligerent countries for the purpose of adjudicating on questions of prize. The forms of procedure vary in difierent countries, but the law administered by the Courts is in all cases International and not Municipal law. The functions of Prize Courts are briefly : — (1.) To decree con- demnation in all cases where a prize has been properly made ; (2.) To order restoration of all property wrongfully captured, and in such cases to order payment of damages by the captor ; (3.) To subject to punishment the members of the crew of either the capturing vessel or the prize, in case of misbehaviour. A decree of condemnation has the effect of vesting the enemy property taken in the captors, subject to a distribution between them on the principles indicated above. It has a similar effect on contraband belonging to neutrals, and on property of neutrals consigned with the view of breaking blockade. A Prize Court may not be erected in neutral territory, but a ship or cargo may be condemned while lying in a neutral port. In the American case of Jecher v. Montgomery (13 Howard, 498), it was laid down that all captures jure belli enured for the benefit of the Sovereign under whose authority they were made, and that his Courts alone could adjudicate on them ; but at the same time it was held that a Prize Court could always proceed in rem whenever the pro- ceeds of the prize could be traced into the hands of any person what- ever. Modem practice, however, discloses a tendency on the part of neutrals to impose strict limitations on the admission of prizes into neutral ports. The procedure in England under the Naval Prize Act, 1864 (7t), is shortly as follows. The captor of a prize in the first instance delivers her into the custody of the marshal of the Court ; the ship's papers are brought into the registry ; a monition issues citing all persons to show cause against condemnation ; three or four of the principal persons belonging to the captured ship are brought before the Court and examined on the standing interrogatories. After the return of the monition, the Court, on production of the examinations and the {h) 27 & 28 Vict. c. 25. Prize and Booty. 139 ship's papers, proceeds to condemnation or restoration. The Court may direct further proof to be adduced where it appears doubtful whether the ship is good prize or not. Any person claiming an interest in the ship can enter a claim at any time before final decree. The Court can, if it thinks fit, order appraisement of the captured ship, and direct restoration to the claimant on his giving security to the amount of the appraisement ; it can also order the prize to be sold, where it appears advisable on account of its condition, or after condemnation. Any number of small armed ships not exceeding six, captured within three months before the proceedings, can be included in one adjudication. The Court can call upon the captor to proceed to adjudication. These provisions apply both to prize vessels and cargoes ; but, so far as relates to the custody of the ship and the examination on the standing interrogatories, they do not apply to ships of war taken as prize. THE "FLAD OYEN." Temp. 1799. [1 C. EoB. 135.] Case.] During war between Great Britain and France at the end of the last century, the " Flad Oyen," a British ship, was taken by a French privateer, and carried into the port of Bergen. She there underwent " a sort of process " which terminated in a sentence of condemnation pronounced by the French Consul. Under this sentence she was asserted to have been ultimately transferred to the claimant, who bought her at a sale by public auction. It appeared that the purchaser stood in the capacity of general agent at the place for the French nation, and in this capacity acted also as vendor. From the general terms of the report, which is however very meagre, it would seem that at a subsequent period, presumably 140 Cases and Opinions on International Law. on recapture, an application was made by the original British owner for restitution, on the ground that there had never been a regular sentence of condemnation by a competent prize court. Judgment] Sir W. Scott, in giving judgment, stated that by the general practice of the Law of Nations a sentence of con- demnation was usually deemed necessary to transfer the pro- perty in prize, and that a neutral purchaser in Europe during war looked to the legal sentence of condemnation as one of the title deeds of the ship if he bought a prize vessel. The learned Judge stated his belief that there was no instance in which a man, having purchased a prize vessel of a belligerent, had thought himself quite secure in making that purchase merely because the ship had been in the enemy's possession twenty- four hours, or had been carried infra prcesidia ; the contrary had been more generally held, and the instrument of condem- nation was amongst those documents which were almost univer- sally produced by a neutral purchaser. It was also necessary to show that the vessel had been, in a proper judicial form, sub- jected to adjudication. It was the first time that an attempt was made to impose upon the Court a sentence of a tribunal not existing in the beUigerent country ; and in order to be sufficient it must be shown that it was conformable to the usage and practice of nations. It would not be enough to show that, on mere theory, a prize tribunal might sit in a neutral country without also showing that such a proceeding was sanctioned by the universal practice of mankind. The efficacy of such a mode of proceeding could not be admitted because one nation had thought proper to depart from the common usage of the world, and general theory gave it a degree of countenance iu- dependent of all practice from the earliest history of mankind.^ As it appeared that no sentence of this kind had ever been produced before, and that in the present case it was put forward by one nation only, nothing more was necessary to show that it was the duty of the Court to reject such a sentence as inadmissible. Prize and Booty. 141 An order was, therefore, made for restoration of the ship to the British owners upon the usual salvage. The Flad Oyen, 1 C. Eoh. 135. The principle of this case is that the property in a prize is not changed in favour of a neutral vendee or recaptor, as against the original owner, until it has been condemned by the sentence of a Court of competent jurisdiction belonging to the sovereign of the captor. Jurists have differed in opinion as to when the title to prize becomes complete. According to some writers, the prize vests in the State of the captor at the moment of the capture ; according to others, the title is not complete until after twenty-four hours' possession. Others again hold that the property is not divested until the prize has been brought infra prcesidia ; whdst finally, some hold condemnation to be necessary. The question is not likely to arise except as between the original owner and a recaptor, or the original owner and a neutral purchaser. By modern usage it seems that, in order to bar the claim of the original owner as against a neutral purchaser or a recaptor, there must be a judicial inquiry by a competent prize Court, followed by adjudication. Until this takes place, the right of property is in abeyance, and no good title can be given by the captor. THE GERMAN CONTRACTS FOR CUTTING WOOD IN FRENCH FORESTS. Tem/p. 1871. [Hall's International Law, 2nd edition, p. 449.] Case.] During the Franco-Prussian war of 1870 the Ger- man Government entered into contracts with certain per- sons for the cutting of wood in the French forests. Payment was made in advance, but the contracts were not completed at the time of the treaty of peace between the two Powers. Under these circumstances the contractors urged that the German Government being within their rights in the 142 Cases and Opinions on International Law. making of the contracts, the French authorities ought to have allowed them to complete the cutting. The French Govern- ment held that the restoration of the Government had annulled the contracts, and they made in the supplementary convention of the 11th of Decemher, 1871, a "declaration to that effect, -which was treated hy the Germans as a correct statement of law. The German Contracts for cutting wood in French Forests, 1870; Hall's International Law, 2nd Edition, p. 449. This case illustratea the principle that, although acts done in a country by an invader cannot be nullified in so far as they have produced efifects during the occupation, they become inoperative so soon as the legitimate government is restored. The doctrine of Postliminium, which, under the influence of the text writers, has been imported from Epman Law into International Law, is a legal inference, by which persons or property captured by the enemy are presumed to be restored to their former condition, on the withdrawal of the enemy's control. With regard to persons, the right of postliminy takes effect either on escape to their own or to neutral territory ; but it does not avail prisoners confined on a belli- gerent war-ship or prize in a neutral port. Movable property, taken on land, reverts to its original owner only if recaptured speedily, or, as is usually laid down, within twenty-four hours, otherwise the pro- perty belongs to the recaptor. With respect to immovable property captured in war, the title of the captor cannot be deemed complete until the occupation has been followed by definite appropriation or cession, the best evidence of which will be a treaty of peace confirm- ing his title. Until this occurs, the jms posUiminii will always operate in favour of the former Government and its subjects, in the event of the territory being restored or recovered. In this case, the Govern- ment or its subjects alike are entitled to take their property free from any contracts, grants, charges, or similar incidents attached by the conqueror whilst in possession (hh). It was upon this principle that the Courts of the United States decided that grants of territory made by British governors, after the Declaration of Independence, were in- (hh) This case must be distinguished sovereign or government of the countiy from that in which the conqueror (see case of the Elector of Hesse Cassel, establishes himself as the de facto p. 153, infra). Salvage. 