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 JX 2582.L3 1884 
 The law of nations considered as indepen 
 
 3 1924 007 470 093 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
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 http://www.archive.org/details/cu31924007470093 
 
THE 
 
 LAW OE NATIONS 
 
 CONSIDERED AS 
 
 INDEPENDENT POLITICAL COMMUNITIES. 
 
 PART I. 
 
Honiron 
 
 HENRY FEOWDE 
 
 OXFORD TJIiriVEBSITTr PBESS ■WABEHOtTSE 
 
 AMEN CORNER 
 
THE 
 
 LAW OF NATIONS 
 
 CONSIDEKED AS 
 
 INDEPENDENT POLITICAL COMMUNITIES; 
 
 ON THE EIGHTS AND DUTIES OF NATIONS 
 IN TIME OF PEACE. 
 
 BY 
 
 SIR TRAVERS TWISS, D.C.L., F.R.S. 
 
 MBMBEE OP THE INSTITUTE OF INTEENATIOKAL LA"W, 
 AND ONE OP HEB MAJESTY'S COTJNSEI. 
 
 A NEW EDITION, BEVISED AND ENLAK&ED. 
 
 OXFORD: 
 
 AT THE CLARENDON PRESS. 
 
 SOLD BY LONGMANS, GREEN, AND CO., 
 
 39, PATEKNOSTEK ROW, LONDON J 
 
 AND BY HENRY FROWDE, 
 
 OJCrORD UNIVEBSITT PBESS WAEEHOUSE, AMEN CORNER, LONDON. 
 1884. 
 
 [ The right of trwnslation and all other rights reseroed.] 
 
^ CORNELL^ 
 
 university; 
 
 \ 
 
 UBRARV 
 
PKEFACE 
 
 TO THE SECOND EDITION. 
 
 The object, which the author has had in view in 
 undertaking to treat of the Law of Nations, has 
 been to present to the student of that branch of 
 International Law, which is conversant with the 
 Eights and Duties of Nations as Independent Poli- 
 tical Communities, a systematic outline of the 
 existing rules of international conduct, by which 
 the harmony of the National State-System of Chris- 
 tendom is maintained, and to the advantages of 
 which the Ottoman Empire was admitted by the 
 Treaty of Paris (1856). The author makes no pi-e- 
 tension to discuss any theories of International 
 Ethics, as furnishing rules, by which the intercourse 
 of independent States ought to be guided. He has 
 been content to examine into the existing usages of 
 State-Life, and to illustrate the modifications and 
 improvements which they have undergone from 
 time to time, whereby they have been adjusted to 
 the growing wants of a progressive civilisation. 
 Further he has taken occasion, where the subject- 
 matter has permitted him, to analyse those usages, 
 with a view to discover whether a given rule has 
 been the result of an application of some principle 
 of Right (Jus) to international relations, or is 
 
VI PREFACE 
 
 merely the offspring of an instinctive appreciation 
 on the part of independent political bodies of what 
 is necessary for their existence, or is conducive to 
 their mutual well-being. 
 
 The disappearance of small States from the Na- 
 tional State-System of Europe, and more particularly 
 of the minor Germanic States, which were recog- 
 nised as members of the Family of Nations for the 
 first time at the Peace of Westphalia, constitutes a 
 most remarkable feature of change in the political 
 map of Central Europe, as it was adjusted at the 
 Congress of Vienna (1815) in accordance with what 
 was then regarded as a consensus gentium. Since 
 that Congress the States of Europe have been in- 
 sensibly led to subordinate, by means of Interna- 
 tional Conferences, their particular interests to 
 the general welfare of the European Community of 
 States ; so much so, that the present Age has been 
 designated " the Age of Congresses," and certain 
 writers have maintained that a consciousness of 
 duty on the part of individual States towards the 
 Community of States is a peculiar growth of the 
 present century, and deserves to be noted as its dis- 
 tinctive characteristic. Whatever j ustice there may 
 be in this view, it deserves remark, that the consti- 
 tution of a New Germanic Empire and the unifica- 
 tion of Italy have been accomplished without a 
 Congress. On the other hand, changes in Eastern 
 Europe, apparently not of so great importance as 
 regards the European equilibrium, but nevertheless 
 tending to the dismemberment of the Ottoman 
 Empire, which was brought into alliance with 
 
TO THE SECOND EDITION. vii 
 
 Christendom for the first time by King Francis I. of 
 France in the early part of the sixteenth century 
 with a view to establish an European equilibrium 
 against the Emperor Charles V., have been held to 
 require the sanction of a Congress. The explana- 
 tion may be sought for in the circumstance that the 
 independence of the new Kingdoms of the Lower 
 Danube required international recognition, to say 
 nothing of the fact that the fortune of war had 
 entailed upon the Ottoman Porte the necessity of 
 ceding to Russia certain districts on the Southern 
 bank of the Danube, in exchange for which Rou- 
 mania had to cede back to Russia certain portions 
 of Bessarabia, which had been detached from Russia 
 under the provisions of the Treaty of Paris (1856). 
 The ink of this latter Treaty had not so entirely 
 faded away as the ink of the Treaty of Vienna 
 (181 5), besides the ink of the First Protocol of the 
 Conferences of London (1871) was still fresh, under 
 which it had been solemnly declared to be an essen- 
 tial principle of the Law of Nations, that no Power 
 can free itself from the obligations of a Treaty or 
 modify its stipulations without the consent of the 
 contracting parties by means of an amicable under- 
 standing. The various changes, which have taken 
 place in the political organisation of. the European 
 State-System, and which may be said to have revo- 
 lutionised the settlement of Vienna (1815), have 
 been fully noticed in the three Chapters on the Na- 
 tional State-Systems of Christendom, the Ottoman 
 Empire, and the Kingdoms of the Lower Danube. 
 It is difficult to determine with precision the 
 
viii PREFACE 
 
 degree in which Egypt may be considered to have 
 been brought within the sphere of the Public Law 
 of Europe by the admission of the Sublime Porte to 
 the advantages of that Law and of the European 
 Concert. Qui sentit heneficium, sentire debet et onus 
 is a maxim applicable to States equally as to. indi- 
 vidual persons ; and if Egypt is supposed to be en- 
 titled to the benefits of the Concert of civilised 
 Europe she must be content to share its obligations. 
 The growth of the Khediviate has been detailed in 
 the Chapter on the Ottoman Empire, but a very 
 cursory allusion has been made to the Suez Canal, 
 as according to its original Statutes the Canal was, 
 strictly speaking, a commercial enterprise, and its 
 trafftc was to be confined to merchant vessels to the 
 exclusion of ships of war and naval transports; but 
 it is obvious that the opening of a continuous 
 water-way between the Red Sea and the Mediterra- 
 nean, and the recent admission of ships of war to 
 its navigation, have altered materially the character 
 of what has been termed the Eastern Question. 
 The project which the genius of Leibnitz first sug- 
 gested to King Louis XIV. of France for effecting 
 the conquest of Egypt, and for converting the Medi- 
 terranean Sea into a French Lake, with a view to 
 counterbalance the preponderance of the House of 
 Austria, has become eliminated from the category 
 of practical politics by the opening of a maritime 
 canal across the Isthmus, and by the fact of 
 the Mediterranean Sea having thereby been made 
 the highway of international commerce between 
 Europe and the far East. 
 
TO THE SECOND EDITION. ix 
 
 This result may give rise to juridical questions of 
 novelty, which may require to be ultimately settled 
 by a Congress, seeing that the principle, upon which 
 the tariff of the Suez Canal had to be settled, has 
 already been the subject of an European Congress 
 under the presidency of the Sublime Porte. A 
 more serious consequence, however, of the opening 
 of the Canal will probably be found in the imme- 
 diate friction that it will create between the Chris- 
 tian States of Europe and the uncivilised tribes of 
 Islam, which occupy both shores of the Red Sea, 
 the strain of which may jeopardise the general 
 relations of amity between Christendom and the 
 Mahommedan world, more especially if the success- 
 ful revolt of the Soudanese, under the leadership of 
 the Mahdi, should produce a schism in the Kaliph- 
 ate. In consideration of these and other circum- 
 stances, which have brought the Ottoman Empire 
 into direct relations with the various States of 
 Christendom, the author has thought it useful to 
 append a Chapter on the Capitulations of the Otto- 
 man Porte. He has not, however, entered into any 
 exposition of the details of those Capitulations, in- 
 asmuch as the details belong to a branch of Inter- 
 national Law, which is beyond the scope of the pre- 
 sent work. It may be useful also for the student 
 to bear in mind that the Ottoman Porte in becoming 
 a party to Article LXII. of the Treaty of Berlin 
 (1878) has shown an increasing willingness on its 
 part to adjust its civil institutions to the general 
 European standard, at the same time that it has 
 undertaken specific obligations in addition to the 
 
X PEBPACE 
 
 general obligation, which it has incurred under the 
 Treaty of Paris (1856). 
 
 Another question in connection with Africa has 
 already assumed a prominent place inter apices 
 juris Gentium, if I may so say, namely the capacity 
 of private associations of a philanthropic character 
 to accept cessions of territory with full rights of 
 dominion from the native chiefs of Africa, so as to 
 acquire for any settlements which they may esta- 
 blish in such ceded territory a Status, which in due 
 course -of time will warrant on the part of the 
 nations of Christendom a recognition of suqh settle- 
 ments as independent States. It is not 'disputed 
 that Chartered Companies established for purposes 
 of commerce are capable of acquiring an interna- 
 tional status in cases where they have obtained 
 cessions of territory with full rights of dominion 
 from native chiefs. Examples which illustrate this 
 position of Public Law in reference to Asia and 
 America are too numerous to require citation. They 
 abound in the far East, where chartered companies 
 have been the pioneers of European civilisation; 
 whilst on the shores of the Northern Continent of 
 the Western Hemisphere voluntary associations of 
 emigrants are found to have settled there, and to 
 have acquired full rights of dominion by the side 
 of chartered companies. In Africa, on the other 
 hand, cases of voluntary associations establishing 
 settlements on the coast are rare, and as long as 
 the slave trade was the staple trade of the Western 
 Coast, such settlements would have been out of 
 place. It need not, therefore, excite any surprise 
 
TO THE SECOND EDITION. xi 
 
 that, until the African slave trade had been placed 
 under an international ban by the Congress of 
 Vienna (1815), no private association should have 
 ventured to form a settlement on the West Coast 
 of Africa. In the year, however, immediately 
 following the Congress of Vienna, namely in 1816, 
 a private association of philanthropists was formed 
 at Washington in the United States, under the title 
 of " the American Colonisation Society for the 
 establishment of free men of colour of the United 
 States." After several failures this Association 
 obtained in 1821 the cession of a considerable 
 tract of territory, on the Pepper Coast of Upper 
 Guinea, with full rights of dominion from the 
 native chiefs. The Association thereupon esta- 
 blished within their newly acquired territory a 
 community of emancipated slaves, as the nucleus 
 of a future State, which was supplied with ample 
 funds for the maintenance of an orderly govern- 
 ment under the direction of its founders down to 
 the year 1839. In that year, or about that year, 
 it would appear that an objection was raised on the 
 part of one of the European Powers to the right of 
 the Administrative Council of the Settlement to 
 levy custom dues on foreign merchants trading with 
 the Settlement, whereupon the Settlement, with the 
 consent of the Association at Washington, declared 
 itself to be an Independent State under the title of 
 the Commonwealth of Liberia, and subsequently, in 
 the year 1847, assumed the title of the Republic 
 of Liberia. Its independence has since been recog- 
 nised by the leading States of Europe and America, 
 
XU PREFACE 
 
 including Portugal, with which power the Republic 
 of Liberia concluded a treaty on the 4th of March, 
 1865, in which it was declared that by the laws 
 of Portugal and of the Republic of Liberia the slave 
 trade is assimilated to the crime of Piracy. Since 
 Liberia has declared itself to be an independent 
 repullic, an adjoining settlement, which had been 
 form'jd under similar circumstances, and was named 
 Maryland, has made overtures to unite itself to 
 Liberia, and those overtures are still under con- 
 sideration. Meanwhile the Republic of Liberia 
 has under its dominion an area of nearly 9,600 
 square miles with a population of about 18,000 
 civilised, and 1,000,000 aboriginal negroes. The 
 political constitution of the Republic of Liberia, 
 as settled in 1847, ^^^ been printed in the British 
 and Foreign State Papers, vol. 35, p. 1301. 
 
 The first foreign recognition of the independence 
 of the Republic came from Great Britain in 1848, 
 when Lord Palmerston was Minister of Foreign 
 Affairs, at which time President Roberts, of Liberia, 
 came over to London from Monrovia, the capital of 
 the Republic, to negotiate a treaty with England, 
 and returned afterwards to Monrovia, where he 
 ratified it as President 1. As far, therefore, as pre- 
 cedents are concerned two instances may be cited 
 within a comparatively recent time, which tend to 
 shew that the juridical difficulty, which has been 
 suggested to be in the way of private associations 
 
 ^ The author made the ao- having met him at dinner at 
 quaintance of President Roberts, the house of M. Drouyn de 
 as he passed through Paris, Lhuys. 
 
TO THE SECOND EDITION. xiii 
 
 forming settlements in Africa, and acquiring for 
 their settlements full rights of dominion— the right 
 of Empire over the territory ceded to them — 
 is without foundation. The question has recently 
 become one of practical interest in regard to the 
 settlements established within the last few years 
 in Central Africa, on the banks of the Upper 
 Congo, by a philanthropic association, which has its 
 head-quarters at Brussels under the title of L' Asso- 
 ciation Africaine Internationale. The analogy of 
 its proceedings to those of the Washington Associa- 
 tion is striking. In the first place the Washington 
 Association had no mandate from the Government 
 of the United States, and for good reason, because 
 the Slave States of the Union possessed a political 
 preponderance in 1 8 1 6. In the second place, Liberia 
 was founded to promote the emancipation of the 
 negro slave, whilst Leopoldville, which may be re- 
 garded at present as the head settlement of the 
 Brussels Association, has been founded to combat 
 the slave trade. In the third place, Liberia re- 
 mained for a quarter of a century or longer under 
 the immediate direction of its founders, and was 
 assisted from time to time with grants of money 
 from their treasury. In like manner the various 
 settlements of the African International Association 
 are still subsidised by grants from the Association, 
 and will continue to receive such support until their 
 resources will warrant them in declining it. There 
 is, however, a feature in the system of the Brussels 
 Association, which distinguishes it from that of 
 Washington. It exercises no political control over 
 
XIV PEEFACE 
 
 its settlements on the Upper Congo further than 
 that it has taken measures to secure that the fron- 
 tiers of its settlements shall be open freely to the 
 commerce of all the world, and that any stranger who 
 may wish to establish himself at any of its stations 
 shall be welcome to the same rights and privileges, 
 to which the original settlers are entitled, on the 
 sole condition of obeying its laws. 
 
 To enter further into a discussion " of the difficul- 
 ties which are supposed to beset the Congo Ques- 
 tion, would be to travel into details, the full discus- 
 sion of which would require a special treatise. The 
 object of the author has been simply to elucidate a 
 Question of Public Law respecting which there 
 seems to be some confusion of thought amongst 
 publicists, who have been embarrassed by the 
 popular use of the term " Sovereignty " in works on 
 International Law, where the term "full domi- 
 nion" would have been more appropriate. The 
 Roman jurists did not draw the distinction between 
 the " dominium supremum " and the " dominium 
 directum," which was adopted by the Feudalist 
 School, who used the former term to denote " the 
 Eight of Empire," otherwise the Right retained by 
 the Supreme Prince, who had devolved the " domi- 
 nium directum " on the vassals of his Empire, when 
 he granted to them portions of his territory. Hence 
 the word "dominium," which the Roman jurists 
 used to signify "ownership," has come down to our 
 time with an uncertain meaning, imparted to it by 
 mediaeval usage, and since feudal tenures have 
 been abolished, the " dominium directum " has been 
 
TO THE SECOND EDITION. XV 
 
 merged as it were amongst the rights of property, 
 whilst the " dominium eminens " of the Supreme 
 Prince has been designated " Sovereignty," which 
 has insensibly come to signify a personal relation 
 between a Prince and his subjects, and not a juri- 
 dical incident of territorial possession. The author 
 has himself employed the term " dominion " as sig- 
 nifying something distinct from that of " empire " 
 (p. 230) in accordance with the terminology of 
 Grotius (lib. 11, ch. 3, § 4, 2). International Law 
 is obliged to be content with the lot of a younger 
 brother, and is perplexed sometimes by the diver- 
 gence between Roman Law and Feudal Law in the 
 employment of words, to which Roman Law by right 
 of primogeniture has affixed a scientific meaning, 
 against which Feudal Law has not been disposed to 
 rebel overtly, but with which it has tampered, and 
 has transmitted them to us in a debased condition, 
 which it is not within the power of every student 
 to detect. The term " Sovereignty," however, ought 
 not to cause any embarrassment to the student of 
 the Congo Question. The Republic of Venice, at the 
 time when it acquired rights of Empire over the 
 Morea, and over most of the islands of the iEgean 
 and the Levantine Seas, acknowledged no personal 
 Sovereign. The Republic of France, which is ac- 
 quiring rights of Empire in the present day over 
 extensive territories in Western Africa, acknowledges 
 no personal Sovereign. It is the autonomy of a 
 State which is the criterion of its independence, not 
 the circumstance of its being ruled by a Sovereign 
 Prince : and it is a lingering tradition of a past age, 
 
XVI PREFACE TO THE SECOND EDITION. 
 
 which suggests that none but Sovereign Princes or 
 associations chartered by them can found settle- 
 ments out of Europe, which will be entitled to claim 
 international recognition, when they are sufficiently 
 matured to maintain the character and to discharge 
 the duties of independent states. That the rights 
 of dominion in the sense of the " dominium emi- 
 nens," as distinct from the rights of property, are 
 capable of being acquired by private associations of 
 a philanthropic character in Africa is, we think, 
 established by the two instances of Liberia and 
 Maryland, which we have cited, and the former of 
 which has been recognised as a Member of the 
 Family of Nations, not indeed by an European 
 Congress, but after the example of the United 
 States of America itself by a Catena, so to say, of 
 separate treaties with the leading states of the 
 civilised world. 
 
 TRAVERS TWISS. 
 
 Temple, London, 
 April 1 6, 1884. 
 
INTRODUCTION 
 
 TO THE SECOND EDITION. 
 
 It was an apt remark on the part of his Excel- 
 lency Kuo-Taj-in, the first Envoy-Extraordinary and 
 Minister-Plenipotentiary accredited from China to 
 the Court of St. James, that he found the European 
 Law of Nations to be " a very young Law ;" but he 
 had also observed that since the age of Grotius 
 wars had been less frequent in Europe, and less 
 sanguinary. No higher compliment could well be 
 paid to the writings of the great Dutch Jurist, than 
 to attribute to them as a consequence what the dis- 
 cernment of his Excellency the Chinese Minister had 
 noted as a remarkable coincidence, without perhaps 
 being aware that the Treatise of Grotius on the 
 Eight of War and of Peace contributed in a marked 
 degree to pave the way for the conclusion of the 
 Peace of Westphalia. That event may be said to 
 have laid the foundation of a new European State- 
 System, by grouping for the first time together the 
 States of Central Europe after the fashion of a 
 family, the members of which were acknowledged to 
 be independent, and, although of unequal power, 
 were recognised as possessing an equality of Eight. 
 The realisation of such a State-System would have 
 
 PART I, b 
 
XVIU INTRODUCTION 
 
 been impracticable if Grotius had not previously 
 familiarised the minds of Statesmen with the con- 
 ception of territorial sovereignty and the rights of 
 independence as incidental to such sovereignty, and 
 further with the doctrine of the equality of States 
 considered as independent political communities. 
 These two principles were at the basis of the new 
 Germanic Empire as constituted by the Peace of 
 Westphalia, whilst the Treaties of Munster and of 
 Osnaburg supplied the groundwork of an European 
 Concert to maintain those principles. 
 