14.3 valid ; although grants made before that date were expressly saved by the treaty of peace. With regard to property captured at sea, as has already been stated, the title of the original owner reverts, according to some authorities, only on recapture within twenty-four hours ; according to others, before the prize has been taken infra prcBsidia. Strictly speaking, if the recapture takes place after this, the prize should become the property of the recaptor ; but this result is mitigated in practice by municipal law, in virtue of which the State generally decrees restitution of property belonging to its own subjects on pay- ment of salvage. In the case of the recapture of the property of an ally or co-belligerent, the principle of reciprocity is usually adopted. (For the rules applicable, see note appended to the case of the " Two Friends " below, and the " Santa Cruz," cited p. 146.) SALVAGE. THE "TWO FRIENDS." Temp. 1799. [1 C. Rob. 271.] Case.] During the war which prevailed between Great Britain and France at the end of the last century, the " Two Friends," an American ship, was captured by the French, whilst on a voyage from Philadelphia to London, and subsequently rescued by her crew, part of whom were British subjects. She was brought into a British port, and some of the cargo was landed on English soil, pending the settlement of salvage. A salvage suit was instituted, and a protest was made against the jurisdiction of the British Courts over an American ship. It was objected by the defendants that, inasmuch as both ship and crew belonged to the United States, the claim could only be enforced in the United States, and also that the salvors' lien, if any, did not extend to the goods which had been landed. Judgment,] Sir William Scott, in giving judgment, laid down that every person assisting in rescue had a lien on the 144 Cases and Opinions on International Law. thing saved. The applicants were not to be considered as American sailors, they were not in the condition of American citizens, even if hired as mariners on hoard the vessel, for the rescue was no part of their general duty as seamen ; it was an act perfectly voluntary, in which each individual acted as a volunteer and not as a member of the crew of the ship. Even if they had been American seamen, it did not appear that any inconvenience would have arisen from a British Court of Justice exercising jurisdiction, for salvage was a question of the jzis gentium, and materially different from the question of a mariner's contract ; it was a general claim upon the general ground of quantum meruit. As to a contention that different countries might have different proportions of salvage, the learned Judge did not know of any rule on the matter beyond what subjected such matters to a sound discretion distributing the reward according to the value of the services. He desired it to be understood that he delivered no decided opinion as to whether American seamen rescuing an American ship and cargo, and bringing her into this country, might not maintain an action in rem in the Court. But if there was British property on board, and American seamen were to proceed here against that, he would think it a criminal desertion of his duty if he did not support their claim. In the present case, no American seaman had appeared, nor was it proved that there was any British property on board ; but he had no doubt that the British seamen were entitled to have their services rewarded here, and it would be a reproach to the Courts of this country if they were not open to lend their assistance in such a case. He was, therefore, of opinion that the jurisdiction of the Court was well founded, and that the circumstance of the ship and cargo being American property would not exclude the jurisdiction where there were any British subjects con- cerned, and where the goods were within the jurisdiction. As to the question whether the jurisdiction was not ousted by the landing of the goods, so far as related to such goods, the learned Judge remarked that whatever might be the law as to Salvage. 145 wreck and derelict, it did not apply to those goods which were prize goods, there being no axiom more clear than that such goods when they came on shore might be followed by the process of the Admiralty Court. On the whole case, the Judge was of opinion that the English seamen were entitled to redress in Great Britain, and that the goods being matter of prize, even that part which had been landed was subject to the jurisdiction of the Court, and the protest was therefore over- ruled and salvage awarded. The Two Friends, 1 C. Eob. 271. Salvage, so far as it enters into our present subject, may be defined as compensation made to those through whose efForts either a ship, or her cargo, or the lives of persons belonging to her, have been saved from loss or destruction by fire or by sea, or from capture by pirates or lawful enemies. With regard to recapture, where in time of war a ship has been captured by an enemy and subsequently recaptured, it is the practice of Great Britain to restore her to the original owner, unless she has been fitted out by the enemy as an armed vessel. Such restitution, however, is invariably made subject to the payment of salvage, which usually amounts to one-eighth of the value of the property, in the event of the recapture having been made by a public vessel. If the recaptured ship has not been taken infra prceddia, she is usually allowed to prosecute her voyage. The United States decree restitution only where recapture has been effected prior to condemnation by a competent Court. The restitution is also subject to payment of salvage. No reference is made in the latest statute on the subject to the event of the vessel having been fitted out by the enemy as a vessel of war, but it is suggested that in this case the discretion given to the Court would enable it to increase the amount of salvage and costs payable. France decrees restitution in the case of recapture by a public vessel, subject to payment of salvage of one-tenth if twenty-four hours have elapsed, one-thirtieth if they have not. An account of the practice of Holland, Denmark, Sweden, and Spain, on this subject, will be found in Phillimore's International Law, Vol. III. ch. vi. 146 Cases and Opinions on International Law. THE "SANTA CRUZ." Tem;p. 1798. [TUDOE's Leading Cases, 1047 ; 1 C. Eob. 50.] Case.] In August, 1796, during war between Great Britain and France, a vessel belonging to a subject of Portugal, the ally of Great Britain, was captured by the French and re- captured by the British, after having been one month in the enemy's possession. A claim was made on behalf of the original owner for restitution ; it was resisted on the ground that the British Courts acted on the principle of reciprocity, and in two similar cases the Portuguese Courts had con- demned British vessels. Judgment.] Sir "William Scott, in giving judgment, stated that the law of England on the subject gave the benefit of the rule of restitution to its allies, till it appeared that they acted towards British proj)erty on a less liberal principle. The question to be determined was, therefore, simply whether Portugal had applied a different rule under similar circum- stances to British property. After reviewing the evidence, his lordship was of opinion that the law of Portugal established twenty-four hours' possession by the enemy to be a legal divest- ment of the property of the original owner, and that it would have applied the same rule to the property of allies, and this had been actually carried into practice. The ship was there- fore condemned. [In December, 1796, an ordinance was issued by Portugal declaring all recaptures after possession by the enemy for twenty- four hours to be lawful prize. Under these circum- stances a second ship captured while that ordiaance was in force was also condemned. In May, 1797, a further ordinance was issued by Portugal , directirig restitution in such cases. On this ground, in the case of six other vessels captured by the French and re- captured after that date, restitution was decreed.] The /S'antoCr«^,Tud.Leading Cases, 1047; 1 C. Eob. 60. Salvage. 147 The case of the " Santa Cruz " sets forth the rules adopted by the Enghsh Courts in the case of the recapture by an English vessel of ships or property belonging to an ally or co-belligerent. The practice of the United States appears to be identical in this respect with that of Great Britain. THE "CARLOTTA." Temp. 1803. [5 C. EOB. 54.] Case.] In 1803, during war between France and Great Britain, the " Carlotta," a Spanish ship, whilst on a voyage from Montevideo to London, with a cargo which included some property belonging to British merchants, was succes- sively seized by a British cruiser, captured by a French privateer, recaptured by the British and brought into Jersey. A claim was made for salvage on the recapture. On behalf of the Spanish claimants it was contended that no salvage could be awarded on the recapture of neutral property ; that this principle had been deliberately affirmed in the case of the "Jonge Lambert "(i), and that the special considerations in virtue of which some modification of this rule had been admitted during the last war {ii), did not apply to the present case. Judgment.] Sir William Scott, in giving judgment, stated that the tendency was rather against subjecting property to salvage in such cases, but if any edict could be appealed to, or any fact established, showing that the property would have been exposed to condemnation in the French courts, he should hold it to be sufficient ground to induce him to pronounce for (i) See pp. 54 & 55 of the Eeport in tion, by tlie French prize courts, of notis. neutral property wherever tainted by [ii) These special considerations seem any contact with the euemy. to have been the wholesale condemna- L 2 148 Cases and Opinions on International Law. salvage in the particular case. No ground appeared from which it could be supposed that the property would have been condemned, and the claim for salvage was refused. The Carlotta, 5 C. Eob. 54. The property of a neutral is not strictly exposed to capture, except for carriage of contraband or breach of blockade. If, therefore, a belligerent captures neutral property, and this is recaptured by the other belligerent, the latter usually restores it without payment of salvage, on the presumption that the Court of the belligerent captor would not have condemned it. But if any facts are shown rendering it probable that the enemy would have condemned it, as that the goods were contraband or destined to a blockaded port, then the property is usually restored on payment of salvage. The later doctrine of the French Courts on the subject of the recapture of neutral property is illustrated by the judgment in the case of the " Statira " (Wheaton's International Law, by Lawrence, 650), decided in 1800. M. Portalis, in giving judgment, stated that the recapture of foreign neutral vessels by public ships gave no title to the recaptors. If a neutral vessel was unjustly seized by the cruisers of the enemy, and recaptured by a French cruiser, she ought to be restored on proof of neutrality. In such cases a foreign vessel would be treated with more favour than a French vessel, on the ground that if a French vessel had fallen into the enemy's hands it would have been lost for ever, unless retaken, whilst in case of a neutral vessel the seizure did not render it ipso facto the property of the enemy ; until confiscation the vessel lost neither its national character nor its rights. Salvage. 