 There is a saying that right is the outcome of 
 war, " la guerre enfante le droit." Perhaps it would 
 be a less questionable paradox to say that wars give 
 occasion for declarations of international right, pre- 
 cisely as civil tumults give occasion for the enact- 
 ment of municipal laws. In accordance with such 
 a maxim the Thirty Years' War may be said to have 
 afforded to Grotius an opportunity, under the modest 
 pretext of discussing the rights of war and of peace, 
 for teaching mankind that there was a law distinct 
 from the Law of Nature, which had been tacitly 
 acted upon and generally received by all or by most 
 nations, and which was for the advantage, not of any 
 one nation in particular, but of all in general. To 
 this law Grotius gave, for the first time, the name 
 of " the Law of Nations," by way of distinction from 
 " the Law of Nature," not as intending to deny the 
 application of the great principles of natural law to 
 the relations between Commonwealths, but wishing 
 to reduce into a system the rules of intercourse, 
 which were practised between Nations, instead of 
 leaving the entire fabric to rest on general princi- 
 ples, the application of which might be maintained 
 
TO THE SECOND EDITION. xix 
 
 or denied by each Nation in its transactions with its 
 neighbours, according as it suited its convenience, 
 or as the occasion might seem to warrant. 
 
 " I have employed," he says, " by way of evidence 
 of the existence of this, law, the testimonies of 
 philosophers, historians and poets, and, in the last 
 place, of orators, not that implicit credit is to be- 
 given to them, for it is usual for them to serve their 
 party, or their subject, or their cause, but because 
 when many persons at different times and in dif- 
 ferent places affirm the same thing for certain, that 
 circumstance ought to be ascribed to some general 
 cause, which, in the questions treated by us, cannot 
 be any other than a correct inference from natural 
 principles, or an universal consent. The former of 
 these indicates the Law of Nature, the latter the 
 Law of Nations, the difference between which must 
 not be judged of from the language of their testi- 
 monies, for writers everywhere confound the terms 
 ' Law of Nature ' and ' Law of Nations,' but from 
 the quality of the subject-matter, for whatever can- 
 not be deduced by clear reasoning from certain 
 principles, and yet appears to be everywhere ob- 
 served, must have had its origin in the free consent 
 of all." (Prolegomena, §41.) 
 
 The treatise " De Jure Belli et Pacis " experienced 
 much opposition during the lifetime of its author, 
 and there have not been wanting, in England as well 
 as on the continent of Europe, critics who have ob- 
 jected to the method of Grotius as well as to his 
 doctrine, maintaining that the maxims which he in- 
 culcated as founded on the equahty of nations went 
 to destroy the three cardinal principles of the Civil 
 Law, often quoted as "the Ulpianic precepts," 
 
SX INTRODUCTION 
 
 to wit, " Honeste vivere, Alterum non laedere, Suum 
 cuique tribuere;" further, that the doctrine of a 
 Law of Nations, resting on the common agreement 
 of mankind, was an empty fiction, to which nothing 
 in fact really corresponds. But it was never in- 
 tended by Grotius to set up a rule like that which 
 theologians have termed the Golden Rule of Vin- 
 centius Lirinensis, " Quod semper at ubique at ab 
 omnibus," The words of Grotius are, — " There are 
 two ways of investigating the Law of Nations. We 
 ascertain this Law, either by arguing from the 
 nature and circumstances of mankind, or by observ- 
 ing what is generally approved by all Nations, or 
 at least by all civilized Nations. The former is the 
 mora certain of the two, but the latter will lead us, 
 if not with certainty, yet with a high degree of 
 probability, to the knowledge of this Law ; for such 
 an universal approbation must arise from soma uni- 
 versal principle, and this principle can be nothing 
 else than the common sense or reason of mankind." 
 (L. L ch. i. § 3.) 
 
 With regard to the method of Grotius, which is 
 for the most part inductive, and perhaps somewhat 
 disorderly, the nature of the subject demanded at 
 his hands that he should frequently cite examples 
 from the history of mankind, to illustrate and sup- 
 port his application of general principles of law and 
 politics, whilst an entire separation of the principles 
 of natural law from those of ethical science would 
 not have been very feasible, perhaps not altogether 
 desirable for his purpose. The best answer, how- 
 ever, to those who condemn his work as having no 
 definite stamp or character, is found in the fact that 
 it was received as an authority by learned Professors 
 
TO THE SECOND EDITION. xxi 
 
 in the Protestant Universities of the Continent within 
 thirty or forty years after its first publication, whilst 
 the universal assent of the civilized world to its 
 teaching, with the exception always of Kome, the 
 buttress of the system which the Thirty Years' War 
 had shattered, affords a solid proof of the reality of 
 the truths which Grotius proclaimed, and of his 
 method of expounding those truths being well suited 
 to the age in which he lived. 
 
 The Treatise of Grotius was first published at 
 Paris in 1625. Its full title was " Hugonis Grotii 
 de Jure Belli et Pacis, libri tres, in quibus Jus 
 Natures et Gentium, item Juris Publici prsecipua 
 explicantur." A quarter of a century had hardly 
 elapsed before, in the same country which had pro^ 
 duced Selden's " Mare Clausum," in objection to the 
 " Mare Liberum " of Grotius, a treatise appeared in 
 support of the more important work of the great 
 Dutch Jurist, entitled " Juris et Judicii Fetialis, sive 
 Juris inter Gentes et Qusestionum de eodem expli- 
 catio." Its author was Dr. Eichard Zouch, who 
 had been appointed Eegius Professor of Civil Law in 
 the University of Oxford by King James I, and Judge 
 of the High Court of Admiralty by King Charles I. 
 Although he did not approve the Solemn League and 
 Covenant, Dr. Zouch did not object to continue to 
 hold several high appointments under the Common- 
 wealth. He was eminently distinguished for his 
 knowledge of the Roman Civil Law as well as of 
 International Law, in both of which branches of law 
 his writings were in high estimation, and recom- 
 mended him to the Protector Cromwell as a very fit 
 person to sit amongst the Delegates appointed to 
 try Don Pantaleon Sa, who having, with the aid of 
 
XXll INTRODUCTION 
 
 his servant, deliberately killed a British subject, one 
 Greenaway of Lincoln's Inn, on the new Exchange 
 in London, had taken refuge in the hotel of his 
 brother, the Portuguese Ambassador at the Court 
 of St. James K The language of Dr. Zouch in di- 
 viding the Law which regulates the relations of 
 princes or states with one another into natural and 
 positive law, is free from all ambiguity. "When 
 many persons," he says, "affirm the same thing at 
 different times, that fact ought to be referred to 
 some universal cause, which cannot be any other 
 than a right conclusion drawn from the principles 
 of nature, or a general consent, of which the former 
 indicates the Law of Nature, the latter the Law of 
 Nations." Thus far the doctrine of Dr. Zouch is in 
 complete harmony with that of Grotius, but he 
 could not overlook the fact that there was growing 
 
 ' A dispute having arisen be- Mark Noble, vol. ii, p. 52, it is 
 tween the Protector Oliver Crom- said that ' Colonel John Gerard 
 well and the Portuguese Go- was beheaded for having engaged 
 vemment, in consequence of the with others his relatives in a plot 
 brother of the Portuguese Am- to assassinate Oliver Cromwell, 
 bassador having been tried and It is singular the brother of the 
 executed for the murder of Green- Portuguese Ambassador died the 
 away, Dr. Zouch published a same day for killing a gentle- 
 treatise entitled, " De Legati man, whom he mistook for this 
 delinquentis Judice competente Colonel.' " Reade, to whom the 
 Dissertatio," which was printed duodecimo volume was presented 
 at Oxford, according to the title- by Dr. Zouch, was probably 
 page, " Oxoniae. Excudebat Hen. Thomas Reade, Fellow of New 
 Hall, Academise Typographus, College, Oxford, and Principal of 
 Impensis The. Robinson, 1657." Magdalen Hall and a Doctor of 
 A copy of this treatise is in the Laws of the College of Advocates. 
 Author's possession, on the fly- Dr. Zouch was also a Fellow of 
 leaf of which, before the title-page, New College and Principal of 
 are inscribed at the top the words, Alban Hall, Oxford, and likewise 
 " Reade ex dono authoris," and a Doctor of the College of Ad- 
 beneath them, in a more modern vocates. His name is sometimes 
 hand,thefollowingmemorandum: spelt with a final " e," which ac- 
 " In ' The Memoirs of the Pro- counts for his being termed in 
 tectoral House of Cromwell,' by Latin " Zouchseus." 
 
TO THE SECOND EDITION. XXlll 
 
 up, outside the circuit of the unwritten Law of 
 Nations, founded on general custom (" inveterata con- 
 suetude ") a body of written law contained in treaties 
 and conventions, which could not well be overlooked 
 in a treatise professing to treat of the " Jus inter 
 Gentes," whether those treaties were intended to 
 supplement the defects in the imwritten or common 
 law, or whether they were intended to modify it 
 and to accommodate it to the progress of civilisation. 
 To this branch of law he assigned the title of posi- 
 tive, as distinguished from natural law. " Deinde," 
 he says, "prgeter mores communes pro jure etiam 
 inter gentes habendum est, in quod gentes singulae 
 cum singulis consentiunt, utpote per pacta, con- 
 ventiones et foedera." In other words, the "Jus 
 inter Gentes " of Dr. Zouch is a more comprehensive 
 body of rules of intercourse between nations than 
 the " Jus Gentium " of Grotius. The Law between 
 Nations, as treated by Dr. Zouch, comprises both 
 the unwritten law, founded on general custom, and 
 a written law, ancillary or exceptional to the un- 
 written law, founded on treaties and conventions. 
 It is not, however, every treaty which marks a stage 
 of development or progress in the Public Law of 
 Europe. Some treaties are merely declaratory of a 
 rule of the unwritten law, which risks to be for- 
 gotten, others are simply exceptions to the general 
 rule, but the majority of treaties indicate, as it were, 
 the set of the current of public opinion as to what 
 all nations would do well to agree to observe. 
 
 Dr. Zouch' s work was published in 1650. With- 
 in a quarter of a century after that event Professor 
 Eachel, of the University of Kiel, a diplomatist of 
 note, who took part, as the Envoy of the Duke of 
 
XXIV INTRODUCTION 
 
 Holstein Gottorp, in the Congress of Nimeguen, 
 published two Dissertations, "De Jure Naturae et 
 Gentium," in which he formally distinguished Con- 
 ventional Law from Customary Law, and assigned 
 to the former division the title of "Jus Pactitium." 
 PufFendorf, who had from the commencement com- 
 bated the distinction which Grotius had so carefully 
 made between the Law of Nature and the Law of 
 Nations, and who held the customs and usages, 
 which nations generally observe, to be perfectly 
 arbitrary unless they are deduced from the Law of 
 Nature, did not hesitate to reject altogether the 
 more comprehensive view of the " Jus inter Gentes," 
 which Dr. Zouch had inaugurated, considering the 
 " Jus Pactitium " to be not properly the subject of 
 Science, but to belong more to the province of 
 History than of Law. Materials, however, were 
 fast accumulating to form a suitable subject for 
 scientific treatment, and in the early part of the 
 eighteenth century there appeared from the Press, 
 in different parts of Europe, various collections of 
 Treaties and Conventions. Leibnitz had given an 
 impulse to the study of treaties by his " Codex Juris 
 Gentium Diplomaticus," published by him in 1695, 
 which he re-edited in a more enlarged form in 1 700, 
 accompanied by a second part, under the title of 
 "Mantissa Codicis Juris Gentium Diplomatic!." 
 About the same time there appeared, at Amsterdam, 
 a collection of Treaties in 4 vols, folio, edited by 
 Jaques Bernard, sometime afterwards Professor in 
 the University of Leyden. This was, however, only 
 the prelude to a far larger collection comprised in 
 the great work of Jean Dumont, entitled " Corps 
 Universel Diplomatique du Droit des Gens," in 
 
TO THE SECOND EDITION. XXV 
 
 8 vols, folio, published at Amsterdam in 1726-31, 
 a supplement to which, in 2 vols., was added by 
 J. Rousset in 1739. John Jacob Schmauss had also 
 published, in 1730, a collection, in two volumes, of 
 treaties, principally of the two preceding centuries, 
 under the title of " Corpus Juris Gentium Academi- 
 cum," so that the materials for the study of positive 
 as distinguished from natural law, was most ample 
 in 1749, when Christian von Wolff once more vindi- 
 cated, against all opponents, amongst whom Chris- 
 tian Thomasius, of the University of Halle, was the 
 most formidable, the superiority of the School of 
 Grotius, and moulded the system of European Public 
 Law into the more complete forms in which it now 
 'exists ; namely, under the threefold division of 
 Natural Law, Customary Law, and Conventional 
 Law. 
 
 Christian von Wolff had reached his seventieth 
 year when he composed a work, the title of which 
 fully explained its subject-matter, "Jus Gentium 
 Methodo Scientifica pertractatum, in quo Jus Gen- 
 tium Naturale ab eo, quod Voluntarii Pactitii et 
 Consuetudinarii est, accurate distinguitur." Von 
 Wolff introduced into his system of Public Law a 
 distinction between the " Jus Naturale " and the 
 "Jus Voluntarium," with a view to greater pre- 
 cision, in pursuance of a theory of international 
 society, according to which the family of Nations, 
 constituted as a " Civitas Maxima," has a right to 
 impose upon its members certain laws in their com- 
 mon interest, and to compel them to observe them. 
 It has been objected to Von Wolff, that in resting 
 the obligation of his "Jus Gentium Voluntarium" 
 on an imaginary Family of Nations, he has been 
 
XXVI INTRODUCTION 
 
 misled by his excessive desire to demonstrate every- 
 thing, inasmuch as history does not supply evidence 
 of any such universal association ; nay, it may be 
 argued that the theory is irreconcileable with the 
 rights of independence, one of the attributes of 
 Sovereign States. But the error of Von Wolff was 
 more an error of form than of substance. He per- 
 ceived that the European Nations, although juridi- 
 cally independent as communities, were morally de- 
 pendent upon one another in respect of the satisfaction 
 of their mutual wants by friendly intercourse, and 
 that such intercourse could only be permanently 
 maintained under conditions of reciprocity, which 
 gave rise to the formation, as it were, of an " Inner 
 Circle" of the more civilised nations, regulating their 
 mutual intercourse by rules not applicable to the 
 " Outer Circle " of Nations in a less cultivated State. 
 The members of this inner circle of international 
 life constituted the " Civitas Maxima " of Von Wolff, 
 shadowed out somewhat indistinctly by him, and 
 perhaps constructed on too fictitiovis a basis to stand 
 the test of strict analysis. 
 
 The great feature, however, of Von Wolff's system, 
 which made the appearance of his work an epoch in 
 the science of the Law of Nations only second to 
 that of Grotius, was that he taught that the Law 
 of Nations could not be apphed to States or Political 
 Communities simply as aggregate bodies, of indi- 
 vidual men. Hobbes and Puffendorf were of one 
 mind in maintaining that the Law of Nature, as ap- 
 plied to the relations of individual men as moral 
 agents, underwent no modification in its application 
 to States or Nations, and in contending that the 
 maxims of the Law of Nature and of the Law of 
 
TO THE SECOND EDITION. XXvii 
 
 Nations were identical. On the other hand, Bar- 
 beyrac, who translated the work of Grotius into 
 French, and enriched it with critical annotations of 
 great value, has observed in one of his notes that 
 although the principles of the Law of Nature are 
 identical with those of the Law of Nations, there is 
 a difference in the mode in which those principles 
 are applicable to States, as distinguished from indi- 
 viduals. Von Wolff developed this doctrine more 
 fully. Having admitted that Nations are in one 
 sense aggregate bodies of individual men, upon 
 whom certain duties are obligatory, and to whom 
 certain rights attach in respect of the personality 
 of the individuals, he maintained that, as Nations are 
 composite bodies and have in their collective capacity 
 a moral being of their own, and are in such cha- 
 racter the subjects of obligations and rights, which 
 result in virtue of the Law of Nature from the act 
 of association, under which they are constituted 
 political bodies, it follows that the nature of their 
 moral being differs essentially from the nature of the 
 physical individuals, of whom they are composed. 
 When, therefore, we seek to apply to Nations the 
 duties which the Law of Nature prescribes to indi- 
 vidual men, and the rights which it confers on the 
 latter in order to enable them to fulfil their duties, 
 since such duties and such rights cannot be other- 
 wise than consistent with the nature of their sub- 
 jects, they must in their application necessarily 
 undergo a change suitable to the new subjects to 
 which they are applied. Thus it results that the 
 Law of Nations cannot be in every particular the 
 same as the Law of Nature regulating the actions 
 of individual men. 
 
XX /m INTRODUCTION 
 
 The authority due to the original work of Von 
 Wolff has, by a caprice of fortune, been transferred 
 to the lighter and more agreeable work of M. de 
 Vattel, who has acknowledged, in his Preface, his 
 obligation to the great philosopher of the University 
 of Halle. M. de Vattel, however, was not a blind 
 follower of Von Wolff. He combated his theory of 
 a " Civitas Maxima " or Great Kepublic of Nations, 
 whose laws, according to Von Wolff, dictated by 
 sound reason and founded on necessity, should regu- 
 late the alterations to be made in the natural 
 and necessary Law of Nations, as the civil laws of 
 a particular State determine what modifications shall 
 take place in the natural law of individuals. In 
 opposition to that theory Vattel undertook to show, 
 that all the modifications and restrictions which the 
 rigour of the natural law must be made to undergo 
 in the affairs of Nations, and from which the volun- 
 tary Law of Nations is formed, are deducible from 
 the natural liberty of nations, from the attention 
 due to their common safety, from the nature of their 
 mutual correspondence, their reciprocal duties and 
 the distinctions of their various rights. " Since 
 Nations," he goes on to say, "in their transactions 
 with one another are equally bound to admit those 
 exceptions to and modifications of the rigours of the 
 necessary law, whether they are deduced from the 
 idea of a Great Republic, of which all nations are 
 supposed to be members, or derived from the sources 
 above enumerated, there can be no reason why the 
 system, which thence results, should not be called the 
 voluntary Law of Nations, as distinguished from the 
 necessary, internal and consciential Law. Names 
 are of very little consequence, but it is of con- 
 
TO THE SECOND EDITION. XXIX 
 
 siderable importance to distinguish these two kinds 
 of law, in order that we may never confound what 
 is just and good in itself with what is only tolerated 
 through necessity." 
 
 Von Wolff and De Vattel may be said to have 
 exhausted the subject of the natural Law of Nations 
 by patiently observing the actual relations of Na- 
 tions, and by carefully analysing those relations and 
 inferring from them general rules and principles. 
 What chiefly remained to be done was to combine 
 those principles with the results of established usage 
 and of treaty engagements. 
 
 Leibnitz, as already mentioned, had given an 
 impulse to the study of treaties in the early part of 
 the eighteenth century. The Conventional branch 
 of the Public Law of Europe may in fact be said 
 to have grown up almost entirely since the Thirty 
 Years' War, so that in the time of Grotius it was 
 not of sufficient importance to arrest his attention or 
 to require a special treatment at his hands. Within 
 a century however after the Thirty Years' War, 
 contracts of alliance and treaties of peace had come 
 to be recorded so frequently in history, that there 
 was a mass of positive Law defining the special re- 
 lations of most of the European States towards one 
 another, and exceptional to the general Law, so that 
 it became necessary to reduce it into a systematic 
 form in order to master the study of the entire 
 system of European Public Law. During the 
 eighteenth century the Cabinets of Europe were 
 averse to any collective publication of their treatiep, 
 and when an eminent German jurist, John Jacob 
 Moser, projected a great work in 1780, which was 
 intended to embrace the whole circle of European 
 
XXX INTRODUCTION 
 
 State Affairs since the death of the Emperor 
 Charles VI. (1740), the Cabinets of the Sovereigns 
 of Europe were closed against his proposals, and he 
 accordingly abandoned his design. His scheme, how- 
 ever, was revived before the conclusion of the 
 eighteenth century by George Frederic von Martens, 
 Professor of Law in the University of Gottingen, 
 who distinguished not merely the Law of Nature 
 from the Law of Nations, but the general Law of 
 Nations from the practical Law of Nations as re- 
 ceived in Europe, showing how the European system 
 of Public Law rests not merely on general abstract 
 principles, but also on the usages and conventions of 
 the European States ("Prim^ linese Juris Gentium 
 Europeearum practici," Gottingen, 1785). It is not 
 too much to say that in accordance with the maxim 
 already quoted, "La guerre enfante le Droit," the 
 twenty years of almost uninterrupted warfare, during 
 which the First Napoleon endeavoured to erect an 
 Empire, only second to that of Charlemagne, on 
 the foundations of the French Republic of 1793, 
 evoked a spirit of combined action amongst the 
 Nations of Europe, cemented by a carefully con- 
 sidered system of General Treaties, the outcome of 
 which has been an European Concert of Public Law. 
 It has resulted accordingly that each State, besides 
 its special interests, has also interests in common 
 with the general body of States, and the natural in- 
 dependence of the individual States has been, in 
 certain matters, subordinated to the general welfare 
 of the European community. The methods whereby 
 this result has been brought about, which has in- 
 volved from time to time departures from the 
 established usage, has been by consultations amongst 
 
TO THE SECOND EDITION, xxxi 
 
 the leading European Powers assembled in Congress, 
 and recording in the Protocols of their Conferences 
 the principles upon which their conclusions have 
 been based, to which it has been usual to invite the 
 adherence of the Powers not represented in the 
 Congress. Where those conclusions have been of 
 a remedial character as regards any defect of the 
 Customary Law, a general adherence has for the 
 most part been given to them, and the Customary 
 Law of Europe has thus been accommodated to the 
 growing wants of an advancing civilisation. For 
 instance, by an annexe to the Principal Act of the 
 Congress of Vienna of 1815, it was agreed that the 
 navigation of great rivers separating or traversing 
 more than one State, should be open to every one for 
 purposes of commerce from the point where such 
 rivers become navigable, to the point where they 
 discharge their waters into the sea, subject always 
 to moderate navigation dues ; and to this convention 
 aU the Christian States of Europe have acceded, so 
 that the Common Law of the Christian States of 
 Europe, as to each nation's exclusive right of empire 
 over its territorial waters, has been modified, and is 
 subordinated to a conventional rule in respect of a 
 certain class of rivers. The term " Christian States " 
 has been used here for the sake of convenience, as 
 distinguishing the States of Europe which took 
 part in or acceded to the Principal Act of the Con- 
 gress of Vienna, from the Ottoman Porte, which was 
 not a party to that Act. On a later occasion, how- 
 ever, namely under the Treaty of Paris of 1856, the 
 Ottoman Porte has been formally admitted to all 
 the advantages of the Public Law of Europe and 
 of the European Concert (" aux avantages du Droit 
 
XXXH INTRODUCTION 
 
 Public et du Concert Europeens"), and under the 
 same treaty, to which the Porte itself was a signa- 
 tory party, it was agreed that the same principles 
 of Law, which had been applied by the Powers 
 assembled at Vienna in 1815 to rivers traversing 
 or separating the territories of more than one State, 
 should be applied to the river Danube, and it was 
 declared that this arrangement with the Ottoman 
 Porte forms part of the Public Law of Europe and 
 is under its guaranty. Eespecting the operation 
 of such treaties, where their provisions are of a 
 remedial character and have a beneficial end in view, 
 the question whether or not their provisions are to 
 be extended to other nations not parties to the 
 treaties, may involve very nice considerations of 
 international jurisprudence, as the answers must de- 
 pend on certain considerations of Eight (" Jus ") out- 
 side the treaties. 
 
 No difficulty, however, can arise in interpreting 
 the Act of the Congress of Vienna, as it is in terms 
 provided "that the free navigation of the class of 
 rivers specified in the annexe shall not be inter- 
 dicted to any one, so that the navigation of such 
 rivers may be properly held to be open to the sub- 
 jects of all nations. But there may be cases of 
 greater complication. For instance, under the De- 
 claration of Maritime Law annexed to the same 
 Treaty of Paris in 1856, certain relaxations of the 
 Customary Law of Nations in time of war have been 
 agreed upon for the benefit of neutrals. There is, 
 on the other hand, a special proviso that the Declara- 
 tion shall not be obligatory except between the 
 Powers who have signed it or shaU accede to it. 
 But the second article of the Declaration provides. 
 
TO THE SECOND EDITION. XXXm 
 
 in derogation of the Common Law of the Sea, as 
 recorded in the Consolat del Mar, that the neutral 
 flag in time of war shall cover enemy's cargo with 
 the exception of contraband of war ; and the third 
 article provides that neutral goods, with the excep- 
 tion of contraband of war, are not liable to capture 
 under an enemy's flag. It has been suggested by 
 an American publicist of note, that if a nation that 
 is a party to the Declaration should be at war with 
 a nation which is not a party to it, the former nation 
 would not be bound to abstain from seizing enemy's 
 goods on board of a vessel under the flag of a neutral 
 nation which is a party to the Declaration, and 
 "thus in fact aU parties to the Declaration, when 
 they are neutral, may lose the benefit of it in such 
 a war." But both France and Great Britain, the 
 two Powers with whom the Declaration originated, 
 have in practice put a liberal interpretation on the 
 second and third articles, which is calculated to re- 
 lieve all neutrals, which have adhered to the Declara- 
 tion of Paris, from any fear of losing the benefit of 
 their adherence to it under the circumstances of such 
 a war. For instance, in anticipation of a joint war 
 against China, which latter Power has not adhered 
 to the Declaration of Paris, France and Great 
 Britain, as allies in the event of such a war, issued, 
 in the month of March, i860, each of them an 
 Ordinance or Decree as to the observance of the 
 Rules of Maritime Law, under the Declaration of 
 Paris of 1856, towards the vessels and goods of the 
 enemy and of neutrals, and they announced that as 
 regards the ships of any neutral Power party to the 
 Declaration, the flag of such Power should cover the 
 enemy's goods with the exception of contraband of 
 
 PART I. c 
 
XXXIV INTRODUCTION 
 
 war, and further, that the goods of neutrals, with 
 the exception of contraband of war, should not be 
 liable to capture under the enemy's flag, by reason 
 only of the said goods being under the enemy's 
 flag. A like interpretation of the Declaration of 
 Paris has been adopted by the Eepublics of Peru 
 and Chili, in 1865, in a war against Spain, which 
 latter Power has not adhered to the Declaration of 
 Paris, so that, unless these precedents should be 
 disregarded, it may be presumed that the Declara- 
 tion of Paris is to be interpreted in the most liberal 
 manner as regards neutrals in time of war, so as to 
 accord with the preamble which recites that the 
 object of the Powers which were parties to the 
 Declaration was to render war as little onerous as 
 possible to neutrals. The same liberal interpreta- 
 tion of the second and third articles of the Declara- 
 tion was adopted by the French Government in the 
 war with Prussia of 1870-71. By the ninth article 
 of the French instructions of 25 July, 1870, the com- 
 manders of the French cruisers were directed not to 
 examine cargo on board of neutral vessels for the 
 purpose of ascertaining its ownership, nor to seize 
 neutral merchandise on board of enemy vessels, with 
 the exception of contraband of war, and these prin- 
 ciples were declared to be applicable to Spain and 
 to the United States, notwithstanding those Powers 
 had not adhered to the Declaration of Paris. 
 
 On the other hand, the same Declaration of Paris 
 supplies an instance in which, in accordance with 
 another acknowledged principle of general juris- 
 prudence, where a clause of a written instrument is 
 of a prohibitive or restrictive character, it must be 
 continued strictly. Thus, the first article of the 
 
TO THE SECOND EDITION. XXXV 
 
 Declaration is in terms "Privateering (La Course) 
 is abolished;" in other words, the article prohibits, to 
 aU the Powers which are parties to the Declaration, 
 the granting of Letters of Marque. Accordingly, 
 when the King of Prussia issued a decree on 
 24 July, 1870, constituting a Volunteer Naval Force 
 to be under the same discipline and under the same 
 articles of war as the German Federal Navy, and to 
 sail under the Federal flag, Great Britain held that 
 the institution of such a volunteer navy did not 
 involve any breach of the first article of the Declara- 
 tion of Paris, and that the French Government, 
 which had by a " note verbale " invited the attention 
 of Great Britain to the subject, had no sufficient 
 cause to call upon the British Government to object 
 to the decree of the Prussian Government, as in- 
 fringing the Declaration \ With regard to the 
 Declaration itself, whilst it imposes no obligation on 
 the States which have declined to adhere formally 
 to it, wishing to preserve their full liberty of action 
 under the necessities which war may impose upon 
 them, the probability is that they will in time con- 
 form themselves to a restriction of the practice of 
 warfare on the High Seas, which, although it may 
 be authorised by the customary Law of Nations, is 
 now discarded by the public opinion of so many of 
 the foremost States of the civilised world. 
 
 John Louis Kliiber, Professor in the University of 
 Heidelberg, and subsequently Councillor of State to 
 the Grand Duke of Baden, was present, under the 
 authority of his Government, at Vienna during the 
 sittings of the Congress in 181 5, and had oppor- 
 
 ' British and Foreign State Manuel de Droit Maritime In- 
 Tapers, vol. Ixi, p. ^92. Perels, temational, p. 194. 
 
 c 3 
 
XXXVl INTRODUCTION 
 
 tunities of becoming acquainted with the important 
 diplomatic questions discussed in the Congress, and 
 the solution given to them. The result was a pub- 
 lication on his part of a collection of the Acts of the 
 Congress of Vienna, in nine volumes, which is the 
 text-book on the subject. It had, however, been 
 preceded by a work from his pen entitled " Le Droit 
 des Gens Modeme de TEurope," which appeared in 
 Paris in 1818. The object of this work was to give 
 an impulse to the study of the Positive Law of 
 Nations, as a help to his contemporaries, who might 
 be intending to devote themselves to the public ser- 
 vice of their respective States, and more especially 
 to the study of the Diplomatic Science. It is usual 
 to speak of Diplomacy as an art, and in this sense 
 of the term to describe a skilful negotiator of a treaty 
 as an able diplomatist. But just as there is a 
 Science of Logic as well as an Art of Logic, so there 
 is a Science of Diplomacy as well as an Art of 
 Diplomacy. When Leibnitz pubhshed his " Codex 
 Juris Publici Diplomaticus," he invited attention to 
 the treaties and other international acts of the 
 European Powers as a branch of the Public Law of 
 Europe, with which it was necessary for Statesmen 
 to become familiar, before they undertook to direct 
 the foreign relations of their respective States. In 
 order, therefore, that a statesman should have any 
 just claim to the title of a Diplomatist, in the 
 Leibnitzian sense of the term, he must have acquired 
 a competent knowledge of the treaties and other in- 
 ternational acts of the European Powers, and of the 
 motives that have led to them ; and before he can 
 expect to be regarded as a sagacious Diplomatist he 
 must have become sufficiently familiar with the prin- 
 
TO THE SECOND EDITION. XXXVll 
 
 eiples of international jurisprudence, as to be able to 
 distinguish between the provisions of treaties and other 
 international acts, the application of which ought to 
 be restricted to the subjects of the signatory Powers, 
 and acts, of which the benefit is to be extended to 
 the subjects of other Powers. It is in this sense 
 of the high vocation of the Diplomatist that the 
 founders of the Chichele Professorship at Oxford 
 have entitled it the Professorship of International 
 Law and Diplomacy. For instance, under an annexe 
 to the First Protocol of the Treaty of London of 
 1 871, the European Powers, who took part in the 
 Congress of Paris of 1856, have joined in a Decla- 
 ration, namely, that it is an essential principle of the 
 Law of Nations (Droit des Gens), that no Power can 
 release itself from the obligations of a treaty, except 
 in pursuance of the assent of the contracting parties 
 by means of an amicable understanding. It may be 
 asserted with some reason that this protocol is simply 
 declaratory of the pre-existing Law of Nations, but 
 if that be granted, a question may be raised in what 
 sense are we to interpret the phrase " Law of Na- 
 tions"? Are we to extend its meaning as widely as 
 Professor Bluntschli, who has laid it down that " In- 
 ternational Law is not restricted to European nations. 
 Its domain extends over the whole surface of the 
 globe" ? or shall we adopt Professor Frederic de 
 Martens' view, that reciprocity is a cardinal principle 
 of contemporary international Law, and that the appli- 
 cation of the Law of Nations, as a system distinguished 
 from the Law of Nature, is confined to such civilised 
 States as recognise in their international relations 
 the obligations of reciprocity. It should be borne 
 in mind.that amongst the parties to this Declaration 
 
XXXVIU INTEODUCTION 
 
 were the Padichah of the Ottomans and the Emperor 
 of all the Eussias, both of which Powers are Asiatic 
 as well as European Powers, and that as Asiatic 
 Powers they have territories abutting on the terri- 
 tory of semi-civilised States, to say nothing of the 
 fact that the Queen of Great Britain and Ireland, 
 who was also a party to the Declaration, has also, 
 as Empress of India, territories conterminous with 
 those of semi - civilised States. Professor Frederic 
 de Martens, in his valuable work recently published 
 under the title of "Traite de Droit InternationaP," 
 contends that the relations between civilised and 
 semi-civilised States are prescribed by Natural Law, 
 that is, by a definite body of principles derived from 
 the moral nature and the reason of man, whilst con- 
 temporary International Law is the result of civilised 
 life, and does not extend beyond the nations which 
 recognise the fundamental principles of European 
 civilisation. According then to this restricted view 
 of International Law it would seem that the phrase 
 " Law of Nations," as it occurs in the protocol of the 
 Treaty of London of 1871, may properly be taken to 
 signify the Consuetudinary Law of Europe, of which 
 the Signatory Powers recognise the binding force, as 
 regards their treaty-engagements with other Powers. 
 This limited interpretation of the Declaration leaves 
 untouched the maxim of Natural Law, that plighted 
 faith is to be maintained even towards semi-civilised 
 peoples, who are outside the pale of contemporary 
 international law; and Professor Frederic de Mar- 
 tens participates in this view of Natural Law, as 
 prescribing the obligation of good faith towards semi- 
 
 * Traduit du Eusse par Alfred Leo. Paris, 1883. 
 
TO THE SECOITO EDITION. XXXIX 
 
 civilised peoples. The great value of the Declara- 
 tion of 1 871 is that it formally repudiates the doc- 
 trine of Spinoza, that "States are not bound to 
 observe their treaties longer than whilst the interest 
 or danger, which first gave rise to the treaties, con- 
 tinues to exist." 
 
 If it be assumed, then, that "the Law of Nations" 
 referred to in the Declaration of London of 187 1 is 
 the Consuetudinary Law of the European Nations, 
 which all the civilised States of the Western Hemi- 
 sphere have recognised as the Law of Nations, it is 
 not too much to say that this Law of Nations, as 
 distinguished from the Law of Nature, is a rule of 
 international conduct sanctioned by a practice, which 
 has been found to conduce to the general welfare 
 of the community of civilised States, which reason 
 has moulded in conformity with the progress of 
 civilisation, and the observance of which is obliga- 
 tory upon every Nation that claims to participate 
 in the common advantages of that civilisation. It 
 is the special province of the international jurist to 
 make himself acquainted voth this Law of Nations, 
 and to appreciate the principles which underlie it, 
 so that if cases arise from time to time which are 
 without any direct precedent to govern them, he 
 may be enabled to suggest to the Statesman a prin- 
 ciple of Public Eight, which wiU meet the particular 
 difficulty without impairing the general harmony 
 of the edifice of Public Law. In such matters a 
 clear appreciation of the terminus a quo is often 
 indispensable to assure the attainment of the ter- 
 minus ad quem. It is not, however, the vocation of 
 the international jurist to determine by what con- 
 siderations of general interest the Statesman should 
 
xl INTRODUCTION 
 
 be governed in choosing his line of political action ; 
 his functions are limited to advising the Statesman, 
 whether this or that course of political action will 
 be in accordance with International Eight, or will 
 entail a violation of it. 
 