149 THE "CEYLON." Temp. 1811. [1 DoDS. 105.] Case.] The " Ceylon," an English East India ship, had been captured by the French during war between Great Britain and France. She was then taken to the Island of Johanna, where she was refitted and supplied with two additional carronades and a French crew of seventy men. She was sub- sequently taken to the Isle of France, where she was attacked by a British frigate, and afterwards by a British squadron. The " Ceylon," in company with other French ships, succeeded in repelling the attack and destroying the squadron. She was then dismantled and fitted out as a prison-ship, and was used as such, at the time of the capture of the island by the British. Proceedings were instituted by the original owners of the ship for restitution on payment of salvage. It appeared that under the Prize Act, British ships recaptured from the enemy were to be restored upon payment of salvage, unless they had been sent forth as ships or vessels of war by the enemy. The original owners relied upon the fact that the "Ceylon" had neither been commissioned nor sent forth as a ship of war by the enemy, and that she had only been engaged in defensive operations. Judgment.] Sir W. Scott, in giving judgment, held that in order to come within the exception set up by the statute it was not necessary that the ship should have been actually sent out of port, nor that she should have been regularly commissioned : it was enough to show that she was employed in the public military service of the enemy by those who had competent authority so to employ her. In view of this a sentence of condemnation was pronounced. The Ceylon, 1 Dods. 105. 150 Cases and Opinions on International Law. This case is cited as illustrating the exception to the usual rule of restitution on recapture, described in the note to the case of the " Two Friends " (p. 145). TERMINATION OF WAR. THE "SWINEHERD." Temp. 1802. [Mbklin, Kbpebtoiee db Jueispeudbnob, tit. Peisb, Vol. XIIT., p. 183.] Case.] The "Swineherd" was an English vessel provided with letters of marque. She sailed from Calcutta for England before the expiration of the five months fixed by the Treaty of Amiens for the termination of hostilities between Great Britain and France in the Indian Seas, but after the news of the peace had reached Calcutta, and after the pubhcation in a Calcutta paper of a proclamation of George III. requiring his subjects to abstain from hostilities after the time fixed. A copy of the proclamation was on board. She was captured within the five months by the " Bellona," a French privateer. The latter ship had been informed by a Portuguese vessel bearing a flag of truce which had put into the Mauritius, by an Arab vessel, and by an English vessel which she had captured, that peace had been concluded ; the commander was shown a copy of the " Gazette Extraordinary of Calcutta," containing the proclamation, and he could see that the " Swineherd " was without powder. Notwithstanding this the " Swineherd " was condemned by the French Prize Court, on the ground that a belligerent is not compelled to accept notification of the cessa- tion of hostilities except from his own Government. The Sivineherd, Merlin, Repertoire de Jurisprudence, tit. Prise, Vol. XIII., p. 183. Termination of War. 151 War is usually terminated by a treaty of peace. Sometimes, though rarely, it is terminated by mere cessation of hostilities, or by the con- quest and submission of the whole or part of one of the belligerent States. On the termination of war, the States resume their normal relation towards each other, and acts of hostility ought to cease. In default of any express provision to the contrary by treaty, the uti possidetis doctrine prevails, and all property at the time under the control of either belligerent vests absolutely in him. Where there is a formal treaty of peace, hostilities should cease from its conclusion, unless a future date is fixed for the purpose by the treaty. Frequently, when hostilities affect distant regions, a future date is fixed for their termination. In such case hostilities should cease when duly authorized information of the conclusion of peace has been received ; but, as is indicated by the case of the " Swineherd," a military or naval commander is not bound to accept any communication of the termination of hostilities, unless its truth is in some way attested by his own Government. THE "MENTOR." Temp. 1799. [1 C. Rob. 179.] Case.] The "Mentor," an American vessel, whilst on a voyage from Havannah to Philadelphia in 1783, was attacked off the Delaware, and after shots had been fired on both sides was destroyed by two of H.M. ships. All parties were in complete ignorance of the cessation of hostilities between Great Britain and the United States. After the war, a suit seems to have been instituted against the captain of the English vessel, but no report of this case appears to be extant, although the suit seems to have been unsuccessful. Some ten years afterwards a monition was filed by the same complainant, calling upon the admiral of the station to proceed to adjudication, the object of the proceedings being to fix him with liability for damages in respect of what had occurred. Judgment.] Sir Wm. Scott, in giving judgment, referred to the time which had elapsed since the transaction occurred, 152 Cases and Opinions on International Law. remarking, that although, the Statute of Limitations did not apply to prize causes, yet there should be some rule of limita- tion provided by the discretion of the Court. After adverting to the fact that ten years previously a suit had been unsuccess- fully instituted by the same party in regard to the same subject- matter, and also to the fact that the object of the proceeding was to call to adjudication a person who was neither present at nor cognisant of the transaction, on the ground that the person alleged to have done the injury was acting under his authority, the learned Judge proceeded to lay down the rule of the Court, that the actual wrongdoer was the proper person to fix with liability. He might have other persons responsible over to him, and that responsibility might be enforced, but it was the practice of the Court to have the actual wrongdoer before it. The learned Judge then expressed the opinion that if an act of mischief had been done by the King's officers through ignorance in a place where no act of hostility ought to have been exercised, it did not necessarily follow that ignorance of that fact would protect the officers from civil responsibility, although if the officer acted through ignorance his own Govern- ment ought to indemnify him. He was therefore inclined to think that the determination of the Judge in the former case did not turn upon the fact of ignorance only, but upon all the circumstances of the case. Having regard to these circumstances, and to the fact that the admiral was absent from the scene of the transaction, and to the lapse of time which had occurred, it was held that the admiral was not liable to be called upon to proceed to adjudication, and he was discharged accordingly. The Mentor, 1 C. Eob. 179. This case is cited as containing the opinion of so eminent a judge as Lord Stowell on such points as the limitation of prize suits, the necessity in such cases of having the actual wrongdoer before the Court, and lastly, the effect of ignorance or mistake on liability. Termination of War. 153 The case also incidentally illustrates the principle, that even though a ship be destroyed, the belligerent may nevertheless be called on to proceed to adjudication. CASE OF THE ELECTOR OF HESSE CASSEL. Tem(p. 1832 circa. [Phillimoee's Inteknational Law, Ft. XII., c. VI.] Case.] Before the invasion of Germany by Napoleon, the Elector of Hesse Cassel held, in the territory of which he was sovereign, certain domains as his private property. He also held certain lands on mortgage from subjects of other German States. After the Battle of Jena he was expelled from his dominions and did not return until the French domination in Germany was put an end to by the Battle of Leipzic, 1813. Hesse Cassel had meanwhile remained for about a year under the immediate government of Napoleon, and was afterwards in- corporated into the newly created State of Westphalia. During Napoleon's administration of Hesse Cassel he had confiscated the private property of the Elector, and had also granted a release of their mortgage debts to some of the Elector's mort- gagors. After the overthrow of Napoleon the Elector was restored to his dominions, and afterwards sued one of his mortgagors, who pleaded a release by Napoleon. The question was referred to the German Universities, who held that the release was valid so far as the money had actually been paid, and that the Prince could recover only that portion of the debt which had not been paid in money to Napoleon. They drew a distinction between acts done by a transient conqueror and those done after the entire subjugation of a kingdom. In the former case the right of the conqueror was confined to his private acts ; in the latter his rights had been ratified by acts of State. Napoleon's right having been of the latter kind, the fact of the property being the Elector's private property 154 Cases and Opinions on International Law. was immaterial, and no consideration of the justice or injustice of the war could be allowed to interfere with this principle. They pointed out that the Prince, from the time of his abdica- tion, had been regarded as an enemy of the new Government, and that his property was therefore liable to confiscation. They refused to admit the doctrine that the Prince