 With regard to the title of the present work, it 
 has been adopted from a desire to adhere to an 
 ancient terminology, and in much the same spirit in 
 which Vattel observes, that names are of very little 
 consequence, so long as the kind of law which they 
 denote is kept distinct in the mind. The phrase 
 " international law," which is due to the philosophical 
 genius of Bentham, if it had been adopted by the 
 author, might have led the reader to expect to find 
 many subjects discussed in the present work, re- 
 specting which complete silence has designedly been 
 maintained. On the other hand, the author is un- 
 able to assent to the objection raised against the 
 term " Law," as applied to the Rules which govern 
 the intercourse of Nations, on the ground that there 
 is no common Superior to enforce their observance. 
 An eminent Russian jurist, who represents a State 
 respecting which there is a prevalent superstition 
 in Western Europe, that no such thing as voluntary 
 law is known there, has combated with abundant 
 reason, the argument that because there is no con- 
 straining power to enforce the observance of Inter- 
 national Eight, it has no obligatory force so as to 
 be entitled to the designation of " Law." Consent, 
 as Professor Frederic de Martens shows, is the basis 
 of aU order and of all right, and precisely as the 
 Law of a State is founded on the consent of its 
 members, expressed through its legislature, which 
 embodies the juridicial convictions of the political 
 
TO THE SECOND EDITION. xli 
 
 community, so the Law of Nations rests in the 
 consent of Nations (consensus gentum), testified by 
 their established practice (inveterata consuetudo). 
 On the other hand, an eminent German jurist, M. 
 de Jhering, has published some remarkable treatises^ 
 in support of the thesis, which is considered in Eng- 
 land to have the high recommendation of Mr. John 
 Austin's approval in his well-known work "The 
 Province of Jurisprudence determined," that where 
 there is no Superior Power there is no Law ; but 
 M. de Jhering admits the fact, that the strongest 
 Power does not prolong eternally a struggle with its 
 adversary, and that it is fain sooner or later to con- 
 clude peace, and peace is the basis of all order and 
 of all right, whilst peace presupposes consent. Un- 
 fortunately the poverty of the English language 
 obliges us to use the term " Law" to designate 
 " unwritten Eight " (Jus non serif turn) equally as 
 written Law (Lex) ; but Bracton, in his Commen- 
 taries on the Laws and Customs of England, com- 
 posed more than six centuries ago, feeling himself 
 pressed with a like difficulty, was of opinion that 
 there was nothing unreasonable in his using the 
 term " Lex" to designate the unwritten laws of Eng- 
 land, seeing that they were approved by the consent 
 of the magnates and the common warrant of the 
 body politic. Bracton, it may be justly said, first 
 made public the principles and rules of the un- 
 written law of England, hitherto known only to the 
 King's judges, and his work closes the epoch of 
 Customary Law in England ; whilst Chief Justice 
 Hengham, whose "Summa" occupies historically the 
 
 ^ Der Kampf im Eecht, 1872. Der Zweck im Eecht, Leipzig, 
 1877. 
 
xlii INTRODUCTION" 
 
 next place to that of Bracton, instead of quoting 
 the ancient judgments of righteous men as evidence 
 of customary law, appeals to the recent constitu- 
 tions of the Parliament of King Edward I, as in- 
 stituted law, which had modified the customary law 
 and adapted it to the altered circumstances of the 
 age. The same reign, however, which ushered in 
 a new era of written law in England, did not dis- 
 card the use of the term "Law," as applied to 
 Customs, peeing that it has transmitted to us the 
 Cxistoms of the Sea, as embodied in the judgments of 
 the Maritime Court of Oleron, under the title of " La 
 Leye Oleroun," and we still speak of those Customs 
 as " the Laws of Oleron." 
 
 In conclusion, it may be justly said that the Law 
 of Nations, although it has no law-giver to enact 
 it, nor supreme judge to enforce it, is not the less 
 a reality. The history of modern civilisation de- 
 monstrates its existence, and the public opinion of 
 mankind afiirms its obligation. It has been the 
 object of the author of the present treatise to set 
 forth the usage and custom of Nations as the best 
 evidence of the extent to which abstract principles 
 may be applied in elucidating the Law, which was 
 proclaimed by Grotius two centuries ago, and the 
 development of which has been the occupation of 
 several of the greatest jurists of each successive age. 
 It is a bright feature of modern civilisation that the 
 Governments of Europe allow in their intercourse 
 with one another considerable weight to a rule of 
 Right as controlling the dictates of ambition or of 
 interest, and that their respect for such Eight com- 
 mends itself to the conscience of the Nations which 
 they represent. No human society has ever long 
 
TO THE SECOND EDITION. xliii 
 
 subsisted, or ever can long subsist, witliout being 
 bound together by good laws, much less the Great 
 Society of Nations. It has been the signal merit 
 of the Statesmen of Europe, who have had charge 
 of the international interests of their respective States 
 during the last half century, that they have agreed 
 to modify the customary Law of Nations from time 
 to time so as to adapt it to the enlightened demands 
 of an advancing civilisation. The consequence has 
 been, that however indeterminate in a certain sense 
 are the rules of that Law, it is a Law of the Living 
 and not of the Dead, and whilst there will always 
 be much question about the details of its application, 
 its flexibility as customary law will always preserve 
 it from becoming obsolete. Meanwhile, those who 
 by genius and study are capable of mastering its 
 principles, and. of applying them with discernment 
 to the maintenance of a sound public opinion, where 
 questions of Eight and Wrong are at issue between 
 Independent States, are in substance although not 
 in form the true law-givers of Nations in this respect. 
 They can however claim no supreme authority for 
 themselves, but must rest satisfied with commending 
 their views of international obligation to the reason 
 of Statesmen, and to the conscience of mankind at 
 large. 
 
CONTENTS. 
 
 CHAPTEE L 
 
 NATIONS AS SUBJECTS OF LAW. 
 Sect. 
 
 I. ^ Nations, Independent Political Communities i 
 
 a. International Jurisprudence 3 
 
 3. Element of Roman Law % 
 
 4. Definition of a State adopted by Grotius 4 
 
 5. Puffendorf's Definition of a State 4 
 
 6. Christian de Wolff 5 
 
 7. Vattel's Definition of a State 6 
 
 8. Growth of Natural Society 7 
 
 9. Natural Society of Nations 8 
 
 10, Nationalisation and Denationalisation of States 9 
 
 11. Hobbes' view of Political Society il 
 
 la. Equality of Nations 11 
 
 13. Perfect and Imperfect Rights of Nations 13 
 
 14. Rights incidental to the Right of Self-Preservation 13 
 
 15. Obligations corresponding to Rights 13 
 
 16. The Good OflBces of Nations discretional 14 
 
 17. Right of Coalition 14 
 
 CHAPTEE II. 
 
 INCIDENTS AND MODIFICATIONS OF 
 INTERNATIONAL LIFE, 
 
 18. Continuity of International Life 16 
 
 19. Determination of International Life 18 
 
 %o. International Recognition of Independence 19 
 
xlvi CONTENTS. 
 
 Sect. Page 
 3 £. International Life not determined byPolitical Changes 
 
 within a State. Personal Treaties 30 
 
 23. Real Treaties 3i 
 
 33. Sovereignty distinct from Independence 33 
 
 34. Semi-Sovereign States a Solecism 24 
 
 35. Conventional Independence of States 35 
 
 36. Independent States under Protection 37 
 
 37. The Principality of Monaco 38 
 
 38. The Lordship of Kniphausen 30 
 
 39. The United States of the Ionian Islands 33 
 
 30. Neutrality of a Protected Independent State 36 
 
 31. The Free City of Cracow , 37 
 
 33. Its Internal Constitution a subject of Treaty 39 
 
 33. Cracow and the Ionian Islands 43 
 
 34. The extinct Republic of Poglizza 43 
 
 35. The Republic of Andorre 44 
 
 36. The Republic of San Marino 46 
 
 CHAPTEE III. 
 
 NATIONAL STATE-SYSTEMS OF CHRISTENDOM. 
 
 J,*]. Single or United States 47 
 
 38. Personal Union of Independent States 48 
 
 39. Real Union of Independent States 49 
 
 40. Federal Union of Norway and Sweden 51 
 
 41. Diversity of Federal Unions 55 
 
 43. The United States of America 56 
 
 43. The Constitution of 1787 ^7 
 
 44. The Articles of Confederation of 1778 58 
 
 45. The Argentine Confederation ^o 
 
 46. A Single State decentralised 60 
 
 47. The Constitution of the Argentine State 61 
 
 48. The Argentine Provinces 63 
 
 49. The Swiss Confederation of 1648 63 
 
CONTENTS. xl 
 
 Vll 
 
 Sect. Page 
 
 50. The Helvetic Confederation of 18 15 64 
 
 51. The League of Sarnen of 183a 65 
 
 53. The Svvis8 Confederation of 1848 66 
 
 53. Analogy between the Swiss Confederation and cer- 
 
 tain Federal Unions 69 
 
 54. Origin of the Germanic Confederation 70 
 
 55. Federal Act of 1815 7a 
 
 56. Final Act of i8ao 73 
 
 57. The Ordinary Assembly of the Diet 77 
 
 58. The Plenum or Full Chapter of the Diet 79 
 
 59. Permanent Character of the Germanic Confederation 8a 
 
 60. The German Empire of 1 87 1 83 
 
 CHAPTER IV. 
 
 THE OTTOMAN EMPIRE. 
 
 61. The International Relations of the Mahommedan 
 
 World 88 
 
 6a. Admission of the Porte into the Concert of European 
 Nations. Treaty of Paris, 30 March, 1856. De- 
 claration of Maritime Law 90 
 
 6^, Constitution of the Ottoman Empire — Christian and 
 
 Mahommedan dependencies 9a 
 
 64. The States on the Barbary Coast 95 
 
 6^. Early Treaties with the Sublime Porte. Anomalous 
 condition of the Barbary States. Algiers for- 
 merly a Vassal State of the Ottoman Empire, now 
 a dependency of France. Tripoli, formerly an 
 hereditary Regency, now a Vilayet of the Otto- 
 man Empire under a removable Vali 98 
 
 66. Anomalous position of Tunis — Tunis lately a 
 
 Vilayet of the Ottoman Empire, now under a 
 French Protectorate 99 
 
 67. Egypt formerly a Vilayet, now a Vassal State of 
 
 the Ottoman Empire under an hereditary Khedive 
 
 — Treaty of London, 15 July, 1840 104 
 
xlviii CONTENTS. 
 
 Sect. Page 
 
 68. Principality of Samos, an autononaous dependency 
 
 of the Porte under a Christian Prince paying 
 tribute to the Porte — Diplomatic note of lo Dec. 
 1833 113 
 
 69, Bulgaria, an autonomous and tributary Principality 
 
 under a Christian Prince — Treaty of Berlin, 1878, 114 
 
 70, Eastern Eoumelia, an autonomous Province under 
 
 a Christian Vali nominated by the Porte in con- 
 sultation with the Signatory Powers of the 
 Treaty of Berlin of 1878 117 
 
 71. The Lebanon, an autonomous Province under a 
 
 Christian Governor- General nominated by the 
 Porte in consultation with the Signatory Powers 
 
 of the Treaty of Paris of Sept. i860 118 
 
 7a. Bosnia and Herzegovina under Treaty arrange- 
 ments occupied and administered by Austria- 
 Hungary 120 
 
 73. The Island of Cyprus occupied and administered by 
 
 Great Britain under a Treaty of Alliance with 
 the Porte of 4 June, 1878 131 
 
 CHAPTEE V. 
 
 THE KINGDOMS OF THE LOWER DANUBE. 
 
 74. Principality of Servia — Treaties of Sistova, Bu- 
 
 charest, Adrianople, Ackermann 135 
 
 75. The Kingdom of Servia established on 6 March, 
 
 1883 128 
 
 76. The Principalities of Walachia and Moldavia — 
 
 Treaty of Carlowitz 130 
 
 77. Treaties of Kutschuk-Kainardji, Bucharest, Adrian- 
 
 ople, St. Petersburg 132 
 
 78. Convention of Balta-Liman 13s 
 
 79. Treaty of Paris of 1 856 i^S 
 
 80. Moldavia and Walachia united under the title of 
 
 Eoumania. The Kingdom of Roumania esta- 
 blished on 33 May, 1881 137 
 
CONTENTS. xlix 
 
 Sect. 
 
 8 1 . Principality of Montenegro — Congress of Paris of 
 1856 — Its Independence recognised by the 
 Treaty of St. Stefano of 3 March, 1878, confirmed 
 by the Treaty of Berlin of 13 July, 1878 140 
 
 CHAPTER VT. 
 
 SOURCES OF THE LAW OF NATIONS. 
 
 8a. Natural and Positive Lavir 145 
 
 83. Natural Law of Nations 146 
 
 84. Positive or Voluntary Law of Nations 147 
 
 85. Vattel's Subdivision of Positive Law 148 
 
 86. Customary and Conventional Law 1 50 
 
 87. Identity of the Law of Nations with the Law of 
 
 Nature, according to Hobbes and Puffendorf ... 151 
 
 88. The Law of Nations a Special Science, according to 
 
 De Wolff and Vattel 153 
 
 89. Essential Difference between Nations and Indivi- 
 
 dual Human Beings 153 
 
 90. The Law of Nature 153 
 
 91. Identical Natural Law of Rude and Civilised 
 
 Nations i54 
 
 93. Growth of the Positive Law of Nations i55 
 
 93. Study of the Law of Nations in England 157 
 
 94. Courts of the Law of Nations 158 
 
 95. Customary or Consuetudinary Law of Nations 159 
 
 96. Relations with Non-Christian Powers exceptional... 161 
 
 97. The Diplomatic Science 163 
 
 98. Conventional Law of Nations 164 
 
 99. Views of Martens and others contrasted with those 
 
 of Schmalz and others 165 
 
 100. Ortolan's View of the Effects of Conventions on 
 
 General Law 167 
 
 1 1. Wheaton's Earlier and Later Views 168 
 
 loa. Illustration as to Contraband of War 169 
 
 PART I. d 
 
1 CONTENTS. 
 
 Sect. Page 
 
 103. Preambles and Recitals of a Declaratory Character . 173 
 
 104. Objections to the Idea of any Law properly 
 
 speaking between Nations... i74 
 
 105. International Morality distinct from the Law of 
 
 Nations i75 
 
 OHAPTEE VII. 
 
 BIGHT OF SBLE-PBESERVATION. 
 
 106. Absolute and Conditional Rights of Nations 178 
 
 107. Right of Self-Defence 179 
 
 108. Treaty-Limitations of such Right 1 80 
 
 109. Right of Self- Aggrandisement 181 
 
 no. Right of anticipating Attack 183 
 
 III. Right of Confederation 185 
 
 iia. The Balance of Power 187 
 
 CHAPTER VIII. 
 
 EIGHT OF ACQUISITION. 
 
 113. Establishment of a Nation in, a Country 191 
 
 114. Juridical Notion of Possession 19a 
 
 115. Possession as founding a Right of Property 193 
 
 116. Primitive and Derivative Acquisition 195 
 
 117. Settlement of a Nation 196 
 
 118. Right of Occupation 196 
 
 119. Right of Discovery 197 
 
 130. Notification of Discovery 198 
 
 131. Acts confirmatory of Occupation aoo 
 
 12,2. Discovery followed by Settlement constitutes a 
 
 Perfect Title 201 
 
 123. Extent of Right of Discovery 303 
 
 1 24. Extent of Right of Occupation 204 
 
 125. Principles of Law advanced by the United States 
 
 of America 305 
 
CONTENTS. H 
 
 Sect. Page 
 
 1 26. Discovery of the Mouth of a River 307 
 
 127. Conflict with acknowledged Law 309 
 
 128. Right of Settlement 2io 
 
 129. Usucaption or Prescription 2ia 
 
 130. Territory of the Hudson's Bay Company 213 
 
 131. Right of Contiguity 214 
 
 132. Arcifinious States 315 
 
 133. Discovery of the New World 217 
 
 134. Settlements in the New World 2i8 
 
 135. Possessory Right of Native Indians .-> 330 
 
 136. Agriculture in relation to pasture 230 
 
 137. The Indian Title 22i 
 
 138. Derivative Acquisition 224 
 
 139. Title by Cession 226 
 
 CHAPTEE IX. 
 
 EIGHTS OF POSSESSION. 
 
 140. The Territory of a Nation , 228 
 
 141. Extension of Territoiy 229 
 
 143. Empire a primary Territorial Right 330 
 
 143. Empire distinct from Domain 330 
 
 144. Empire over things which cannot be appropriated . 331 
 
 145. Empire over Territorial. Rivers 332 
 
 146. Modification of Right of Empire by Compact 235 
 
 147. Empire over Frontier Rivers 236 
 
 148. Treaty stipulations as to use of Frontier Rivers ... 237 
 
 149. Conventional Law of Europe as to the Great Rivers 
 
 of Europe 340 
 
 150. The Navigation of the Danube under the control 
 
 of an European Commission since 1 856 24 1 
 
 151. Prolongation of the Commission under the Treaty 
 
 of Berlin, 1878, and the Treaty of London of 
 
 10 March, 1883 343 
 
 d3 
 
Hi CONTENTS. 
 
 Sect. rage 
 
 153. Establishment of the mixed Commissioa of the 
 
 Danube by the Treaty of 1883 247 
 
 153. The Thalweg or Midchannel of a River the boun- 
 
 dary of Conterminous States 249 
 
 154. Right of Alluvion 251 
 
 155. Prescriptive Rights over Rivers 252 
 
 156. The Stade or Brunshausen Toll 253 
 
 CHAPTER X. 
 
 RIGHT OF JURISDICTION. 
 
 157. Incidents of the Right of Empire 257 
 
 158. National Sovereignty properly Territorial 258 
 
 159. The Jus Civile of a State operative only within its 
 
 Territory 259 
 
 160. The Comity of Nations sometimes gives eflFect to 
 
 Foreign Law 261 
 
 161. Personal, Real, and Mixed Statutes 263 
 
 162. Growth of Private International Jurisprudence ... 265 
 
 163. Exceptional position of Europeans whilst resident 
 
 amongst Asiatics 266 
 
 164. Personal Actions of Foreigners 268 
 
 165. Ex-territoriality of certain Foreign Persons and 
 
 Things 271 
 
 166. Merchant Vessels are subject to the Territorial 
 
 Law 272 
 
 167. Right of Emigration 274 
 
 168. Domicil, the criterion of National Character 275 
 
 169. Jurisdiction and Remedies 377 
 
 170. Comity of Nations in regard to Personal Property . 279 
 
 171. Domicil of Origin and Domicil of Choice 281 
 
CONTENTS. liii 
 
 CHAPTER XI. 
 
 EIGHT OF THE SEA. 
 
 Sect. p„ge 
 
 173. The use of the open Sea coramon to all mankind... 2S4 
 
 173. A Common Law of the Sea 385 
 
 174. Affinity to the Roman Law in certain matters 386 
 
 175. Origin of the Admiralty Jurisdiction 388 
 
 176. Its connection with that of the ConsulesMaris ... 389 
 
 177. Piracy justiciable everywhere 390 
 
 178. Concurrency of Admiralty with National Juris- 
 
 diction , 291 
 
 1 79. National Jurisdiction over the open Sea , 393 
 
 1 80. Maritime Jurisdiction of a Nation 393 
 
 181. Territorial Seas distinguished from Jurisdictional 
 
 waters 293 
 
 183. Prescriptive Right over portions of the Sea 395 
 
 183. Narrow S.traits..... 396 
 
 184. The rule of the Medium Filum 399 
 
 185. Right of Fishery on the High Seas 300 
 
 186. Neutrality of Jurisdictional Waters 30 1 
 
 187. Right of Maritime Toll in respect of Lighthouses 
 
 and Sea-marks 304 
 
 1 88. Prescriptive Right of Sea-tolls — The Sound Dues . . 305 
 
 189. The Straits between the Mediterranean and the 
 
 Black Sea 308 
 
 190. The Comity of Nations in matters of Revenue and 
 
 Quarantine 309 
 
 191. Right of Fishery in Jurisdictional Waters — Con- 
 
 vention between Great Britain and France 311 
 
 193. Agreement of 1874 between the British and 
 
 German Governments 314 
 
 1 93. Ceremonial of the High Seas 316 
 
 194. Ceremonial within Jurisdictional Waters 319 
 
 195. Origin of the Mercantile and of the Military Flag 
 
 of the Sea 331 
 
liv CONTENTS. 
 
 Sect. . Page 
 
 196. Certain States only entitled to a Mercantile Flag .. 334 
 
 197. Project of a Swiss Mercantile Flag of the Sea 327 
 
 198. The Jerusalem or Terra Santa Flag 330 
 
 CHAPTEK XII. 
 
 RIGHT OF LEGATION. 
 
 199. Origin of Legations 333 
 
 aoo. The person of an Ambassador sacred 334 
 
 301. The Right of Legation an Imperfect Right 335 
 
 303. Reception of an Ambassador discretional ^^6 
 
 303. Conditional Reception of a Subject as a Foreign 
 
 Minister 337 
 
 304. Various Orders of Diplomatic Agents 339 
 
 305. Classification of Public Ministers in the Eighteenth 
 
 Century 343 
 
 306. Rule of the Congress of Vienna 3^4 
 
 307. Diplomatic Agents of the First Class 345 
 
 308. Diplomatic Agents of the Second Class 348 
 
 309. Diplomatic Agents of the Third and the Fourth 
 
 Class 349 
 
 310. Resident Missions 350 
 
 an. Moldavian and Walachian Charges d'Affaires at 
 
 the Ottoman Porte 353 
 
 313. Letters of Credence 0^0 
 
 313. Full Powers 358 
 
 314. Instructions 360 
 
 315. Ceremonial of Reception 363 
 
 316. The Sacred Character of an Ambassador 365 
 
 317. His Ex-territoriality 065 
 
 318. Ex-territoriality of the Ambassador's Hotel, and" of 
 
 his Suite 067 
 
 319. The Ambassador's Jurisdiction over \he personnel of 
 
 the Embassy , 068 
 
CONTENTS. Iv 
 
 Sect. 
 
 aao.. Liability of an Ambassador to the payment of 
 
 Local Dues 069 
 
 aa I. Liberty of Religious Worship 370 
 
 aaa. Inviolability of an Ambassador passing through the 
 
 Territory of a Third Power 373 
 
 aa3. Consuls not Diplomatic Agents 378 
 
 CHAPTER XIII. 
 
 RIGHT OF TREATY. 
 
 aa4. The Sacred Character of Leagues between Nations 382 
 a 25. Leagues may be in confirmation or in extension of 
 
 Natural Right 384 
 
 336. Religious Obligation of every League 385 
 
 aa7. Equal and Unequal Leagues 386 
 
 aaS. Unequal Leagues not contrary to Equity 387 
 
 339. Personal and Real Leagues 388 
 
 330. Tests of Continuing Treaties 389 
 
 331. The Holy Alliance of 1815 a strictly pergonal 
 
 League 391 
 
 333. History of the Holy Alliance 394 
 
 333. The Family Compact of the House of Bourbon 397 
 
 334. Treaties of Navigation and Commerce 398 
 
 335. Treaties of Jurisdiction 40a 
 
 336. Treaties of Extradition 405 
 
 337. Civil Law of the Romans as to Fugitives from 
 
 Justice 407 
 
 338. Common Law of Nations 407 
 
 339. Extradition of Fugitive Slaves and of Deserters a 
 
 frequent subject of Treaty-engagement 409 
 
 340. Extradition of Political Offenders exceptional 410 
 
 341. Treaties of Extradition for the most part tempo- 
 
 rary 4^1 
 
 343, British Statutes on Extradition 4^6 
 
 343. Treaties of Boundary 4^7 
 
Ivi CONTENTS. 
 
 Sect. Page 
 
 344. Judicial Decisions as to the Permaaent Object of 
 
 Certain Treaties 4^9 
 
 245. Treaties which create a Servitude of Public Law . . . 433 
 
 246. Treaties of Equal and Unequal Alliance 424 
 
 247. Treaties of Protection 427 
 
 248. Treaties of Subsidy 428 
 
 249. Treaties of Guaranty 430 
 
 250. Treaties of Neutrality 437 
 
 351. Conclusion and Ratification of Treaties 438 
 
 252. Expiration and Renewal of Treaties 440 
 
 CHAPTEK XIV. 
 
 CAPITULATIONS OP THE OTTOMAN PORTE. 
 
 253. Early Phoenician and Greek Factories in Egypt ... 443 
 
 254. An Amalphitan Factory at Alexandria in the ninth 
 
 century — Pisan Capitulation of 11 73 — Mahom- 
 medan Factory at Canton in the ninth century. . . 446 
 355. System of Personal Laws throughout Europe 448 
 
 256. Nafflbnal autonomy assured to the French in the 
 
 Levant by the Treaty of 1535 453 
 
 257. Privileges assured to English subjects in the 
 
 Ottoman dominions in 1580 457 
 
 358. Privileges secured to the Dutch in 1612 459 
 
 259. Austrian Capitulations of 1 615 459 
 
 360. Prussian Capitulations of 1761 4.60 
 
 361. Swedish Capitulations of 1737; Danish, of 1756; 
 
 Spanish, of 1783; Russian, of 1783; Italian, of 
 1740; Belgian, of 1838; Portuguese, of 1843; 
 Greek, of 1855 460 
 
 262. United States Capitulations of 1830; Brazilian, of 
 
 1 858 46a 
 
 263. Origin of the term " Capitulations " — Covenant of 
 
 Mahomet of 625 — Capitulation of the Kaliph 
 Omar of 636 463 
 
 264. Treaty of Paris, 1 856 466 
 
THE LAW OF NATIONS. 
 
 CHAPTEK T. 
 
 NATIONS AS SUBJECTS OV LAW. 
 
 Nations independent political Communities — Science of the Law 
 of Nations — Element of Eoman Law — Definition of a State adopted 
 by Grotius — Puffendorf s Definition of a State — Christian de "Wolff— 
 Vattel's Definition of a State — Growth of Natural Society — Natural 
 Society of Nations — Nationalisation and Denationalisation of States 
 — Hobbes' view of political Society — Equality of Nations — Perfect 
 and Imperfect Eights of Nations — Eights incidental to \h.e Eight of 
 Self-preservation — Obligations corresponding to Eights — The good 
 offices of Nations discretional — Eight of Coalition. 
 
 § I . The term Nation, in its primary and etymolo- Nations, 
 gical sense, denotes a race of men, in other words, an ^t^pou- ' 
 aggregate body of persons, exceeding a single family, ^u^^;"™" 
 who are connected by the ties of a common lineage, 
 and perhaps by a common language. In a secondary 
 and political sense the term Nation signifies a society 
 of persons occupying a common territory, and united 
 under a common government, in other words, a Com- 
 monwealth or State. It is from this latter point of 
 view that we regard Nations, when we speak of their 
 mutual intercourse being governed by certain rules, 
 which are of paramount obligation, and from the 
 operation of which no Nation can withdraw itself, 
 without renouncing at the same time the fellowship 
 of other Nations. Those rules, being of universal 
 application, admit of scientific investigation, and may 
 be reduced to method ; and the science which is con- 
 versant with those rules is the Science of the Law 
 
 PART I. B 
 
2 NATIONS AS SUBJECTS OF LAW. 
 
 of Nations, in other words, International Juris- 
 prudence. 
 Science of ^ 2. The Scieuce of the Law of Nations may be 
 Nations, accordingly defined to be the Science of the Kules 
 which govern the International Life of States. All 
 States however do not enjoy International Life. Thus 
 the States which constitute the North American 
 Union do not exercise individually any international 
 action, either in relation to one another or in relation 
 to foreign States. The States which form the Hel- 
 vetic Confederation are under similar conditions, as 
 well as the Christian States of the Ottoman Empire, 
 which have not been recognised under the Treaty of 
 Berlin of 13th July, 1878, as Independent States- 
 On the other hand, the States which composed the 
 Germanic Confederation of 181 5 were both Ger- 
 manic States and members of the European family of 
 Nations ; but after the withdrawal of Austria from 
 that Confederation, the States which have formed 
 themselves in 1871 into a new Confederation under 
 the iiame of the German Empire, have ceased to be 
 members of the European family of Nations, and 
 are simply States of the German Empire. 
 Element of § 3- We must not expect to find in the works of 
 LavT^" the earlier writers on Public Law any very complete 
 definition of the elements, which impart to a State 
 the character of a Nation. Amidst the total dis- 
 organisation of the European State-System conse- 
 quent on the Reformation and the religious alliances 
 of the Thirty Years' War, Grotius found no element 
 remaining either in the Feudal or in the Ecclesias- 
 tical Body of Law, upon which he could venture to 
 build up a system of permanent relations between 
 Nations. He fell back accordingly upon those views 
 of a State-System to which the early Jurisprudence 
 
NATIONS AS SUBJECTS OP LAW. 3 
 
 of Rome had given authority, and framed his defi- 
 nition of a State upon the classical model which 
 exists in Cicero's treatise on Political Law^. Thecicerodo 
 treatise itself, in which the original definition qc- ■^®^"^''°*' 
 curs, was not indeed before the eyes of Grotius, as 
 it was lost sight of in Western Europe towards the 
 close of the twelfth century 2, and the fragments of 
 the Vatican Palimpsest, from which the original text 
 has been partially restored, were only deciphered in 
 the earlier part of the present century ; but the defi- 
 nition of a State in the identical language of the 
 great Eoman Jurisconsult, and as falling from the 
 lips of Scipio Africanus himself, had been embodied 
 by St. Augustine in his "City of God^;" and wass.Augua- 
 transmitted therein to the Jurists of the 17th andcwlLte 
 1 8th centuries. It has been conjectured by the-'^®'- 
 learned ciardinal Angelo Maii, the decipherer of the 
 Vatican Palimpsest, that the perusal of Cicero's 
 treatise first suggested to St. Augustine the idea of 
 his incomparable Work. However that may be, the 
 stamp of St, Augustine's approval, having been im- 
 pressed upon the conception of the great Roman 
 Jurisconsult, commended it with additional force to 
 the acceptance of Grotius, who, in seeking to con- 
 struct for the first time a system of Public Law upon 
 the combined basis of Natural Eight and Universal 
 Consent, was anxious to keep in sight as many as 
 possible of the great landmarks, which the pioneers of 
 
 * Est igitur, inquit Africanus, in "Western Europe, who seems to 
 
 respublica res populi ; populus have had access to the original 
 
 autem non omnis hominum ccetus text of Cicero's treatise, 
 
 quoquo modo congregatus, sed ' De Civitate Dei, L. XIX. 
 
 coetusmultitudinis juris consensu c. 21. St. Augustine adds, "ubi 
 
 et utilitatis communione socia- ergo non est ista justitia, pro- 
 
 tus. De Republica, Lib. I. c. 25. fecto non est coetus hominum 
 
 ' John of Salisbury in' the juris consensu et utilitatis com- 
 
 1 2th century is the last writer munione sociatus." 
 
 B 2, 
 
4 NATIONS AS SUBJECTS OP LAW". 
 
 Juridical Science had set up, and which, had hitherto 
 connected International Jurisprudence with general 
 Morals. 
 Definition J 4. Grotius has accordingly defined a State in 
 adopted by these words ; " Est autem civitas ccetus perfectus 
 rotius. liberoruin hominum juris * fruendi et communis utili- 
 tatis causa sociatus ^" It has been remarked by Bar- 
 beyrac in his annotation to this passage, that Grotius 
 has followed Aristotle in defining a State to be a 
 complete Society, in other words, a Society containing 
 within itself all that is necessary for Hving commo- 
 diously and happily. But a more important variation 
 from the classical model may be observed in the sub- 
 stitution of liberorum hominum for multitudinis, a 
 substitution which implies the freedom of the indi- 
 vidual man in a natural state. It is this freedom 
 of the individual man, which forms the keystone of 
 the arch upon which the whole system of Grotius 
 rests. A State accordingly, in the contemplation of 
 Grotius, is a complete body of free men associated 
 together for the enjoyment of Eight and for the 
 common good. 
 Puffen- ^ 5. Pufiendorf, on the other hand, whose object 
 
 nition of a was to identify the Law of Nations with a system of 
 state. Moral Eight based solely on Natural Law, in oppo- 
 sition to the system of Grotius, has thus defined a 
 Civil State : " It is a compound Moral Person, whose 
 , will being united and tied together by those cove- 
 nants which before passed amongst the multitude, is 
 deemed the will of all, to the end that it may use 
 
 * Ju8 or Eight (Droit) has ralibus secundum rectam ratio- 
 been defined to be The External nem utendi. Hobbes de Civ. 
 freedom of the Moral person, c. i. § 7. 
 
 Neque enim Juris nomine aliud ^ De Jure Belli et Pacis, L . I. 
 
 significatur, quam libertas, quam c, i.§ 14. 
 quisque habet, facultatibus natu- 
 
NATIONS AS SUBJECTS OF LAW. 5 
 
 and apply the strength and riches of private persons 
 towards maintaining the common peace and security^. 
 
 The classification of a State under the head of a 
 Moral Person for the purpose of assimilating its rights 
 and duties to those of a Natural Person involves a 
 metaphysical conception of the Being of a State. 
 Pufiendorf s definition will accordingly afibrd no as- 
 sistance in an inquiry in which the real or constituent 
 elements of a State are the subject of investigation. 
 The special merit of Puffendorf is that he was the 
 first to maintain that natural right and international 
 right are not restricted to Christian nations, but are 
 a bond between all Nations, of whatever religion 
 they may be, inasmuch as every Nation is a moral 
 unit of the great human Society. 
 
 § 6. Christian de Wolfi", the master of Vattel, does christian 
 not pause to define a Nation, but commences his trea- 
 tise on the Law of Nations by defining its subject to 
 be the science of the Eight, which Nations or people 
 enjoy in relation to one another, and of the obli- 
 gations corresponding to it. " Scientiam juris quo 
 gentes sive populi inter se utuntur et obligationum 
 eidem respondentium''." But, in thus defining the sci- 
 ence which he proposes to discuss, De Wolff has indi- 
 rectly indicated wherein the character of a Nation 
 consists, when he speaks of the Eight, which Nations 
 or peoples enjoy in relation to one another, and the 
 obligations corresponding to it. It is in the capacity 
 of a people to fulfil the obligations of Natural Society 
 towards other .peoples without the consent of any 
 political superior, that we discover the true charac- 
 teristic of International Life. No political body, which 
 
 « Law of Nature and of Na- entifica pertractatum. Prole- 
 tions, B. VIII. c. 14. § 13. gomena, § i. 
 
 ' Jus Gentium Methodo Sci- 
 
6 NATIONS AS SUBJECTS OF LAW. 
 
 does not possess a perfect liberty of action in such 
 matters, can be in permanent relation to other poli- 
 tical bodies ; for such permanent relation implies the 
 mutual discharge of the duties of Natural Society, and 
 such mutual discharge can only have permanent place 
 between political bodies, which can freely reciprocate 
 good offices, in other words, between political bodies 
 which are sui juris and not subject to any pohtical 
 superior. 
 Vattei's § 7. Vattel at the immediate outset of his work 
 
 of tstTe. ^^^ defined Nations or States in identical terms, as 
 "bodies politic, societies of men united together for 
 the purpose of promoting their mutual safety and 
 advantage by the joint efforts of their combined 
 strengths" He then engrafts upon this real defi- 
 nition a metaphysical conception of the Being of a 
 State, analogous to Pufiendorf's notion. " Such a 
 Society has its affairs and its interests ; it deliberates 
 and takes resolutions in common : thus becoming a 
 Moral Person, which possesses an understanding and 
 a will peculiar to itself, and is susceptible of obliga- 
 tions and rights." He afterwards falls back into the 
 track of De Wolff, and defines the Law of Nations to 
 be the Science of the Right which has place between 
 Nations or States, and the obligations corresponding 
 to that Right; and further, as he proceeds to exa- 
 mine that Right and the corresponding obligations, 
 he characterises Nations as Sovereign States ^, which 
 are to be considered as so many free persons living 
 together in a State of Nature. " It is a settled 
 point," he observes, " with writers on natural law, 
 that all men inherit from Nature perfect liberty and 
 
 ^ Droit des Gens. Pr^limi- sovereignty, that is, absolute 
 naires, § i. dominion over a certain terri- 
 
 ' In the sense of territorial tory. 
 
NATIONS AS SUBJECTS OF LAW. 7 
 
 independence, of which they cannot be deprived 
 without their own consent. In a State the indi- 
 vidual citizens do not enjoy them fully and absolutely, 
 because they have made a partial surrender of them 
 to the Sovereign. But the body of the Nation, the 
 State, remains absolutely free and independent with 
 respect to all other men and aU other nations, as 
 long as it has not voluntarily submitted to them ^"." 
 
 fi 8. Man is so constituted by Nature, that he can- Growth of 
 
 • «/ ' "NT t 1 
 
 not supply all his own wants, but requires the inter- society, 
 course and assistance of his fellow men, either for his 
 immediate preservation, or for the perfection of his 
 Being. The experience of communities on this head 
 confirms what the instinct of the individual man sug- 
 gests. There is accordingly in human nature a ten- 
 dency towards society, and whenever opportunity 
 presents itself, men are found to associate themselves 
 together for the purpose of mutually aiding and 
 assisting one another. There thus grow up spon- 
 taneous relations of Natural Society amongst men. 
 The law of this Natural Society is that each indi- 
 vidual should do for the others every thing which 
 their welfare requires, and which he can perform 
 without neglecting the duty which he owes to him- 
 self, and this obligation of Natural Society is co-exten- 
 sive with the human race". The Universal Society 
 of the human race being thus an institution of Na- 
 ture, all men are bound to cultivate it, and to dis- 
 charge its duties ; and they cannot release themselves 
 from that obligation by any convention, or by any 
 private association. When, therefore, men unite 
 themselves in Civil Society for the purpose of forming 
 themselves into a State, they may enter into positive 
 engagements towards one another individually, and 
 1° Pr61iminaires, § 4. " Pr61iminaires, § 10. 
 
8 NATIONS AS SUBJECTS OP LAW, 
 
 towards the State as a community, but they continue 
 stm to be under the obligations of Natural Society 
 towards the rest of mankind. The mode of dis- 
 charging these obligations may be influenced by the 
 institution of Civil Society, inasmuch as the individual 
 members of a political community having agreed in 
 certain things to act in cominon, and having resigned 
 their rights, and submitted their will to the common 
 body in every thing which regards their welfare as a 
 community, the duty of discharging the obligations 
 of Natural Society towards strangers, in all matters 
 wherein the liberty of the individual members has 
 been restricted, devolves upon the common body ; in 
 other words, upon the State. There thus grow up 
 spontaneously relations of Natural Society amongst 
 States, the purpose of which is the interchange of 
 good ofiSces between political communities for their 
 mutual preservation, and for the advancement of the 
 happiness of one another. Political communities par- 
 ticipate in this Natural Society, as free and inde- 
 pendent bodies of men, under conditions analogous 
 to those tmder which individual men participate in 
 Civil Society. " As men," writes Vattel, " are subject 
 to the laws of Nature, and as their union i?i Civil 
 Society cannot have exempted them from the obli- 
 gation to observe those laws, since by that union 
 they do not cease to be men, the entire Nation, whose 
 common will is but the result of the itnited wills of 
 the citizens, remains subject to the laws of Nature, 
 and is bound to respect them in all its proceedings ^^. 
 Natural § 9. International Society is thus in its elementary 
 
 Nations." Condition the most enlarged phase of Natural So- 
 ciety, wherein men hold intercourse with one another, 
 not individually and immediately as in Civil Society, 
 '^ Prgliminaires, § 5. 
 