retained con- structive possession of the debts by reason of his having the acknowledgments of the debtors in his hands. On the con- clusion of the war no restitutio in integrum could be said to have taken place ; and even according to Roman Law the restored owner must take the property as he found it, without compensation for damage suffered in the interval. They also pointed out that the return of the Prince could not be considered as a continuation of his former government, inasmuch as he had not in the meantime been constantly in arms against Napoleon and at last successful by force of arms in recovering his domains. The Elector, however, in spite of the view so expressed by the principal German jurists, resumed possession of his domains, ejecting, in many instances, persons who had obtained grants of them from the de facto sovereign. The proprietors of the Freienhagen estate appealed to the Congress of Vienna, but the Congress refused to give them any assistance. Case of the Elector of Hesse Cassel, Phillimore's International Law, Pt. XII., c. VI. Where there has been a mere occupation of conquered territory, not confirmed by treaty or cession, and not even accompanied by the establishment of any stable government or new authority, except so far as was required by military necessity, then on reoonquest or with- drawal, the rights of the original Sovereign and his subjects revert (see case of German Contracts, p. 141). It is possible, however, that without actual cession a new govern- ment or authority may have been set up, and yet, after the lapse of time, a restoration of the original Sovereign or authority may take place. In this case the rules laid down by the text writers as to the Termination of War. 155 effects of the restoration of authority are : — (1.) All changes made by the intermediate government in the constitution become inoperative ; (2.) The ancient laws and administrative institutions become re- established ; (3.) But no private rights acquired during the foreign regime ought to be set aside, provided they are consistent with public order ; (4) All dispositions of the State property made by the inter- mediate government are binding ; (5.) The restored Sovereign ought not to make a retrospective use of his power (J). With regard to debts, it may be laid down as a general rule that a hondjide payment made to the intermediate de facto government will extinguish the liability of the debtor. It would seem also that when payment is made even to a transient conqueror, the debt will be extinguished, subject to the debtor being able to prove that the money was actually paid over at the proper time and place, and under threat of compulsion on the part of the conqueror. But the debtor must not have been in mora, otherwise the fact of the money having come into the hands of the actual payee will be deemed due to his default, and repayment will have to be- made {k). Such ques- tions are, however, usually regarded from the point of view of policy rather than from that of law. CASE OF COUNT PLATEN HALLEMUND. Temp. 1866 circa. [FOESTTH, COSrSTITUTIOIfAL OPINIOKS, 335.] Case.] At the time of the capitulation of the Hanoverian Army to Prussia in 1866, Count Platen Hallemund was Prime Minister of Hanover. After the annexation the Count con- tinued in attendance on the ex-King, and took up Ms abode in Vienna. Subsequently he was summoned before the Prussian tribunals to answer a charge of high treason com- mitted after he had ceased to reside in Hanover. By the law of Prussia, Prussian subjects can be prosecuted for high treason committed abroad. Exception was taken to the jurisdiction of the Court on the ground that Count Platen was not a Prussian subject. The matter was submitted to two German {j) Heffter Europiiisches Vblkerrecht, § 188. IJc) Phillimore International Law, Vol. III. p. 829. 156 Cases and Opinions on International Law. jurists, Professor Zachariae of Gottingen and Professor Neumann of Vienna. These maintained that the mere forcible conquest of a country did not create the relation of sovereign and subjects between the conqueror and the conquered. They laid down that to create such relation, there must be an ex- press or tacit submission to the new government, although the mere remaining in the country after the conquest and per- forming the duties of a subject would amount to a tacit sub- mission. Whether or not they would make such submission and acknowledge the new sovereign power was a question for the inhabitants themselves, and consequently liberty ought to be accorded them of leaving the country if they chose. This opinion was, however, not acted on by the Court before which the case came, and the Count was sentenced, in contu- maciam, to fifteen years penal servitude. Case of Gaunt Platen Hallemund, Forsyth, Constitu- tional Opinions, 335. The case of the " Elector of Hesse Cassel " raises the question as to the proprietary rights of a conqueror who establishes a new de facto government in the place of the original authority. The case of " Count Platen Hallemund " raises the question as to the personal relation of such a government to the original inhabitants. The opinion of Professors Zachariae and Neumann, no doubt, contains a correct statement of existing principles as to the personal liabilities of the inhabitants of the conquered territory. Unfortunately the con- duct of the conqueror is apt to be regulated by other considerations than those of legality, and, as in this case, even courts of law are found to defer to the feeling of resentment entertained by a power- ful prince. Still it may be laid down as a principle of poUtical morality, that although the conqueror in such a case has abso- lute sovereign power over the conquered State, he ought not to interfere either with the private rights of the inhabitants or their persons. In the American case of Johnson v. M'Intosh (8 Wheaton, 588), Marshall, C.J., in delivering the judgment of the Court, laid down that conquest gave a title which the Courts of the conqueror could not deny, whatever the private and speculative opinions of indi- viduals might be respecting the original justice of the claim which had Termination of War. 157 been successfully asserted. Although title by conquest was acquired and maintained by force, and its limits were prescribed by the con- queror, yet humanity, acting upon private opinion, had established as a general rule, that the conquered should not be wantonly oppressed, and that their condition should remain as eligible as was compatible with the objects of the Conquest. Most usually they became incorporated with the victorious nation. Where this was practicable, humanity demanded, and a wise policy required, that the rights of the conquered to pro- perty should remain unimpaired, that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections and united by force to strangers. PART III.— NEUTEALITY (l). NEUTRAL TERRITORY. THE "ANNA." Temp. 1805. [5 C. Rob. 373.] Case.] During war between Great Britain and Spain a Spanish ship, sailing under American colours, with a cargo of logwood and specie, was captured whilst on a voyage from the Spanish Main to New Orleans, by the "Minerva" privateer near the mouth of the Eiver Mississippi. On the case coming (Z) It may be of assistance to the reader in studying the cases following, to remember that the Law of Neutrality includes two main topics, one dealing with the rights and obligations of the belligerent and neutral States as between themselves ; the other with the relations of the belligerent State towards neutral individuals. Amongst the principal rights of a neutral State we may enumerate the right to the inviolability of its territory, and to a compliance by either belligerent with its municipal regulations made in pre- servation of its neutrality (see the cases of the "Anna" and the "Twee Gebroeder," and for a more complete enumeration of neutral rights, Holland, Jurisprudence, p. 303). The right in regard to one belligerent naturally in- volves a duty towards the other. The duties of a neutral State seem to group themselves under two heads, one deal- ing with what the State must abstain from doing itself (see the case of the Swedish Frigates and note thereon) ; the second dealing with obligations which the neutral State must enforce on its own subjects and subjects of the other belligerent within its territory. The more important obligations of this class, are those of preventing the issue of commissions (see the case of M. Genet), of preventing the prepara- tion of hostile expeditions (see the Ter- ceira affair), and of preventing the con- struction or outfit of ships of war (see the case of the ' ' Alabama '■' and follow- ing cases), and of preventiligits territory from being used as a base of operations (see the case of the ' ' Shenandoah "). It is also bound to prohibit within its territory illegal enlistment, active or passive, or the participation by its subjects in hostile acts towai-ds either belligerent (see the case of Gideon Heniield and cases following). The fulfilment of these obligations is usually secured by provisions of municipal law (see Excursus on Neutrality Laws). Finally, the relation of the belligerent State towards neutral individuals in- . eludes an account of the liabilities of neutral trade, in the matter of the carriage of hostile goods on neutral ships, or neutral goods on hostile ships, the carriage of contraband, the breach of blockade, and the taking part in a trade closed to the neutral in time of peace (see cases under these heads). Neutral Territory. 159 before the English Prize Court a claim to ship and cargo was made by the American ambassador, on the ground that the ship was taken within the jurisdiction of the United States, at the distance of one and a half miles from the western shore of the principal entrance to the river, and within view of a fortified post, where an officer of the United States was stationed. As a matter of fact it did not appear that the actual capture took place within three miles of this fort, but it did appear that it took place, within three miles of some small mud islands, composed of earth and trees drifted down by the river, which formed a kind of portico to the main land. Judgment.] Sir W. Scott laid it down in his judgment as a well known rule, " terrce, dominium Jinitur ubijinitur armorutn vis," and stated that since the introduction of firearms that distance had been recognized to be about three miles from the shore. His lordship held that the three mile limit must be reckoned from the islands, these being the natural appendages of the coast on which they bordered, and on this ground restitution was decreed ; the reprehensible conduct of the captors being visited with costs and damages. The Anna, 5 C. Eob. 373. The principle of the inviolability of neutral territory was one of the earliest restraints placed upon belligerent operations. The rule does not appear to have been at first very strictly observed. Thus, in the year 1793, the French frigate "Modeste" was captured by the English in the harbour of Genoa ; no apology was offered for the violation of neutral territory, nor was the captured vessel restored (m). In the same year, however, the "Grange," a British ship, having been captured by the French in Delaware Bay, was, on application being made to the American Government, restored, on the ground that the inviolability of neutral territory protected the property of belligerents when within it (»). The right of neutral territory extends to the distance of three miles from the nearest shore. (wi) Hall's International Law, 2nd edition, 560. (») Kent's International Law, 303. 160 Cases and Opinions on International Law. The Court of the belligerent effecting the capture ought, under such circumstances, itself to decree restitution. In addition to this, if the captured vessel in such case comes within neutral jurisdiction, the neutral State ought to cause restitution to be made, unless, perhaps, in the case, suggested by Wheaton, of the vessel having been previously carried infra prcesidia of the enemy's country, and con- demned by a competent Court (o). Ortolan, however, suggests that even in this case restoration should be made ( p). Where a neutral fails in a proper case to restore a vessel captured in violation of its neutrality, the injured belligerent has a right to demand compensation from the neutral. The limits of this right are indicated in the case of the " General Armstrong " (cited below, p. 162). THE "TWEE GEBROEDER." Temp. 1801. [3 C. EOB. 336.] Case.] During war between Great Britain and Holland, several vessels were captured by the British in the Groningen Watt, on the ground that they were bound for Amsterdam then under blockade. The Watt is an arm of the sea, lying between East Friesland and Groningen. A claim for restitution was made by the Prussian minister on the ground that the capture took place on what was alleged to be Prussian territory, Prussia being _^t the time neutral. Con- demnation of the ships was decreed, it being held after a review of the facts, that the capture was not made on neutral territory. A question was also raised as to whether the capture was not invalidated, by reason of the belligerent ship having passed over neutral territory animo capiendi. Judgment.] Sir Wm. Scott, in his judgment, after giving an (o) Wheaton's International Law by (p) Diplomatie de la Mer, "Vol. II. Lawrence, p. 725. p. 303. Neutral TerHtory. 161 account of the history of the jurisdiction over the place, which it is unnecessary to insert here, laid down the following important principles with regard to the inviolahility of neutral territory, viz., (1) the act of a war vessel passing over neutral territory without violence was not considered a violation of the rights of that territory ; (2) the granting of a passage to troops of a belligerent through neutral territory would afford no ground of complaint to the other belligerent ; (3) the mere passage of a ship over waters claimed as neutral territory would not invali- date an ulterior capture, unless the passage was an unpermitted one over territory where permission was regularly required, or one under permission obtained on false representation. The Tivee Gebroeder, 3 C. Rob. 336. It is necessary to remark that at the present day, to allow passage of belligerent troops over neutral territory would probably be regarded as a violation of neutrality, and if the other belligerent chose so to regard it, as a cams belli. In other respects the principles laid down by Sir Wm. Scott may still be said to hold good ; though as was decided in the other case of the " Twee Gebroeder," if the capturing vessel is actually lying within neutral territory, even though the capture is made by boats outside, the capture is invalidated. THE "TWEE GEBROEDER." Temp. 1800. [3 C. BOB. 162.] Case.] During war between Great Britain and Holland four Dutch ships were captured by the British in the "Western Eems near the Groningen Watt, by boats sent from H.M. ship " L'Espiegle," then lying in the Eastern Eems. Restitution was claimed by the Prussian consul on the ground that the vessels were captured within the limits of Prussian territory. 162 Cases and Opinions on International Law. It appeared that the place where the warship herseK was lying, was at the most, three miles from East Friesland, and that at low tide it was immediately connected with the land. It was contended that the fact of the vessel herself heing stationed within neutral territory infected all captures made hy her boats outside. Judgment] Sir Wm. Scott, in his judgment, laid down that no proximate acts of war could be allowed to originate on neutral territory ; and such an act " as a ship stationing her- self on neutral territory and sending out her boats on hostile enterprises was an act of hostility much too immediate to be permitted. Restoration was accordingly decreed, but a claim for costs and damages was refused on the ground that the cap- ture arose from misapprehension and mistake, and not from an intention to violate what was clearly neutral territory. The Twee Gebi-oeder, 3 C. Eob. 162. THE "GENERAL ARMSTRONG." Temp. 1851. [Ortolan, Diplomatie de la Mek, Vol. II., p. 300.] Case.] In 1814, during war between Great Britain and the United States, the American privateer " General Arm- strong " was found by an Enghsh squadron in the harbour of Fayal, in Portugal. A detachment from the squadron on approaching the privateer was fired upon ; in consequence of which, on the following day, one of the vessels of the squadron took up its position near the privateer, attacked and succeeded in capturing it. Thereupon a claim was made by the United States against the Portuguese Government, for breach of duty in allowing a United States vessel to be captured within Portuguese territory. Portugal resisted this claim on the ground that the captain of the " General Arm- strong" had himseK engaged in belligerent operations. No Neutral Territory. 163 agreement could be arrived at ; but in 1851 the matter was submitted to the arbitration of Louis Napoleon, then President of the French EepubKc. The arbitrator held that as the captain of the privateer had not appHed at the outset to the neutral state, but had used force to repel the aggression, he had himself disregarded the neutrality of the territory, and had released its Sovereign from all obligations to protect him otherwise than by his good offices, and that the Portuguese Government could not from the time of his having done so be held responsible for the results of the collision that had taken place in contempt of its sovereign rights. The General Armstrong, Ortolan, Diplomatie de la Mer, Vol. H., p. 300. The decision in the above case was based on the principle that a belligerent who, when attacked on neutral territory, elects to defend himself, releases the neutral from all responsibility in respect of the violation of territory. THE "CAROLINE." Temp. 1843. [Paeliamentaky Papebs, 1843, Vol. LXI.] Case.] During the rebel raids on Canada a small passenger ship, the " Caroline," was made use of by the insurgents for the purpose of carrying arms and forces from the territory of the United States into Canada. The British officer in command determined on attacking the "Caroline" at a time when he expected she would be moored in British territory, near Navy Island, in the Niagara Eiver. When the attack was about to be made, it was found that she had altered her usual moorings, and had shifted to the United States side of the river. Notwith- M 2 164 Cases and Opinions on International Law. standing this the attack was made, the vessel was boarded, and after a short resistance sent down the Niagara. The affair was taken up by the United States Government, and war seemed imminent. In the negotiations which ensued Great Britain complained that a hostile expedition had been permitted by the United States Government without any effort being made to suppress it; that American citizens had supported seditious move- ments against Canada, and that one McLeod ( 'p'p) had been arrested when within United States territory and prosecuted for his part in the affair. The United States Government, on the other hand, complained that the attack was not such as was allowed under the necessity of self-defence ; that it was made upon a passenger-ship at night ; that it was an in- vasion of United States territory ; and that, though the case had been brought to the notice of the British Secretary for Foreign Affairs, unnecessary delay had taken place in the communication of his decision in the matter. The negotiations lasted over five years, but the matter was in the end settled amicably. The British Government expressed their regret for what had occurred, and that an apology had not been made at the time, and the United States accepted these explanations. The Caroline, Parliamentary Papers, 1843, Vol. LXI. This case is cited under neutrality as illustrating the rule that, though neutral territory is generally to be regarded as inviolable, yet overwhelming necessity may justify a departure from this principle. In the negotiations which ensued, the United States admitted this exception, though they called on Great Britain to show that such overwhelming necessity existed (if). (^) McLeod's case is referred to on United States authorities, see Whea- P- 75. ton's International Law (English edi- (g) For an account of the Fenian tion by Boyd), p. 517. raids on Canada and the action of the Neutral Duties. 165 NEUTRAL DUTIES {A) {qq). DISPUTE BETWEEN DENMARK AND SWEDEN. Tertyp. 