NATIONS AS StTBJECTS Of" LAW. 9 
 
 but collectively and by representation, the Body of 
 men, of which a political community consists, holding 
 intercourse with other Hke Bodies of men through 
 the medium of the State, the internal organisation 
 of which is immaterial, provided it represents the 
 Civil Society for all international purposes. It is 
 • necessary for this end, that a State should possess 
 all the qualifications for Natural Society, which the 
 individual members of it inherit from Nature, and 
 should be able to perform towards other States every- 
 thing which their welfare requires, and which it can 
 effect without neglecting the duty which it owes to 
 its own members. A State must therefore for the 
 purposes of International Society be free and inde- 
 pendent of all other States, in like manner as indivi- 
 dual men are by nature free and independent of one 
 another. Independence is accordingly the funda- 
 mental element which imparts to a State the character 
 of a Nation. A Nation is in fact a political body, 
 capable of discharging without the consent of any 
 political superior the obligations of Natural Society 
 towards other political bodies ; and of regulating 
 in concert with them the mode of discharging those 
 obligations, either as regards the mutual action of 
 the communities themselves, or as concerns the in- 
 tercourse between individual members of them. 
 
 ^ lo. A State is admitted into the fellowship of Nationaii- 
 Nations either overtly by the recognition of its In- 8^^.° 
 dependence in some Public Act on the part of the 
 Established Powers, or tacitly by being allowed to be 
 a contracting party to a Public Convention entered 
 into with the Established Powers. Thus the States 
 of the Eoman Empire of the Germans, upon the sig- 
 nature of the Treaty of Westphalia, became de jure Treaty of 
 members of the European family of Nations. Their n^^^ ^ *" 
 
10 NATIONS AS SUBJECTS OP LAW. 
 
 capacity to make conventions among themselves and 
 with non-Germanic Powers, without the political 
 sanction of the Emperor and the Empire, had been 
 under the Vlllth Article of that Treaty expHcitly 
 recognised by the established Powers, and so became 
 part of the Public Law of Europe. On the other hand, 
 the Federal Union of North American States was de 
 facto recognised as a Nation by France, when Louis 
 XVIth concluded the Treaties of Paris, (Feb. 6th, 
 1778,) with the Envoys of the Thirteen Provinces; 
 and by the Low Countries, when the States General 
 concluded the Treaty of the Hague with them, (Octr. 
 8th, 1782); and the claim of the Union to be gene- 
 rally regarded as a Nation, became indisputable from 
 the day when the Mother Country acknowledged de 
 facto her former dependencies to be sui juris by enter- 
 ing into international engagements with the Federal 
 Union. (Treaty of Versailles, Sept. 3, 1783.) 
 Denation- On the other hand, the Denationalisation of a State 
 of spates, ensues, upon its ceasing to have the capacity to enter 
 into engagements freely with other Nations, whether 
 it has voluntarily renounced its capacity, or has been 
 deprived of it by a superior Power. Thus the Kepub- 
 lics of the Valais and of Geneva, and the Principality 
 of Neuchatel, voluntarily renounced their capacity to 
 enter into treaty-engagements with foreign powers 
 upon their admission into the Union of Helvetic 
 States ^^ and the separate Nationality of each State 
 was thenceforth merged in the common Nationality of 
 the Federal Union. On the other hand, the princes 
 of the Germanic Empire who were mediatised upon 
 Confedera- the formation of the Confederation of the Ehine, 
 thrBhine, (J^lj 12, 1806",) wcrc interdicted by the independ- 
 
 July 12. 
 
 1806. " Martens, Nouveau Eecueil de Trait6s, IV. p. 168. 
 
 » Ibid. Vni. p. 488. 
 
NATIONS AS SUBJECTS OP LAW. 11 
 
 ent members of that Confederation, to whose sove- 
 reignty they had been -made respectively subject, 
 from entering into treaty-engagements with Foreign 
 Powers. They accordingly ceased to occupy the 
 place in the family of Nations, into which they had 
 been admitted by the Treaty of Westphalia. 
 
 §11. Hobbes has adopted a view of the origin ofHobbes' 
 Political Society, according to which no community poh^icli 
 would be entitled to be regarded as a Nation, unless society. 
 it were adequate to maintain its independence against 
 all external assault by its own intrinsic strength ^\ 
 Such an idea of independence as applicable to Poli- 
 tical Societies, however tenable it may be in abstract 
 theory, will be found in practice to be too absolute, 
 as there are weaker and stronger members of the 
 family of Nations, and the weaker members owe the 
 maintenance of their independence to the mutual 
 fears and jealousies of the more powerful Nations, 
 whilst on the other hand the stronger members could 
 not maintain themselves single-handed against the 
 combined assault of the weaker Nations. A State is 
 entitled to be regarded as independent, if it be not 
 de jure dependent upon any other State for its free- 
 dom of political action. 
 
 ^12. The independence of a Nation is absolute, Equality of 
 and not subject to qualification, so that Nations in 
 respect of their intercourse under the Common Law 
 are Peers or Equals"; and their rights and obliga- 
 tions are under that law reciprocal. Power and 
 weakness do not in this respect give rise to any dis- 
 
 " Necessarium itaque est ad conspicui momenti ad victoriam. 
 
 securitatem quam queerimus ob- De Give, c. 5. § 3. 
 
 tinendam, ut numerus eorum, " Vattel, Pr61iminaires, § 18. 
 
 qui in mutuam opem conspirant, Heffter, § 27. Kluber, § 89. 
 
 tantus sit, ut paucorum hominum Wolff, § 16. 
 ad hostes accessio non sit ipsis 
 
12 NATIONS AS SUBJECTS OF LAW. 
 
 tiaction, and the Principality of Montenegro is as 
 much an independent State as the Empire of all the 
 Russias. It results from this equality, that whatever 
 is lawful for one Nation is equally lawful for another, 
 and whatever is unjustifiable in the one is equally 
 unjustifiable in the other. 
 
 As independence is an essential condition of Na- 
 tionahty, a Nation will be justified in doing or 
 practising whatever is necessary for the maintenance 
 Eight of of its independence. The right of self-defence is ac- 
 linoe^*" cordingly a primary right of Nations, and it may be 
 exercised either by way of resistance to immediate 
 assault, or by way of precaution against threatened 
 aggression. The indefeasible right of every Nation 
 to provide for its own defence, is classed by Vattel 
 amongst \is j^erfed rights. 
 Perfect and § 1 3. The distinction which Vattel has drawn 
 i«|htfof between the perfect and the imperfect rights of 
 Nations. Nations may be conveniently noticed here. " The 
 perfect right," says Vattel", "is that which is accom- 
 panied by the right of compelling those who refuse 
 to fulfil the corresponding obligation ; the imperfect 
 right is unaccompanied by that right of compulsion. 
 The perfect obligation is that which gives to the 
 opposite party the right of compulsion; the imper- 
 fect only gives him the right to ask. The right is 
 always imperfect, when the corresponding obligation 
 depends on the judgment of the party in whose 
 breast it exists, for if in such a case we had a right 
 to compel him, he would no longer enjoy the liberty 
 of determining as to the conduct which he should 
 pursue, in order to obey the dictates of his own 
 conscience. Our obligation is always imperfect with 
 respect to other people, as long as we possess the 
 " Droit des Gens. Pr61iminaires, § 17. 
 
NATIONS AS SUBJECTS OF LAW. 13 
 
 liberty of judging how we are to act, and we retain 
 that liberty on all occasions on which we ought to be. 
 free." A perfect right alone would thus seem to be 
 the subject of Law. An imperfect right is a subject 
 of Comity. 
 
 § 14. Accordingly, a reasonable fear of danger to Eights in- 
 its own independence, is held to justify a Nation in the^^t^i 
 having recourse to war in order to prevent attack, °® yP™^®""' 
 This right of a Nation to* preserve itself from injury 
 by anticipating attack, is a perfect right. It is the 
 right of security, and is incidental to the right of Right of 
 self-preservation. When an injury has been inflicted, ^^°""'y- 
 the same right of self-preservation authorises the 
 injured Nation to obtain complete reparation, and to 
 employ force for that purpose. This may be termed 
 the right of indemnity. Eight of 
 
 The right of self-preservation necessarily involves " ^™°' ^' 
 all other incidental rights which are essential as 
 means to give effect to the principal end ^^.. Thus a 
 Nation, after it has been attacked and has worsted 
 its enemy, will be justified in taking precautions 
 against a second attack by depriving its enemy of 
 the means of renewing his aggression. The justice 
 of aU war depends upon the principles involved in 
 the right of security and the right of indemnity. 
 Whatever strikes at those rights strikes at the Per- 
 fect Rights of a Nation, and is a just cause of war. 
 
 ^15. Every right which a Nation possesses under obUga- 
 the Common Law has its corresponding obhgation. responding 
 The right of security accordingly involves the obligar *° Rights. 
 tion of self-restraint, so as to avoid encroaching on 
 the independence of other States, and the right of 
 indemnity involves the obligation of granting redress, 
 A Nation is mistress of her own actions as long as 
 " Wheaton'a Elements, pt. II. c. i. § i. 
 
14 NATIONS AS SUBJECTS OB" LAW. 
 
 they do not affect the perfect rights of other Nations, 
 It owes as a duty to itself, in the first instance, 
 and in preference to all other Nations, to do every 
 thing that can promote its own happiness and per- 
 fection, but it must not overstep the limit beyond 
 which it cannot pass without impairing the happi- 
 ness and perfection of another Nation. On the other 
 hand, when a Nation cannot contribute to the welfare 
 of another Nation without Soing an essential injury 
 to itself, it has reached the limit of its natural 
 obligations towards that Nation, and it is considered 
 to be under a disability to perform any further good 
 ofl&ces towards it. 
 The good ^ i6. Every Nation is entitled to form its own 
 Nationf judgment whether it can perform towards another 
 disore- Nation any good office without neglecting the duty 
 which it owes to itself^'. Treaty-engagements how- 
 ever may control the exercise of a Nation's free judg- 
 ment in such matters, for a Nation may voluntarily 
 wave some portion of the liberty, which is by Nature 
 inherent in it. In all cases, however, in which a 
 Nation has the right of judging what its duty re- 
 quires, no other Nation can compel it to act in this 
 or that particular manner ; for any attempt at such 
 compulsion would be an encroachment on the inde- 
 pendence of that Nation. It is otherwise where a 
 Nation has voluntarily bound itself to perform a par- 
 ticular good office towards another Nation ; in such a 
 case it has exercised its independence as a Nation 
 when it contracted the particular engagement, the 
 strict fulfilment of which has become henceforth a 
 matter of good faith, and not a sign of dependence. 
 Eight f 17- Since Nations are independent communities 
 
 tion."*'' holding intercourse with one another on terms of 
 
 " Vattel, Prelim inaires, § i6. 
 
NATIONS AS SUBJECTS OF LAW. 15 
 
 equality, every Nation is at liberty to regulate its own 
 actions by its own sense of duty witbin tbe spbere o£ 
 its perfect Rights. Hence a Nation is on many occa- 
 sions under the obligation of allowing certain things 
 to be done by another Nation, although it may dis- 
 approve the same, because it cannot prevent them by 
 force without violating the independence and equality 
 of that Nation, and so destroying the foundation of 
 the Natural Society of Nations. The laws on which 
 that natural society rests are of such paramount 
 importance to the safety of all Nations, that if a more 
 powerful State were at liberty upon its own view of 
 justice or expediency to set them aside in regard to a 
 weaker State, no Nation could rely with any security 
 upon the preservation of its own existence. But 
 every Nation has a perfect right to those things 
 which are necessary to its preservation, and every 
 State enters into the Society of Nations upon that 
 understanding. All Nations have accordingly a right 
 to combine their strength for the purpose of repress- 
 ing any one or more Nations, which seek to infringe 
 any cardinal rule of international life ^''.'' The exercise 
 of that Right however must not extend beyond those 
 limits which the interests of Natural Society mark 
 out ; it must be in its turn so regulated, as not to 
 prejudice the independence of the Nation, which has 
 provoked the interference of its Compeers. 
 
 2" Vattel, Droit des Gens, L. II. § 53. 
 
CHAPTEE II. 
 
 INCIDENTS AND MODIFICATIONS OF 
 INTEE.NATIONAI, LIFE. 
 
 Continuity of International Life — Determination of International 
 Life — International recognition of Independence — International Life 
 not determined by political changes within a State — Personal Trea- 
 ties — Real Treaties when affected by political changes — Sovereignty 
 distinct from Independence — Semi-Sovereign States a Solecism — 
 Conventional Independence of States — Independent States under 
 Protection — The Principality of Monaco — The Lordship of Knip- 
 hausen — The United States of the Ionian Islands — Neutrality 
 of a Protected Independent State — The Free City of Cracow — Its 
 internal Constitution a subject of treaty — Cracow and the Ionian 
 Islands — ^The extinct Republic of Poglizza — The Republic of An- 
 dorre — The Republic of San Marino. 
 
 Continuity ^ i8. The peculiar objects of the Law of Nations 
 national" being tbe external relations which exist between 
 Life. independent political Communities, considered as 
 entire communities, it is immaterial for the purposes 
 of that law, what may be the internal organisation of 
 such Communities, further than to ascertain in what 
 portion the Supreme Power resides ; for the Supreme 
 Power controls the entire Community, and the wiU 
 of the Supreme Power is the will of the Community 
 itself in matters of external, equally as of internal, 
 law. The Supreme Power of a State is termed the 
 Sovereign Power properly, in reference to the mem- 
 bers of the State who are subject to it ; but publicists 
 have sometimes used the term Sovereign Power in a 
 metaphorical sense, to denote the entire State or 
 Nation, viewed from without, and the Law of Nations 
 has accordingly been defined by them to be the law 
 
INTERNATIONAL LIFE. 17 
 
 whicli regards the conduct of Sovereign Powers in 
 relation to one another; the intercourse between 
 States or Nations being, as a matter of fact, carried 
 on between the Sovereign portions of them \ Hence 
 the person of the Sovereign, or Chief of the State, 
 has b'een taken to represent the whole Community, 
 and has become identified with it for purposes of 
 negotiation and treaty. It is immaterial for inter- 
 national purposes what may be the peculiar orga- 
 nisation of the Sovereign Power within a State. 
 For instance, whether .the Chief of the State be an 
 hereditary or an elective Monarch, whether his tenure 
 of office be for life or for a term of jears, whether his 
 power within the State be exercised absolutely ac- 
 cording to his own will or under limitations accord- 
 ing to estabhshed rules, may be considerations of high 
 importance to the subject members of each State, but 
 are matters which do not concern other States or 
 Nations. It is however of concern to other States 
 or Nations that the international life of a State should 
 not be interrupted by any change of internal order, as 
 for instance, by the natural or political demise of the 
 Chief of the State. Hence in States where the most 
 absolute form of Monarchy has prevailed, and where Absoiuto 
 the person of the Prince has been as closely as pos- ^1^^' 
 sible identified with the State itself, the Sovereign 
 Power has nevertheless been distinguished in law 
 from the person of the Prince, and the international 
 relations between two such States have been con- 
 sidered to be maintained de jure between the two 
 Crowns. Treaty-engagements between such States 
 have accordingly not determined upon the natural or 
 political demise of the Princes, who were the original 
 parties to the treaties, but have been considered to 
 ' Austin on Jurisprudence, p. 208. 
 PAET I. C 
 
18 INCIDENTS AND MODIFICATIONS OF 
 
 attach to their Crowns, and the obligations of the 
 treaties have devolved to their successors in the 
 Sovereignty. In other forms of State-Government, 
 the internal constitution of which allows direct nego- 
 tiation with other States to be carried on in the name 
 of the State itself, the continuity of the external life 
 of the State has been equally exempt from any in- 
 terruption by internal changes. 
 Determi- § iQ. There are howevor circumstancos undor wMch 
 "nterna-^ the international life of a State may determine. Thus 
 tionaiiife. ^ State may be merged in its entirety in another 
 State, and become a province or department of that 
 State ; or it may be incorporated into a system of 
 States, and become clothed with the Nationahty of 
 the Union. Thus the kingdom of Navarre has been 
 merged in the kingdom of Spain, and has become a 
 province of that kingdom ; whilst the Duchy of Bur- 
 gundy has been similarly merged in the kingdom of 
 France : on the other hand, the Principality of Neu- 
 chatel and the Eepublic of Valais have both been 
 incorporated into the Union of Helvetic States, and 
 have severally ceased to maintain independent rela- 
 tions with Foreign Powers. Again, a State may 
 undergo division, and be converted into two or more 
 independent States ; or it may be broken up, and its 
 fragments may be absorbed into the neighbouring 
 The king- States. Thus the kingdom of the Netherlands under- 
 NeUier- ° Went division in 183 1, and was converted into the two 
 lands. independent kingdoms of Holland and of Belgium; 
 whilst the kingdom of Poland has been broken up 
 and its fragments absorbed into the three neighbour- 
 ing States. The international life of a State may 
 determine at its own will, or by conquest, without 
 the sanction of other States ; but the transformation 
 of an independent State into two or more independent 
 
INTERNATIONAL LIFE. 19 
 
 States, in other words, the creation of a new in- 
 dependent State, is not complete until other Nations 
 have recognised its National character. It is the 
 quality of Independence for the first time asserted on 
 behalf of a State, which requires recognition on the 
 part of other Nations, not the increased or diminished 
 extent of its territorial possessions. A State may 
 indeed notify to other States any important additions 
 to its territorial limits, which it may have acquired 
 either by occupation or by cession ; but such notifica- 
 tions are matters of courtesy for mutual convenience, 
 and the announcement of the fact of any such acqui- 
 sition is not obligatory upon the State which makes 
 it. Thus the United States of North America might 
 have annexed the territory of Texas, and might have Annex- 
 thought fit to notify to other nations the addition of Texas, 
 a new State to the Union ; but the question of right 
 was complete upon the admission of Texas into the 
 Union under a Resolution of Congress, and the an- 
 nexation required no recognition from third parties to 
 give it effect. On the other hand, the transformation 
 of the ancient kingdom of New Spain into the several 
 independent Kepublics of Central America required 
 recognition from other Powers, before it could be 
 regarded as internationally complete, as the result 
 of that transformation was to give birth to new inde- 
 pendent political bodies. 
 
 J 20. A Dependency may separate itself from the f?^*™*^ 
 independent political community of which it has been cognition 
 a member, and may declare itself an Independent pendence. 
 Sovereign State ; and so long as the New State con- 
 fines its action within the Civil Society of which it is 
 composed, it does not require any recognition of its 
 Sovereignty from other States. But if it seeks to 
 hold International intercourse with other States, and 
 
 c a 
 
20 INCIDENTS AND MODIFICATIONS OF 
 
 claims to be received into the fellowsliip of Nations 
 upon terms of equality and reciprocity with other 
 Nations, it must obtain from them the recognition of 
 its Independence as a preliminary step. Every other 
 State is at liberty to grant or withhold this recogni- 
 tion, subject to the consequences of its own conduct 
 in this respect ; as for instance, if it grants such 
 recognition, it may incur the hostility of the State 
 from which the new State has separated itself ; if it 
 refuses such recognition, it may incur the hostility of 
 the new State or its allies ; but until such recognition 
 has been universal on the part of other States, the 
 new State is entitled to the exercise of international 
 privileges in relation to those States only which have 
 recognised its independence ^. This recognition may 
 take place explicitly under the express provisions of a 
 treaty of friendship or alliance, in which the inde- 
 pendence of the new State is guaranteed by its ally : 
 thus France recognised and guaranteed the inde- 
 pendence of the United States of America by the 
 Treaty of treaty of Paris 3 (Feb, 6, r778); and Prussia in a 
 e.^i'yfs.* ' similar manner recognised and guaranteed the Con- 
 federation of the Ehine by the Treaty of Tilsit * 
 (July 7, 1807) ; or by implication, upon the mutual 
 interchange of accredited envoys, whereby either 
 State acknowledges de facto the competency of the 
 other to negotiate and contract engagements under 
 the Law of Nations. 
 Interna- ^21. The International Life of a State is not deter- 
 nXdetOT- mined by an internal Revolution, whereby the Su- 
 ™oUti^a^^ preme Power of the State is transferred from one 
 changes portiou of tho bodv poHtic to another portion. A 
 
 within a~ , .. .,. 
 
 State. btate does not enjoy any international rights by rea- 
 
 ^ Wheaton, Part I. c. 2. § 6. ^ Martens, Recueil, II. p. 605. 
 * Ibid. VIII. p. 641. 
 
INTERNATIONAL LIFE. 21 
 
 son of its peculiar internal organisation, and it there- 
 fore does not forfeit an/ such right by a modification 
 of its internal constitution, neither can it thereby dis- 
 charge itself from any of its* obligations towards other 
 Nations. Pending a Revolution, the ordinary rela- 
 tions of a State towards other States may be inter- 
 rupted owing to the suspended action of the Supreme ' 
 Power of the State, and its temporary inability to 
 direct the wUl of the entire community. But the 
 interruption of ordinary international intercourse is 
 an abnormal state of things, which ceases immediately 
 upon the restoration of internal order within the 
 State, and if the Revolution fails, the status ante 
 revives : if, on the other hand, the Revolution proves 
 successful, the government de facto succeeds to the 
 rights and obligations of its predecessor in all inter- 
 national matters, and intercourse is resumed with 
 other nations on that understanding. There may be 
 exceptions however to this rule with respect to cer- 
 tain treaty-engagements, which come under the gene- 
 ral division ^ of personal as contradistinguished from Personal 
 real treaties. Of such kind was the famous treaty of ^^**'*'- 
 alliance" concluded in 1761, under the name of the 
 Family Compact, between the Very Christian King The Fami- 
 and the Catholic King, and to which the other reign- of 1761^°^ 
 ing Princes of the House of Bourbon were invited to 
 accede. The engagements of this treaty necessarily 
 determined from the moment when the princes of the 
 House of Bourbon ceased to reign in France. 
 
 ^22, On the other hand, the identity of a Repub- EeaiTrea- 
 lican State in respect of real treaties is not destroyed 
 by its conversion into a Monarchical State ; " Every 
 alliance," writes Vattel ', " made by a Republic is in 
 
 ' Vattel, B. II. c. 12. § 183. ' Martens, Eeoueil, I. p. 16. 
 Wolff, Jus Gentium, § 414. ' Vattel, B. II. c. 12. § iSg. 
 
22 INCIDENTS AND MODIFICATIONS OF 
 
 its own nature real, for it relates only to the body of 
 the State. When a free People, a popiilar State, or 
 an aristocratical -Eepublic concludes a treaty, it is the 
 State itself which contracts, and her engagements do 
 not depend on the lives of those who were only the 
 instruments in forming them ; the members of the 
 ' people or. of the governing body change and succeed 
 each other, but the State still continues the same. 
 Since, therefore, such a treaty relates directly to 
 the body of the State, it subsists, though the form of 
 the Eepublic should happen to be changed, even 
 though it should be transferred into a Monarchy. 
 For the State and the Nation are still the same, not- 
 withstanding every change that may take place in 
 the form of the government, and the treaty concluded 
 with the Nation remains in force as long as tbe Nation 
 exists. But it is manifest that all treaties relating to 
 the form of government are exceptions to this rule. 
 Thus two popular States that have treated expressly, 
 or that evidently appear to have treated with the 
 view of maintaining themselves in concert in their 
 state of liberty and popular government, cease to be 
 allies from the very moment that one of them has 
 submitted to be governed by a single person." 
 " Enimvero si in foedere consensum sit, quod statui 
 non nisi populari proprium sit, per se patet, sublato 
 statu populari tolH etiam foedus, ac per consequens 
 mutata reipublicse forma idem finiri *." 
 Sovereign- § 23. Grotius has been content to define a State 
 frominde'- to be a Complete body of free persons, associated 
 pendenoe. together to enjoy peaceably their Eight, and for their 
 common benefit ' ; and has declared the mutual rela- 
 tions of such bodies to be the objects of Public Law. 
 
 ' "Wolff, Jus Gentium, § 416. 
 
 ° De Jure Belli et Pacis, L. I. c. i. § 14. 
 
INTERNATIONAL LIFE. 23 
 
 Wol£f^o has not adopted any different view when 
 he defined a nation as " multitudo hominum in civi- 
 tatem consoeiatorum." Vattel, on the other hand, 
 has defined States or Nations as " societies of men 
 united together for the purpose of promoting their 
 mutual safety and advantage by the joint efforts of 
 their combined strength";" but he has subsequently 
 endeavoured to attain to greater precision, when he 
 says, that " every Nation that governs itself, under 
 what form soever, without dependence on any foreign 
 power, is a Sovereign State. Its rights are naturally 
 the same as those of any other State. Such are the 
 moral persons who live together in a natural society, 
 subject to the Law of Nations. To give a nation 
 "a right to make an immediate figure in this grand 
 society, it is sufficient that it be really sovereign and 
 independent ; that is, that it govern itself by its own 
 authority and laws ^^." Vattel, however, has gone too 
 far in combining Sovereignty with Independence as 
 the criteria of Nationality; for Sovereign States are 
 not necessarily Nations, whUe States internationally 
 independent are not always Sovereign Powers. Thus 
 the States of North America which compose the TheXJnited 
 Federal Union are all Sovereign States ^^ but thoAmerira 
 nationality of each State is merged in the nationality states?^ 
 of the Union. Under the Federal Compact, the 
 members of the Union have precluded themselves 
 from entering severally into treaty-engagements with 
 Foreign Powers, and they can only enter into such 
 engagements jointly as an Union of States, the treaty- 
 making power being under the constitution of the 
 
 '" Wolff, Jus Gentium, Prole- i. § 4. 
 
 gomena, § 2. " Cranch's American Keports, 
 
 " Prdiminaires, § 9. IV. p. 212. M^IIvaine v. Coxe's 
 
 '' Droit des Gens, L. I. c. Lessee. 
 
24 INCIDENTS AND MODIFICATIONS OF 
 
 Union vested in the Federal Government. The States 
 have accordingly ceased to be severally Independent 
 Bodies Politic, and their respective rights and ob- 
 ligations are not the subjects of international law, 
 but are regulated by the constitutional law of the 
 Union. The relations of the Union, on the other hand, 
 towards the several component States are similarly 
 determined by the Federal Compact, whilst the rela- 
 tions of the Union itself towards Foreign States are 
 regulated by a law independent of the Federal 
 Compact ; to wit, the Law of Nations. On the other 
 hand, there may be States, which maintain inde- 
 pendent relations with other nations, but have not 
 The states full riffhts of sovereimtv. Thus the States of the 
 ^nEm-' Eoman Empire of the Germans enjoyed, subsequently 
 GennaM^* to the. pcacc of Wcstphalia, the right to form offen- 
 indepen- give and defensive alliances amongst themselves and 
 not Sove- with Foreign Powers, yet no alteration took place in 
 states. their feudatory relation to the Chief of the Empire, 
 as their Supreme Lord or Suzerain, until 1806, when 
 the Emperor Francis II declared the Germanic 
 Empire to be dissolved, and released the Electors, 
 Princes, and States from their allegiance to him as 
 Chief of the Empire. They thereupon became for 
 the first time Sovereign Powers. So the Barbary 
 States, whilst they were tributaries of the Ottoman 
 Porte, and subject to the Suzerainty of the Sultan of 
 Constantinople, exercised the right of entering into 
 treaty-engagements, as Independent Powers, with the 
 Christian Nations of Europe. 
 Semi-Sove- § 24. Some of the more recent writers on the Law 
 sta^s a of Nations, such as Martens ^*, Kliiber ^^, and Hefiter ", 
 
 solecism. 
 
 ^* Precis du Droit des Gens, " Heffter, Das Europaische 
 § 20. Volkerreoht, § 19. 
 
 " Droit des Gens, § 24. 
 
INTERNATIONAL LIFE. 25 
 
 have applied the distinctive epithet of Semi-Sove- 
 reign to such States as are recognised as Independent 
 States under the Pubhc Law of Europe, but have 
 not complete rights of Sovereignty. The term Semi- 
 Sovereign seems to have been introduced by John 
 Jacob Moser, in his " Essays on the Law of Nations 
 in time of Peace"." Hefiler, although he recognises 
 the classification, considers it to be objectionable; and 
 Wheaton has observed that "the denomination of 
 Semi-- Sovereign States is an apparent solecism in terms. 
 As no State," he says, " can be considered at once 
 sovereign and subject, so no State can with strict pro- 
 priety be considered as half or imperfectly supreme. 
 But as some States are by special compact dependent 
 upon other States with respect to the exercise of 
 certain rights essential to perfect sovereignty, such 
 States have been termed Semi-Sovereign States." 
 
 ^25. It is not desirable that this classification Conven- 
 of certain States as Semi-Sovereign States should de™endenc 
 find a place in a system of law which is concerned °^^***®'' 
 only with the external relations which States bear 
 to one another as independent political communities ^^ 
 The term itself, " Semi-Sovereign," points at once to 
 another system of political law, and suggests rather 
 a subordination of position analogous to that in 
 which the Princes and States of the Germanic Empire 
 stood in former days relatively to the Emperor as 
 their Suzerain or Supreme Lord, than a modification 
 of the manner in which the foreign relations of an 
 independent State, as such, are maintained. The 
 international rights of the States, which rank in this 
 
 " Beytrage zum Vblkerrecht wic, 1763), adopts the division 
 
 in Friedenzeiten, I. p. 508, cited of States of the First Order and 
 
 by Gunther I. p. izo. States of Second Order, meaning 
 
 " Neyron in his Principes du by the latter term States under a 
 
 Droit des Gens Europeens(Bruns- feudal Suzerain. 
 
states. 
 
 26 INCIDENTS AND MODIFICATIONS OF 
 
 category, are in substance as complete as those of any 
 other independent State, and it is only in the mode 
 in which those rights are exercised that a distinction 
 is found to exist. Independent States in their normal 
 condition communicate immediately with one another; 
 but there are exceptional instances in which the com- 
 munications of an Independent State with Foreign 
 Powers are carried on through the medium of a third 
 Power, which has been acknowledged by public trea- 
 ties as the authorised organ of such communications. 
 In certain of these cases the Intermediate Power has 
 been recognised by Foreign States as exercising a 
 j^otection (patrocinium) over the weaker State, and 
 has been acknowledged in terms as the Protecting 
 Protected Power. The designation of Protected States''-^ would 
 accordingly seem frima facie to be appropriate to 
 these States in a system of international law, as 
 being suggestive of their essential peculiarity ; but as 
 there are many protected Staies, which in accepting 
 that character have abdicated altogether their inde- 
 pendence, and do not maintain independent political 
 relations under any modification with Foreign Powers, 
 the designation of "Protected States" would be not 
 sufficiently precise, and it would be necessary, in order 
 to avoid confusion, to distinguish them further as 
 Protected Independent States. But a definition less 
 open to objection is suggested by the consideration 
 that the independence which this class of States 
 enjoys is regulated in its mode of exercise by Public 
 Conventions. Their independence therefore may fitly 
 be characterised as a Conventional Independence, in 
 
 " Grotius, L. I. c. 3. s. 21. Qusest. Jur. Publici, L. I. c. 9, 
 
 § 3, recognises States which by speaks of States ' qui sub tui- 
 
 treaty are ' sub patrocinio, non tione sunt.' 
 sub ditione,' and Bynkershoek, 
 
INTERNATIONAL LIFE. 27 
 
 contradistinction to the absolute Independence which 
 the more powerful States acknowledging no political 
 Superior enjoy under the common Law of Nations. 
 
 § 26. The origin of these Protected Independent independ- 
 States is to be referred either to special treaty-en- protected^ 
 gagements between two States, under which the ^^'^^rel"^' 
 stronger Power has granted its protection to the*'es. 
 weaker States, and their treaty-engagements have 
 been formally recognised by the European Powers ; 
 or to some general treaty amongst the European 
 Powers, under which the Protecting Power has un- 
 dertaken to protect the weaker State, and the other 
 Powers have engaged themselves to hold political 
 intercourse with the weaker State only through the 
 medium of the Protecting Power. In the case of 
 Protected States, which are not members of the 
 Family of Nations, the relations between them and 
 the Protecting Power are for the most part founded 
 upon some compact ^^ between them, but as the pro- 
 tected State does not maintain any relations what- 
 ever with Foreign Powers, it is virtually a dependency 
 of the Protecting Power, being distinguished from 
 ordinary dependencies in this respect, that its rights 
 are secured and its obligations limited by compact. 
 It is a dependency suh modo, as distinguished from 
 an absolute dependency. 
 
 The Native States of India are instances of Pro- Native 
 tected Dependent States, maintaining the most va- 1^^^ ° 
 ried relations with the British Government under 
 compacts with the East India Company. All these 
 States acknowledge the supremacy of the British 
 Government, and some of them admit its right to 
 interfere in their internal affairs, inasmuch as the 
 
 '"' In the natiye of an un- im2>erii. Grotius, L. II. c. 15. 
 equal alliance cum diminutione s. vii, § 2. 
 
28 INCIDENTS AND MODIFICATIONS OF 
 
 East India Company had become virtually sovereign 
 over them. None of these States, however, hold any 
 political intercourse with one another or with Foreign 
 Powers ^^. 
 Prinoi- §27. The Principality of Monaco is a remarkable 
 
 Monaco, instance in Europe of a Protected Independent State ; 
 the relations of which towards the Protecting Power 
 have been settled by special treaty-engagements 
 between itself and the Protecting Power, which 
 have been subsequently recognised by the European 
 Powers. Monaco was erected into a Principality as 
 far back as the tenth century (a. d. 968) by the 
 Emperor Otho I, in favour of the Grimaldi family, 
 who were Lords of Antibes in France, and it is held 
 in the present day by a descendant of the original 
 grantee through the female line. In the seventeenth 
 century the Prince of Monaco, in order to disem- 
 barrass his Capital of a Spanish garrisg,n, which had 
 usurped possession of it at a period when the Duchy 
 of Milan was still an appanage of the Spanish Crown, 
 entered into a treaty with Louis XIII. of France 
 Conven- (Convention of Peronne, 14 Sept. 1641)^^, whereby 
 ronne, 14th ^^ placed himself under the protection of the King 
 Sept. 1641. Qf France, who undertook thenceforth to maintain at 
 his own charge a garrison of five hundred French 
 soldiers in Monaco. This Treaty continued in force 
 and operation down to 1792, when the National Con- 
 vention of France incorporated the Principality of 
 Monaco, including the three communes of Monaco, 
 Mentone, and Eoccabruna, into the French Republic, 
 
 '' An account of siS classes Captain J. Sutherland. Cal- 
 
 of Protected States in India is cutta, 1833. British and Fo- 
 
 given in "Sketches of the Ke- reign Eeview (1839), vol. viii. 
 
 lations subsisting between the p. 154. 
 
 British Government of India and ^^ Scbmauss^Corpus Jur. Gen- 
 
 the diiFerent Native States," by tium Aoademicum, I. p. 521, 
 
INTERNATIONAL LIFE. 29 
 
 and constituted it within the Department of the 
 
 Maritime Alps. By the subsequent Treaty of Paris ^^ 
 
 (30 May, 18 14), concluded between France on the 
 
 one part and Austria and her allies on the other, 
 
 France renounced possession of Monaco, and the 
 
 ancient relations between the Prince of Monaco and 
 
 the King of France, such as they existed before 
 
 I Jan. 1789, were recognised to be once more in 
 
 force. By the subsequent Treaty of Paris 2*, (20 Nov. Treaty of 
 
 1 81 5,) concluded between the four Allied Powers No^fig"^. 
 
 severally on the one part, and France on the other, 
 
 it was declared that the relations re-established 
 
 by the Treaty of 30 May, 18 14, between France and 
 
 the Principality of Monaco, should be at an end, and 
 
 that analogous relations should thenceforth exist 
 
 between that Principality and the King of Sardinia. 
 
 Those relations were subsequently defined by the 
 
 Treaty of Turin ^^ (Nov. 7, 1817,) concluded between Treaty of 
 
 the King of Sardinia and the Prince of Monaco, ^ Nov. 
 
 almost literally in the words of the Convention of '^'?- 
 
 Peronne {mutatis mutandis). Thus the King of 
 
 Sardinia was to maintain a garrison at his own 
 
 expense in Monaco, which was to be under the 
 
 command of the Prince of Monaco, as Governor for 
 
 his Majesty, and the King was not to interfere with 
 
 the Prince's rights of Sovereignty in other respects. 
 
 The King of Sardinia undertook to defend the Prince 
 
 of Monaco against foreign enemies, to include his 
 
 name in all treaties of peace, and to allow him to use 
 
 the Koyal Standard of Sardinia in time of war. The 
 
 Principality meanwhile had its own commercial flag, 
 
 and Consuls were accredited by the King of Sardinia 
 
 ^ Martens, N. E. II. p. 5. tens, Nouveau Supplement, II. 
 
 " Martens, N. E. II. p. 687. p. 343. 
 ^^ Articles de Protection, Mar- 
 
sen, 
 
 30 INCIDENTS AND MODIFICATIONS OF 
 
 to reside at Monaco in order to watch over the 
 commercial interests of Sardinian subjects in that 
 port, precisely as in the ports of other Independent 
 States. The integrity of the Principality was subse- 
 quently affected by the annexation of Mentone and 
 Roccabruna to Piedmont in 1848, when the inhabi- 
 tants of those districts, dissatisfied with the adminis- 
 tration of the reigning Prince, voted their annexation 
 Cession of to Piedmout. The annexation of these districts was 
 and Eoc- acccptod by the Sardinian Parliament and sanctioned 
 rtnoe? '" by the King of Sardinia, whilst the Prince of Monaco 
 recorded a protest ^^ against the wrongful act of the 
 Protecting Power. 
 The Lord- ^ 28, The Sciguory or Lordship of Kniphausen 
 kmphau- stood in a more anomalous relation to the Grand 
 Duke of 01denburg._ The State of Kniphausen had 
 originally been a suh-feudum of the Holy Roman 
 Empire, held mediately by its Lord through the 
 Feudal Court of Brussels. After the Emperor of the 
 Romans had by the Treaty of Campo Formio ^^ 
 (17 Pet. 1797,) renounced possession of the Belgian 
 Provinces, known as the Austrian Low Countries, in 
 favour of the French Republic ; and after this renun- 
 ciation on the part of the Emperor had been further 
 recorded with greater formality in the Treaty of Lune- 
 ville, (9 Feb. 1801 ^^) Kniphausen was constituted an 
 
 ''■' These districts, as forming III. By a subsequent Treaty 
 
 part of the arrondissement (cir- concluded at Paris (Feb. 2, 1861) 
 
 condario) of Nice have since been between the Prince of Monaco 
 
 ceded by the King of Sardinia to and the Emperor of the French, 
 
 the Emperor ofthe French, under the Prince renounced in per- 
 
 the Treaty of Turin (24 March, petuity all his right to the Com- 
 
 1860), whilst the remainder of munes of Mentone and Rooca- 
 
 the Principality of Monaco still bruna. 
 
 continues to be an Independent ^' Martens, Eecueil, YI. p. 
 