1788. [Annual Ekgistek, 1788, 292 & 293 ; Phillimoeb's Intbenational Law, Vol. III. pp. 229—231.] Case.] In 1788, during war between Sweden and Russia, Denmark, in accordance with the provisions of a previous treaty to that effect, furnished Russia with troops. In spite of this, in a declaration of the 23rd of September, 1788, delivered to the Swedish Ambassador at Copenhagen, the Danish Government stated that they considered themselves at peace with Sweden ; that the peace would not be interrupted by the defeat of the Danish auxiliaries, and that Sweden had no ground of complaint so long as the auxiliaries did not exceed the number stipulated for. A counter-declaration was made by Sweden, on the 6th of October, to the effect that the doctrines set up by Denmark could not be reconciled with the Law of Nations, but in order to prevent war the Swedish Government declared themselves satisfied with the declaration that Denmark had no hostile views against their country. Dispute between Denmark and Sweden, Annual Register, 1788, 292 and 293 ; Phillimore's In- ternational Law, Vol. III., pp. 229—231. Much of the existing law of neutrality is of modern growth. The dis- pute referred to illustrates the fact that at the close of the eighteenth century, at least, it was not a definitely settled principle of Inter- national Law, that a neutral State must not supply troops to either (gq) It has been thought desirable the conduct of subjects of either belli- to treat of neutral duties under three gerent within its own territory. It is heads : (A) Duties of neutral state in impossible, however, always to keep regard to its own conduct ; (B) Duties the two latter topics apart. In the in regard to the conduct of its own "Alabama" and toUowing cases, they subjects ; and (C) Duties in regard to are unavoidably mixed up. 166 Cases and Opinions on International Law. belligerent. There can be no doubt, however, that at the present time it would be considered a flagrant violation of neutrality for a State to supply troops to a belligerent even under treaty. The other belligerent might justly regard this as a easui belli. SWEDISH FRIGATES SOLD TO MEXICO. Tenip. 1825. [De Maetbns Causes Celbbeks, Vol. V., p. 229.] Case.] In 1825, during the war between Spain and her colonies, the Swedish Government offered for sale three of its war vessels. They were ultimately purchased by two merchants, who resold them to London houses. It was then discovered that the vessels had been bought on behalf of the Mexican insurgents. The Spanish Secretary of Legation thereupon demanded the rescission of the contract. The Swedish Minister replied that precautions had been taken to prevent injury to Spanish interests, and a power of rescission had been inserted in the contract for sale. Later on the matter was taken up by Russia, and, after several conferences, instructions were given to the officers appointed to take the ships to England to wait for further orders. On account of the delay the English purchasers demanded a rescission of the contract, and the demand was complied with by the Swedish Government. Swedish Frigates sold to Mexico, De Martens Causes Celebres, Vol. V., p. 229. It is not permitted to a neutral State to lend money to either belligerent, to supply either belligerent with troops, to sell any article of war, to allow the passage of troops through its territory, to allow its Courts to decide upon the validity of captures of either Neutral Duties. 167 belligerent, or to acquire during the war any conquest made by either party. If a neutral State should deviate from its duty in any of these particulars, a just cause of war would be afforded to the State injured by its conduct. In addition to this, a neutral State is clearly precluded by the Law of Nations, from lending money to either belligerent, or from guaranteeing or promoting any such loan. Such a transaction, in spite of the opinion of Vattel, would now constitute as distinct a violation of neutrality as the sale of articles of war or the supply of troops. This seems to have been recognised by the United States as early as the close of the last century. During the war which prevailed at that time between Great Britain and France, two envoys were sent by the United States Government to the French Eepublic, in order to settle certain differences which had arisen between the two countries. In a despatch, dated March 23rd, 1798, the United States Government instructed its representatives that no treaty should be purchased with money, by loan, or other- wise, inasmuch as such a loan would violate the neutrality of the United States if). The precise limits of neutral duty in regard to loans and contributions by the subjects of a neutral State to belligerents, and the attitude taken up by our own Municipal Law towards such transactions are not so clear. A brief consideration of this subject wiU be found in Excursus II. (below). EXCURSUS II.— LOANS BY NEUTRAL SUBJECTS TO BELLIGERENT STATES. International Law does not prescribe the same strict limits to the subjects of a neutral State as it does to the State itself. The ever- increasing costliness of modem warfare and the necessity this im- poses on belligerent States of contracting loans in other countries, renders it worth while to consider how far a subscription or contri- bution to such a loan is restricted by International or Municipal Law. There are practically three questions for consideration : (1) How far is there any obligation imposed on the neutral State of prohibiting such subscriptions on the part of its subjects ? (2) how far will sub- scriptions, if at all, expose the subject to penal consequences in English law % and (3) how far will the English Courts deem such (r-) American State Papers, "Vol. II. p. 201. 168 Cases and Opinions on International Law. transactions, and agreements arising out of them, illegal or non- actionable % With regard to the first of these questions, it may be well to omit all reference to the opinions of the text writers, in view of the scanty deference paid to this source of law by English Judges. The usage of States, however, as indicated by official documents, and the opinions of official jurists given to their own Government, aiford a more trustworthy species of authority. We find the views of the United States on the subject clearly stated in 1842 by Mr. Webster. Reply- ing to a complaint made by Mexico in regard to a loan by the United States citizens to the Texan insurgents, he says : " As to advances and loans made by individuals to the Government of Texas, the Mexican Government hardly needs to be informed that there is nothing unlawful in this so long as Texas is at peace with the United States, and that these are things which no Government undertakes to prevent." In 1823 (probably on the occasion of a proposed loan in aid of Greek independence) the law officers of the English Crown gave an opinion on this subject to the following effect : (1) That subscriptions for the use of a belligerent by sub- jects of a neutral nation were inconsistent with neutrality and contrary to the Law of Nations, but that the other belligerent would not have a right to consider them as an act of hostility on the part of the Government, although they might affiard just ground of complaint if carried to any considerable extent ; (2) that loans for the same purpose, entered into merely with commercial views, would not be an infringement of neutrality, but if under colour of a loan a gratuitous contribution was afforded without interest, or at a merely nominal interest, such a transaction would be illegal. In accordance with these principles it seems to be the common usage of nations to allow such loans to be raised in neutral countries. Hence we may conclude, that whilst a voluntaiy subscription, if carried to any considerable extent, would be an infraction of neutrality, and afford just ground of complaint to the other belligerent, a loan raised in a neutral country as a purely commercial transaction, on which interest was bond fide undertaken to be paid, would be perfectly legitimate. Passing now to the question whether a subscription to any such loan might not involve penal consequences in English law, it seems that in 1823, on the occasion before referred to, the law officers of the Crown were asked for their opinion " as to whether, having regard to the Municipal Law of this country, there existed any, and what, means of proceeding against individuals and corporations engaged in 6uch subscriptions." Apparently confining themselves to voluntary subscriptions, which they pronounced illegal by the Law of Nations, they reported that such subscriptions might subject the parties con- cerned in them to a prosecution for misdemeanour, on account of their Neutral Duties. 169 obvious tendency to interrupt the friendship subsisting between this country and the other belligerents, and to involve the State in dispute, and possibly in the calamities of war. They went on to say, however, that such subscriptions had formerly been entered into without any notice having been taken of them by public authority ; that there appeared to be no instance of a prosecution for such an offence ; and they did not think that, even if the money had been actually sent, such a prosecution would be successful. They further reported that, if money had not been actually sent, a prosecution for conspiring to assist with money either belligerent would be attended with still greater difficulty ; and, that, in any case, criminal proceed- ings would not lie against a corporation, but only against such of its individual members as were proved to have acted in the transaction. In 1 873 the question was again raised with respect to subscriptions raised in England on behalf of Don Carlos. On this occasion, Mr. Gladstone, in reply to questions put to him in Parliament, re- ferred to the opinions given in 1823, and informed the House that, whenever information should be given to the Government from which there might appear any reasonable ground of expecting that an indictment for unlawful conspiracy to aid the invasion or disturbance of the peace of a foreign country at amity with us could be main- tained, the Government would be prepared to vindicate the law of the country. Thus the law on the subject appears to be still ambiguous and un- satisfactory. Mr. Gladstone, in 1873, deprecated any alteration of the law, in view of the fact that the Legislature had not long before been engaged in recasting the Foreign Enlistment Act, and that it was not desirable that changes on the subject should be made from day to day. He also referred to the risk of giving to cases of the kind a factitious importance. But whilst it seems clear, in spite of some contrary opinion, that a purely commercial loan by neutral subjects to a recognized bellige- rent is quite warranted by the Law of Nations and by modern usage, a question has been raised in some English and American cases, as to the validity of certain classes of loans at municipal law. It may be weU to premise that the borrower under such circumstances may occupy one of three different positions. The loan may be raised on behalf of an insurgent force whose belligerency is not recognized ; such was the position of the Cuban insurgents in the case of " The Vir- ginius." It may be raised on behalf of insurgent colonies or revolted states, whose belligerency is, but whose independence is not, recog nized by other nations; such was the position of the Confederate States during the American Civil War. Or, lastly, the loan may be raised on behalf of one of two fully-recognized states, at war with each other, but in amity with us, such as France and China. 170 Cases and Opinions on International Law. Passing to such authority as there is on the subject, we find a case of Be Wiitz V. Hendricks (9 Moo. C. B. 586), tried in 1834 before Chief Justice Best. In this case proceedings were instituted to recover a power of attorney and certain scrip receipts deposited with the defendant by the plaintiff in relation to a loan proposed to be raised on behalf of the Greeks against the Turkish Government. On the trial of the questions of law before the judges of the Common Pleas, Chief Justice Best refeiTed with approval to an opinion which he expressed in the Court below, " That it was contrary to the Law of Nations for any person residing in this country to enter into engage- ments by way of loan for the purpose of supporting the subjects of a foreign State in arms against a Government in alliance with our own, and that no right of action could arise on such transactions." He referred also to a similar decision of the Lord Chancellor, in the case of a proposed loan to the subjects of the King of Spain, but, from a note to Be Wiitz v. Hendricks, it appears that the case referred to was not then reported. In the case of Trissari v. Clement (1 1 Moo. C. B. 317) it was held that an action for libel would not lie for im- puting to a party fraud in connection with an illegal transaction, the illegal transaction being the " raising of a loan for a State at war with one in amity with the Government of this country." Chief Justice Best assumed throughout that the transaction was un- doubtedly illegal. It will be observed that, while in Be Wiitz v. Hendricks the illegality is stated to lie in raising a loan " for sup- porting the subjects of a foreign State in a war against a Govern- ment at peace with Great Britain," in Trissari v. Clement it is ex- tended to the case of a " loan to a State at war with one in amity with the Government of this country." This manifestly covers the case of a loan to one of two fully recognized States. Such a doctrine, if it could be sustained in its widest extent, would be fraught with the most dangerous consequences to the mercantile community. If a loan of a purely commercial nature to a belligerent State were illegal, all agreements arising out of it would be equally tainted, and a subscrip- tion to such a loan, even though procured by fraud or misrepresenta- tion, would afford no right of action. In Thompson v. Powles (2 Simon, 194) it was held that, where the plaintiff had been induced by false representation of the defendant to purchase bonds issued by a colony which had revolted from Spain, he was still not entitled to relief, because the original transaction was void. It would seem, however, that the doctrine of the illegality of such loans must be confined to those raised on behalf of insurgent forces or States, though it appears to include loans to insurgent States whose belligerency has been recognized. In the case of Trissari v. Clement, already referred to, though the dictum of Chief Justice Best Neutral Duties. 171 is as stated above, yet the facts show that the question really at issue was the validity of a loan to an insurgent State. In the American case, Kennet v. Chambers (14 Howard, 38) a con- tract was made in Cincinnati after Texas had declared itself inde- pendent, but before its independence had been recognized by the United States, under which money was to be furnished to a general in the Texan army to enable him to raise and equip troops to be employed against Mexico. The Court held that the contract was illegal and unenforceable. The Court expressly said : " It is not now necessary to decide how far a judicial tribunal of the United State's would enforce a contract like this when two States acknowledged to be independent were at war and this country neutral," and went on to base its decision on the fact that Texas had not yet been recognized by the United States Government. Here, as in De Wiitz v. Hendricks, it is clear that the illegality lay in the raising of a loan on behalf of a non-recognized State ; but it is worthy of remark that the Court did not in any way intimate that a loan to a fully-recognized State would have been legal, but merely left the case out of its consideration. Despite this fact, and one or two obiter dicta that may be found in other cases, it can scarcely be doubted that a purely commercial loan to a fully-recognized belligerent State is free from the taint of illegality. Such cases as . dispatches from belligerent government to agents abroad, 234, 235 maUbags, ib. discussion as to position of enemy envoys, 235-238 CONTRACTS, effect of outbreak of war on, 108-110 CONVOY, See Visit and Search Convoy. DANUBE, 24 DEBTS, apportionment of State debts, 12 effect of outbreak of war on debts, 106, 107 DECLAEATION OF WAR. See Was. DELAGOA BAY QUESTION, 262 DESPATCHES, contraband character of, 233, 234 DIPLOMATIC AGENTS, different classes of, 67 DOMICILE, 60-65 definition of, 61 of origin, ib. of choice when acquired, 62 effect of abandoning, ib. change of, in time of war, ib. commercial, 62-64 relinquishment of hostile, on outbreak of war, 123 DULCIGNO DEMONSTRATION, 101 Index. 269 EAST INDIA COMPANY, 5 EGYPT, position of, 6, 7 political changes in, from 1873 to 1883, 7 EMBARGO, liostile, 100 civil, ih. ENEMY CHARACTER, 12I-I3I what determines, domicile in enemy's country, 122 what is enemy's country for such purpose, 217 commercial domicile in enemy's country, 122 property connected with establishment in same, ih. relinquishment of domicile, 123 property grown on enemy's soil, 122-125 engaging in enemy's trade, 125-128 enemy goods on neutral ships, 127, 128 assignments of property in transiiu, 128-130 assignments of ships in transitu, 130, 131 neutral ships employed in enemy's trade, 131 sailing under enemy's flag, ib. exception, ib. EXPENSES, neutral carrying hostile goods cannot generally claim, 210 EXTERRITORIAI.ITY, of ships, 30, 32-35 effect of trading on, 30 opinion of Geneva Tribunal as to, 204 of foreign sovereigns, 49, 50 of military forces, SO of subjects of Western States in Eastern countries, ib. of ambassadors, 66-73 FLAG, finality of, 92, 93 vessel under hostile, generally regarded as enemy, 131 exception, ib. FOREIGN ENLISTMENT, American cases and Acts of Congress, 172-175 English cases and statutes, 175-181 applicability of Foreign Enlistment provisions to vessels fitted out for insurgents, 178 liabOity of state for vessels fitted out for a belligerent in its territory, 181 regulations of foreign States, 181-183 270 Index. FOREIGN SOVEREiaNS, 49-54 exterritoriality of, 49, 50 extent of privilege, ih. when amenable to iurisdiction, as to persons, 50, 51 as to property, 51, 52 effect of attorning to jurisdiction in privilege, 53, 54 FOREIGN STATES. See States. FORMOSA, declaration of blockade of coast of, 1884, 101, 216 FREE SHIPS FREE GOODS, AND HOSTILE SHIPS HOSTILE GOODS, 206, 207 FREIGHT. See Neutral Trade. GENEVA ARBITRATION AND AWARD, 200-204 GERMANIC CONFEDERATION, 8 GROTIUS, definition of contraband, 222 immunity of ambassadors, 73 HALL, W. B., definition of State, 4 suggestion as to jurisdiction over merchant vessels in territorial waters, 44 opinion as to position of insurgents, 87 what constitutes privateering, 94 legality of pacific blockade, 101 liability of state in regard to war vessels built for a belligerent in its territory, 181 contraband character of coal, 227 HEFFTER, opinion as to when revolted colony or province should be recognised as independent, 11 HISTORIOUS (Sir William Vemon Harcourt), opinion as to when revolted colony or province should be recognised as independent, 12 opinion as to 59 Geo. III. c. 5, s. 7, 177 HOLLAND, definition of State, 4 Index. 271 HUSKISSON, opinion as to 59 Geo. III. o. 5, s. 7, 177 INSURANCE, on trade with the enemy, 117 on contraband goods, 229 mSUEGENTS, position of, before recognition of belligerency, 87 applicability of foreign enlistment provisions to vessels fitted out for, 178 INTERNATIONAL PERSONS. See States. distinction between normal and abnormal, 4 abnormal, 5 revolted provinces, i5. trading corporations, iJ. INTEKOCEANIC CANALS. See Rivers and Intbboceanic Canals. IONIAN ISLANDS, 8 LAWRENCE, T. J., suggestions as to future of Suez Canal, 28 view as to recent discussion on Clayton-Bulwer Treaty, 29 LETTERS OF MARQUE, position of holders of, 83, 84 See Privateers. LIMITATION OP PRIZE SUITS, 151, 152 LOANS BY NEUTRAL SUBJECTS TO BELLIGERENT STATES, 167-171 valid at International Law, 168 171 unless only colourably loans, really gifts, 168 when made to insurgents, 169-171 English and American oases as to, 170, 171 MILITARY PERSONS, contraband character of, 232, 233 MILITARY SERVICE. See Natubamzation. MISSISSIPPI, 25 273 Index. MONACO, 8 MONEOB DOCTRINE, 5 MONTENEGRO, regulations of Treaty of Berlin as to, 9 MOSQUITO PROTECTORATE QUESTION, 258 NATIONALITY. See Political Status. NATURALIZATION, when allowed by parent State, 57, 58 when allowed by State to which affiliation is proposed, 58, 59 in fraud of military service, 59, 60 NAVAL AND MILITARY PERSONS, contraband character of, 232, 233 NEUTRAL DUTIES, as to supplying troops, 165, 166 selling articles of war, 166 allowing passage of troops through territory, ib. deciding in prize cases, ib. acquiring conquests made by either belligerent, 167 lending money, i5. consequence of breach of duty, ih. neutrals must prohibit hostile preparations, 183-189 but may permit replacement of force, 189 must restore prizes captured in violation of neutrality, 190, 191 liability incurred through captures made by vessels fitted out in neutral territory, 191-198 even after vessels commissioned by belligerent, 204 /See EoREiGN Enlistment. NEUTRAL TERRITORY, 158-164 extent of, 159 inviolability of, ih. not at first strictly observed, ih. course to be taken on capture within, 160 exception suggested by Wheaton, %b. what is violation of, 161, 162 efifect of violation, 189 right of injured belligerent against neutral, 160 when right lost, 163 when hostilities allowed in, 164 position of prizes in, 196-198 Index. 273 NEUTRAL TRADE, 205-212 former liability of enemy property on neutral vessels, 206, 207 principles modified by Convention, 207 Declaration of Paris, ih. according to French courts neutral not entitled to compensation where his goods destroyed, 208 captor of belligerent ship forwarding neutral goods to destination entitled to freight, 209 similar rule in case of goods of his own subject, ih. captor of neutral ship with enemy goods liable for freight, 210 but not for other expenditure, ih. neutral cannot trade between two belligerent countries, 211, 212 divergent views as to neutral goods on armed hostile vessels, 250, 251 NEUTRALITY. See, Angary, Blockade. Continuous Voyages, Doctrine or. Con- traband. Loans by Neu i ral Subjects to Belligerent States. Neutral Duties. Neutral Territory. Neutral Trade. Bulb or THE War of 1756. Visit and Search Convoy. NORTH BORNEO COMPANY, .5 OCCASIONAL CONTRABAND, 22.5 OREGON CLAIMS, 260 ORTOLAN, suggestion as to captures made within neutral territory carried infra, prcesidia of enemy, 160 definition of contraband, 222, 223 OTTOMAN EMPIRE, admission of into family of civilized uationa, 4 PACIFIC BLOCKADE, definition of, 100 examples of, ih. legality of, 101 opinion of Hall on, ih. PANAMA CANAL, 28 PAPER BLOCKADE. See Blockade. PASSAGE, , ^ 1 ^ -J. in of belligerent troops through neutral territory, 161 274 Index. PEACE, effect of treaty of, 151 PEACE, TEEATY OF, effect of, 151 PERMANENTLY NEUTRAL STATES, 8 PIRACY, 81-94 definition and description of, 82, 83 pirate must be tried, 82, 92 effect of municipal regulations, 83 property captured from pirates, ih. offences usually classed with piracy, 83 85 holders of letters of marque, 83, 84 aggression by persons without commission, 84, 85 insurgents when pirates, 87 See Pkivatbbrs. POLITICAL STATUS, how determined in different countries, 55 English statutes on subject, ib, POSTLIMINIUM, what is, 142 as to persons, ih. movable property, ih. immovable property, ih. property captured at sea, 143 unnecessary as to property recaptured from pirates, 83 PRE-EMPTION, doctrine of, 226, 227 PRIMACY OF GREAT POWERS, 4 PRIVATEERS, what are, 94 arguments in favour of and against, ih. liable to visit and search, ih. provision as to, in Declaration of Paris, ib. PRIZE AND BOOTY, 132-143 origin of jurisdiction of Admiralty Courts in, 133 distribution of prize, 133-135 booty, 135-137 distinction between, 138 when title to prize complete, 141 adjudication necessary, although ship destroyed, 151, 153 limitation of prize suits, 151, 152 position of prizes in neutral territory, 196-198 Index. 275 PKIZE COURTS, functions of, 138 may not be erected in neutral territory, ih. procedure of, in England, 138, 139 procedure in belligerent, does not oust neutral jurisdiction, 189 PROVISIONS, when contraband, 224, 225 RANSOM CONTRACTS. See War. RECAPTURE. See Salvage. REPRISALS, definition of, 100 RESTORATION OF AUTHORITY, EFFECT OF, as to changes in Constitution and laws, 155 private rights acquired under foreign regime, ib. dispositions of State property, ib. debts, ib. RETORTION, definition and illustrations of, 99 REVOLTED COLONY OR PROVINCE, recognition of independence, when it should be made, 11, 12 Heffter's opinion, 11 Historicus' opinion, 12 position of affairs on establishment of independence, 12 on parent State re-establishing authority, 12, 13 on recognition uf belligerency, can exercise belligerent rights, 189 RHINE, 23 RIVERS AND INTEROCEANIC CANALS, 23-29 general rules as to property and user, 23 eflfect of Treaties of Paris and Vienna on, ib. Rhine, 23 Danube, 24 Mississippi, 25 St. Lawrence, 26 Suez Canal, ib. Panama Canal, 28 ROUMANIA, provisions of Treaty of Berlin as to, 9 no longer semi-sovereign, ib. 276 Index. BOUMELIA, provisions of Treaty of Berlin as to, 8 recent revolt in, 9 in twHs RULE OF THE WAR OF 1756, 238, 241 what it is, 240 quaere whether a settled rule of International Law, ib. importance now diminished, ih. opinion of Mr. Arnould as to insurance to protect trade infringing, ib. superseded during Crimean War, 240, 241 ST. LAWRENCE, 26 SALVAGE, 143-150 no proceedings for permissible against public vessel, 34, 35 jurisdiction in salvage cases, 143-145 definition of salvage, 145 practice on recapture of property of one's own subjects, ib. property of ally, 146, 147 neutral property, 147, 148 of Great Britain on recapture of ship converted by enemy into war-ship, 149, 150 SAN MARINO, 8 SAVLGNY, definition of domicile, 61 SERVIA, provisions of Treaty of Berlin as to, 9 no longer semi-sovereign, ib. SHIPS, See Vessels. SLAVE TRADE, 76-81 early cases on subject, 78 not piracy ^'are gentium, ib. treaties on subject, 81 course to be pursued when slaves on board public vessels, 38-40 SOIL, produce of soil of enemy territory, 122-125 SOVEREIGNS. See Foreign Sovereigns. STATE AGENTS. See Ambassadors. STATE JURISDICTION, 14-22 Index. 277 STATES, 1-13 definitions of, 2-4 when international persons, 4 when recognition should be accorded, ib. equality of, ib. union of, personal, 5 confederate, ih. German Confederation, ib. semi-sovereign, definition of, 7 examples of, 7, 8 characteristics of, 8 effect of Berlin Treaty on certain serai-sovereigii states, 8, 9 permanently neutral, definition of, 8 characteristics of, ii. examples of, ih. See Revolted Colony or Province. STATUTES, for United States Acts of Congress, see United States Acts of Con- gress. 25 Edw. III. St. 12 ; 55 15 Rich. n. c. 3 ; 15 28 Hen. VIII. c. 15; 15, 16 3 Jac. I. c. 4 ; 176 1 W. & M. c. 8 ; ib. 7 Anne, c. 5 ; 55 7 Anne, c. 12 ; 71, 72 9 Geo. II. c. 30 ; 176 13 Geo. ni. c. 21 ; 55 29 Geo. 11. u. 17 ; ib. 39 Geo. III. c. 37 ; 15 59 Geo. III. c. 5 ; 176, 177 3 & 4 Geo. IV. c. 44 ; 26 3 & 4 Geo. IV. c. 119 ; *. 6 Geo. rV. c. 49 ; 85 2 & 3 Will. IV. o. 53 ; 133 4 & 5 WiU. IV. c. 36 ; 15 3 & 4 Vict. c. 22 ; 132 3 & 4 Vict. c. 65 ; 132, 133 7 & 8 Vict. c. 2 ; 15 27 & 28 Vict. o. 25 ; 120, 138 33 & 34 Vict. c. 90 ; 177, 180 33 & 34 Vict. c. 102 ; 55, 57 41 & 42 Vict. >;. 73 ; 22 SUEZ CANAL, 26 SWITZERLAND, permanently neutral, S 278 Index. THREE MILE LIMIT, 16 et seq. TRADING WITH ENEMY DURING WAR. See Wab. TRANSFERS OF PROPERTY IN TIME OF WAR, 128-131 as to goods, 128-130 ships, 130, 131 TREATIES AND CONVENTIONS, 1756, Westminster, 98 1763, Paris, 25 1780, First Armed Neutrality, 223 1783, Great Britain and United States, 255, 259 1794, London, 26, 37, 223 1795, San Lorenzo el Real, 25 1800, Second Armed Neutrality, 223, 249 1801, Great Britain and Russia, 249 1814, Paris, 23, 24 1815, Paris, 113 1815, Vienna, 23, 24, 27 1818, Great Britain and United States (Convention), 256 1831, Great Britain and France, 81 1831, Mayence, 23, 24 1833, Great Britain and France, 81 1841, Great Britain, Austria, France, Prussia and Russia, ib. 1842, Berlin, 95 1842, Breslau, ib. 1842, Dresden, ib. 1846, Great Britain and United States, 261 1850, Clayton Bulwer, 28, 258 1854, Great Britain and United States, 256 1856, Treaty of Paris and Declaration annexed thereto, 4, 24, 94, i 207, 216 1859, Great Britain and Honduras, 259 1862, Washington, 81 1868, Great Britain and United States, 201 1869, Johnson-Clarendon Convention, ib. 1870, Great Britain and United States, 81 1871, (Convention as to Navigation of Danube), 25 1871, Washington, 26, 201, 257, 262 1878, Berlin, 8, 9 UNITED STATER ACTS OF CONGRESS, 1794, NeutraUty Act, 37, 172, 173 1818, Neutrality Act, 173 1868, Naturalization, 58 UTT POSSIDETIS prevails on termination of war in absence of provision to contrary, 151 Index. 279 VESSELS, Pahli>:, 30-41 exterritoriality of, 30, 32-35 effect of trading on, 30 what are, 31 what is evidence of public character, 189 mail steamers plying between Great Britain and Prance to be considered as such, 31, 235 jurisdiction over when on high seas, 33 in territorial waters or foreign harbours, 33 in salvage cases, 35, 36 no process can be served on board, 36, 37 should not harbour criminals, 37, 38 course to be pursued when slaves on board, 38-40 instructions of British Government on subject, 39, 40 duties of, 41 rights of, in order to enforce duties, ih. Private, 42-48 jurisdiction over, on the high seas, 43, 44 in territorial waters or foreign harbours, 42, 43, 44 French law on subject, 45 putting into port in distress, 45, 46, 48 through compulsion of crew, 47 sale of war vessel to belligerent government, 189 when vessel liable for carrying contraband, 227-229 VIENNA, Congress of 1815, 67 VISIT AND SEARCH, CONVOY, 247-252 right of visit and search, what is, 248 how exerciseable, ih. exerciseable iq time of peace only in certain cases, 77, 78, 250 for slave trading, 76-81 divergent views as to neutral property on armed enemy vessels, 250, 251 right of convoy, what is, 248 according to English law, not enforceable withouttreaty, ih. treaties on subject, 249 regulations of foreign States on subject, 250 srmhle, neutral vessels may be placed under enemy convoy, 252 WAR, steps short of, 95-102 Sue Eetobtion, Reprisals, Embargo, Paoific Blockade. declaration of, necessity of, 103 modern practice, ih. ^80 Index. WAR — continued. effects of outbreak of, 104-] 10 on property in territory of enemy, 104, 105 on debts, 105-107 on contracts, 107-110 trading with enemy during war, 110-119, 125-128 illegal, except with permission. 111 even with places in temporary occupation of enemy, 112 not prohibited to States under protection of belligerent, 113 removal of property from enemy country illegal, 113, 114 except where effected on outbreak of war, 114 property of allies trading with enemy confiscable, 115 trade with belligerent government, 125-128 enemy goods on neutral ships, 127 cartel ships must not trade, 116 contracts made in furtherance of trade with the enemy, 117 what trade with the enemy is permissible, 1 18 ransom contracts, nature of, 120 effect of accepting ransom bill, ih. practice of France, Holland, and Great Britain on subject, ih. sometimes prohibited by municipal law, ih. termination of, 150-157 how brought about, 151 effect of, ib. effect of future date being fixed for, ilj. ignorance of termination, 151, 152 See, Restoration of Authoeity, Effect of. WHEATON, opinion as to recognition of States, 4 suggestion as to captures within neutral territory carried infra proesidia of enemy, 160 THE END. ERADBTTRY, AllNKW, & CO., PRINTKRS. WKITErRI ARS,,