 State under the Government of 421. 
 
 the Hereditary Prince Charles '* Ibid. VII. p. 296. 
 
INTERNATIONAL LIFE. 31 
 
 immediate fief of the German Empire by the Decree 
 of the Deputation of the Empire on 25th Feb. 1803. 
 Upon the subsequent dissolution of the Roman Em- 
 pire of the Germans in 1806, which was a necessary- 
 consequence of the Treaty of Presburg, (26 Dec. 
 1 805,) concluded between the Emperor Francis and the 
 Emperor Napoleon I., and which paved the way for 
 the Confederation of the States of the Rhine, (Paris, 
 12 July, 1806,) the Lord of Kniphausen became an 
 independent Sovereign Power. His independence 
 however was of short duration. The Emperor Napo- 
 leon I, occupied the territory of Kniphausen, and sub- 
 sequently transferred it under the Treaty of Tilsit to Treaty of 
 the Emperor of Russia, who ceded it to the Duke of 
 Oldenburg. Upon the restoration of peace in 18 15, 
 when the Sovereign Princes and Free Cities of Ger- 
 many, feudatories in former days of the Germanic 
 Empire, united themselves together on a footing of 
 equality as members of the Germanic Confederation, 
 the Lord of Kniphausen was not admitted into the 
 Confederation, in deference to the objections of the 
 Emperor Alexander of Russia. Negotiations however 
 on the subject of Kniphausen were originated at the 
 Congress of Aix-la-Chapelle in 1818, and led to the 
 conclusion of the Treaty of Berlin 2^ (8 June, 1825,) Treaty of 
 between Count Bentinck of Kniphausen, and DukegjVne, 
 Peter of Oldenburg, under the mediation of Russia, '^'S- 
 Prussia, and Austria. Under this Treaty the Count 
 agreed that the Duke of Oldenburg should exercise 
 over him and his family, as territorial Lords of Knip- 
 hausen, a supremacy analogous to that which had 
 appertaiiied to the Emperor of Germany before the 
 dissolution of the Empire. The Seignory of Knip- 
 hausen, by virtue of this conventional subordination 
 =" Meyer, Staats-Acten des Deutschen Bundes, II. p. 289. 
 
32 INCIDENTS AND MODIFICATIONS OF 
 
 of its Lord to a member of the Germanic Confedera- 
 tion, became appurtenant to the lands of the Confe- 
 deration ; and the Treaty itself was guaranteed by 
 the Germanic Confederation in its character of an 
 European Power (9 June, 1829). The result of these 
 treaty-engagements was twofold. Under the Treaty 
 of Berlin the Duke of Oldenburg was bound to dis- 
 charge towards the Counts of Kniphausen duties of 
 Protection analogous to those which the Emperor of 
 Germany had discharged, whilst the Empire existed, 
 towards his feudatories ; whilst the Germanic Confe- 
 deration was bound under the Federal Act to defend 
 the territory of Kniphausen against foreign . aggres- 
 sion, by virtue of its recognised subordination to a 
 member of the Confederation. The State of Knip- 
 hausen meanwhile retained its own commercial flag, 
 but the Duke of Oldenburg, under the ninth article 
 of the Treaty of Berlin (8 June, 1825), was constituted 
 the ^political representative of the Lord and his sub- 
 jects in their relations with Foreign Powers. Augus- 
 tus, the son and successor of Duke Peter of Oldenburg, 
 assumed the title of Grand Duke on 22nd May, 1829. 
 Having meanwhile acquired possession of the lands 
 of the Counts of Kniphausen, which possession, how- 
 ever, as a matter of right was contested by the Counts 
 Bentinck, he ceded to Prussia by a Convention, 
 signed at Berlin on 20th July, 1853, the Sovereignty 
 over the Bay of the Jahde, together with a border 
 of territory on either side of the Bay, sufficient to 
 form a naval establishment thereon, and the said ter- 
 ritory has been subsequently united to Prussia by 
 Letters Patent of the King of Prussia bearing date 
 5 November, 1857. This Cession of the Bay and the 
 adjoining territory was made, as expressly stated in 
 the Convention, to enable Prussia to form a harbour 
 
INTERNATIONAL LIFE, 33 
 
 • 
 
 for ships of war, and the Jahde has now become the 
 most important military harbour of the German Em- 
 pire on the coast of the North Sea. By Article 5 3 of the 
 German Constitution the harbour of Kiel in Holstein 
 and the harbour of the Jahde are declared to be Im- 
 perial military harbours. It deserves remark that 
 the embouchure of the Jahde was the port of cor- 
 respondence between England and her German allies 
 during the Napoleonic wars, when the ordinary chan- 
 nels of communication by the WeSer and the Elbe 
 were closed against England either by the police of 
 Napoleon I. or by the frost of winter. The depth of 
 water in the Bay of Jahde is so great that it is rarely, 
 if ever, frozen over. The only drawback to it, as a 
 military port, is that there is a teredo in its waters very 
 fatal to wooden ships, of a like kind to that which 
 is the pest of the harbour of Sebastopol in the Crimea. 
 
 629. The United States of the Ionian Islands were, The United 
 on the other hand, an instance of an Independent the Ionian 
 State placed by the provisions of a general treaty ^^^'"^^• 
 under the immediate and exclusive Protection of an- 
 other Independent Power. The Seven Islands had 
 formed a portion of the maritime possessions of the 
 Eepublic of Venice antecedent to 1797, when they 
 passed under the sovereignty of the French Eepublic. 
 They were subsequently occupied by the joint forces 
 of Russia and the Ottoman Porte, and were consti- 
 tuted under the treaty of Constantinople^", (2 1 March, Treaty of 
 1800,) concluded between those two Powers, tribu- „opk*'' 
 taries of the Sultan, as their Suzerain and Protector, f^^"^' 
 in like manner as the Republic of Ragusa had been 
 an Independent State under the protection of the 
 Sultan since the 14th century. The Seven Islands 
 were subsequently recognised as an Independent 
 
 '" Martens, Kecueil, VII. 41. 
 PART 1. D 
 
34 INCIDENTS AND MODIFICATIONS OF 
 
 • 
 
 Treatyof Republic in 1802, under the Treaty of Amiens ^^. 
 Treat^of Under the secret articles of the Treaty of Tilsit, 
 ™^'*- the Emperor of Russia, in contempt of his guaranty 
 towards the Ottoman Porte, transferred the Seven 
 Islands in full sovereignty to France. During the 
 subsequent course of the war Great Britain acquired 
 possession of six of the Islands, but Corfu remained in 
 the hands of the French down to 1814, when it was 
 ceded under the Treaty of Paris to the Four Allied 
 Powers, and was 'consequently resei^ved for their joint 
 disposal, in conformity with the provisions of the 
 Treaty of Pilnitz, as an acquisition made by them in 
 common during the war. Although, therefore, the six 
 smaller Islands were by right of conquest at the abso- 
 lute disposal of Great Britain, Corfu could only be 
 disposed of with the common consent of the Four Al- 
 lied Powers. Great Britain, as it appears from Lord 
 Castlereagh's Memoirs ^2, had contemplated in 18 14 
 that a direct Sovereignty over these Islands should 
 be given to some acknowledged European Power, and 
 preferred either the King of Sicily or the Emperor of 
 Austria. On the other hand, Count Capo d' Istrias, a 
 native of Corfu, who was in the intimate councils of 
 the Emperor Alexander, suggested to that Sovereign 
 that the Islands /^should be recognised as an Inde- 
 pendent State, and be placed under the protection of 
 Great Britain. The Emperor Francis repudiated 
 altogether the notion of a strictly continental Power 
 like Austria embarrassing itself with the charge of 
 insular possessions. Great Britain on the other hand 
 was extremely reluctant to accept the position of a 
 Protecting Power ^^ and at first withdrew the Six 
 
 ^^ Martens, N. E. III. p. 13. '" LordBathurst to Lord Cas- 
 
 '2 Letter of Lord Castlereagh tlereagh, Vol. x. p. 441. 
 to Lord Liverpool, vol. x. p. 224. 
 
INTERNATIONAL LIFE. 35 
 
 Islands, over which she had an absolute right of dis- 
 posal, from the proposed common arrangement. 
 Great Britain at last consented to accept the 
 charge of Protector of all the Seven Islands at the 
 urgent instance of me Emperor Alexander, who 
 stated in Conference with the other Powers, that 
 he had pledged himself that the Islands should nei- 
 ther be incorporated into any other State, nor become 
 the vassals of any Suzerain, but should enjoy a con- 
 stitution Avhich would secure their material indepen- 
 dence ; and as Great Britain could alone satisfy what 
 he considered to be a right of the lonians, it was the 
 duty of Great Britain to accept the government of 
 the Seven Islands. The result was embodied in three Conven- 
 separate Conventions of identical tenor, executed at parig" 
 Paris 3*, (5 Nov. 1 8 1 5,) between Great Britain and her 6g^°^- 
 three allies, Eussia, Austria, and Prussia respect- 
 ively, under which the Seven Islands were declared to 
 form a Single Free and Independent State under the 
 immediate and exclusive protection of the King of 
 Great Britain and Ireland, The trading flag of the 
 United States of the Ionian Islands was acknow- 
 ledged by the contracting parties as the flag of a Free 
 and Independent State, and none but commercial 
 agents or consuls, subject to the regulations, to which 
 commercial agents or consuls are subject in other In- 
 dependent States, were to be accredited to the United 
 Ionian States. All the Powers which signed the 
 Treaty of Paris, (30 May, 18 14,) and the Act of the 
 Congress of Vienna, (9 June, 181 5,) and also the 
 King of the Two Sicilies and the Ottoman Porte, 
 
 ^* The Austrian Treaty is in Eegister for 1815. The Prussian 
 Martens, N. E. II. p. 663, and in Treaty is in the Collection of 
 the British and Foreign State Treaties, (Preussen's Staatsver- 
 Papers, 1815, 1816. The Eus- trage,) published in Berlin, 1852, 
 sian Treaty is in the Annual p. 784. 
 
 D 3 
 
36 INCIBBNTS AND MODIFICATIONS OF 
 
 were to be invited to accede to the Conventions. 
 The King of the Two Sicilies recognised the Protec- 
 torate of the King of Great Britain by the Conven- 
 tion of London ^^ (26 Sept, 1816,) and the Ottoman 
 Porte by a Special Act ^«, (24 jfpril, 18 19,) renounced 
 its sovereignty over the Seven Islands and their 
 dependencies in favour of the King of Great Britain, 
 as the Sovereign Protector of the Islands. 
 NeutraUty ^ 30. The history of the Ionian Islands during the 
 tectedin- war of 1 854-56 between Eussia and the Ottoman 
 statel *°* Porte is illustrative of the practical inconvenience of 
 adopting the epithet " Semi-Sovereign," as repre- 
 senting the International Status of a Conventional 
 Independent State. The connection between the 
 Seven Islands and the United Kingdom of Great 
 Britain and" Ireland was purely persowaZ. The King 
 of Great Britain and Ireland exercised authority 
 over the Ionian States not Jure Coronse, but simply 
 ex Facto ; and the Ionian People were Ionian suh- 
 jects, not subjects of the British Crown. The Ionian 
 States accordingly did not necessarily follow the for- 
 tunes of the Crown of Great Britain and Ireland in 
 war and in peace ; they might remain neutral, like 
 other independent States, whilst the Protecting 
 Power was engaged in hostilities with other Powers, 
 and they did not participate in the advantages of 
 any treaty-engagements entered into by the King of 
 Great Britain and Ireland, unless he had stipulated 
 specially in behalf of Ionian subjects in his character 
 of the Protecting Power of the United Ionian States. 
 At the commencement of the war with Eussia, in 
 which France and Great Britain took part, as the 
 allies of the Porte, the Executive Government of 
 Great Britain, under a misapprehension that the 
 
 " Martens, Traites, N. R. V. p. 116. »« Ibid. p. 387. 
 
INTERNATIONAL LIFE. 37 
 
 Protecting Power of a so-called Semi-Sovereign State 
 had certain paramount rights of Sovereignty over it, 
 refused to recognise the neutrality of Ionian subjects, 
 and a decision of a British Court of the Law of 
 Nations^'' was invoked on behalf of Ionian subjects to 
 ■ clear away the misapprehension. The classification 
 of this order of States under the head of Conventional 
 Independent States, as already suggested, is calcu- 
 lated to prevent misapprehensions of a like nature in 
 other cases by directing attention at once to their 
 special character. Upon the election of Prince George 
 of Denmark to the throne of Greece, Great Britain 
 renounced her Protectorate over the Seven Islands 
 and their dependencies by a Treaty signed at London 
 on 14 November, 1863, to which France was a party 
 in addition to the Three Powers which, with Great 
 Britain, were co-signatories of the Treaty of Paris of 
 Nov. 15, 18 1 5. It was further provided by this 
 treaty that the Seven Islands upon their union with 
 the Kingdom of Greece should enjoy the advantages 
 of a perpetual neutrality, which the High Contract- 
 ing parties engaged themselves to respect. The 
 Union of the Islands to the Kingdom of Greece was 
 subsequently effected with the mutual consent of the 
 Parliament of the Ionian Islands and of the Par- 
 liament of the Kingdom of Greece. 
 
 ^31. Much confusion of thought has arisen from a The Free 
 similar cause respecting the International Status of cr^ow. 
 the City of Cracow and its territory. On the disso- 
 lution of the ancient kingdom of Poland, the City of 
 Cracow and the territory assigned to it was under 
 the Convention of St. Petersburg^* (13 Oct. 1795) Convention 
 evacuated by the Prussian Armies, and united to the tersburg, 
 
 " The Leucade. Admiralty " Martens, Trait^s, R. VI, 
 Prize Casee, 1854-56, p. 217. p- i^i- 
 
38 INCIDENTS AND MODIFICATIONS Oi" 
 
 24 Oct. Austrian Monarchy," from whicli it was again severed 
 Treaty of by Napoleon I, and by the subsequent Treaty of 
 7' 00*' Vienna ^^ ( 1 4 Oct. 1 809) it was attached to the Duchy 
 1809. ' of Warsaw, then belonging to the King of Saxony. 
 This latter Duchy, being a new State created by 
 the Emperor Napoleon I, was in fact a fourth division . 
 of the ancient Kingdom of Poland in favour of a 
 fourth occupant. The issue of the campaign of 181 2 
 placed the Emperor Alexander, in possession of the 
 various portions of territory, which had served by 
 their union to make up the Duchy of Warsaw, and 
 which were subsequently redistributed between Rus- 
 sia, Austria, and Prussia, under two separate treaties, 
 Treaties of concludod bctwcen Russia and the two other Powers 
 sMlyf respectively at Vienna (3 May, 181 5"). An addi- 
 '*'5- tional treaty*! ^f ^j^q game date, concluded between 
 the three Powers, provided that the City of Cracow 
 with its territory should be regarded {sera envisagee) 
 for ever, as a free, independent, and strictly neutral 
 city, under the protection of the three High Con- 
 tracting Powers. The Three Courts under the sixth 
 article engaged themselves to respect, and cause to be 
 respected on all occasions, the neutrality of the Free 
 City of Cracow and its territory. An armed force was 
 not to be introduced into it upon any pretext what- 
 ever at any time. In return, it was understood, and 
 expressly stipulated, that there should not be granted 
 within the Free City or upon the territory of Cracow 
 any asylum or protection to fugitives from justice, or 
 to deserters from the dominions of any of the Three 
 Contracting Powers, but that such persons should be 
 immediately surrendered upon a demand of extradi- 
 tion made by the competent authorities. It was 
 
 '" Martens, Trait^s, N. R. I. *" Ibid. N. R. II. p. 225. 
 p. 211. " Ibid. p. 251. 
 
INTERNATIONAL LIFE. 39 
 
 further provided, that the City of Cracow should not 
 have the right of levying custom duties, but only 
 pontage and road tolls upon the transit of goods and 
 cattle, according to a tariff regulated by the Commis- 
 sioners of the Three Powers. The other Arljcles of 
 the Treaty regulated the political constitution of the 
 Free City, and settled various matters of civil and 
 ecclesiastical administration. A further Treaty be- 
 tween, the Three Allied Powers of the same date 
 completed their mutual engagements in relation to 
 the Duchy of Warsaw and the various territories 
 which had made up the ancient Kingdom of Poland, 
 as it existed in 1772. Under this Treaty, each of the 
 Contracting Parties was to be at liberty to establish 
 Consuls or Commercial Agents in respect to the 
 Duchy of Warsaw, subject to the usual recognition 
 under the Constitution as approved by the Three 
 Powers ; but no similar provision is found in the 
 Treaty relative to Cracow, and the omission of; all 
 provision in regard to Consuls or Commercial Agents 
 is an important peculiarity in that Treaty. 
 
 ^32, The Internal Grovernment of the Free City of its inter- 
 Cracow and its territory was to reside in a Senate "utionT''" 
 consisting of Twelve Senators and a President. The ^g^^"* °^ 
 Legislative Power Iw&s- committed to the Senate and 
 an Assembly of "Representatives, the latter body 
 having the right of controlling the administration by 
 examining the accounts, voting the budget, and im- 
 peaching the public functionaries, if suspected of 
 peculation. The Peace of the City and the; Police of 
 the Eoads was to be maintained by a civic militia. 
 This Constitution was annexed to the Treaty, which 
 placed it formally under the common guaranty of the 
 Three Contracting Powers. It has been a matter of 
 subsequent diplomatic discussion, upon what principle 
 
40 INCIDENTS AND MODIFICATIONS OF 
 
 the European Powers, which took part in the Congress 
 of Vienna, acted in admitting this Treaty between 
 the Three Powers to be inserted in the text of the 
 Principal Principal Act of the Congress. A slight modification 
 Confess of was mgdo in the language of the Article respecting 
 Vienna. ^-^^ Q^^^ q£ 6racow and its territory as inserted in the 
 Principal Act, namely, the City of Cracow is declared 
 (est declaree instead of sera envisages) to be for ever 
 a free and independent and strictly neutral City 
 under the protection of Eussia, Austria, and Prussia. 
 With this exception, the language of the Article in 
 the Triple Treaty and in the Act of the Congress is 
 identical. It is known that the introduction of the 
 provisions of the Triple Treaty into the General Act 
 of the Congress was objected to by Austria, as devoid 
 of political meaning, and as inconsistent with the in- 
 tention of the Protectorate, and that the Emperor 
 Francis reluctantly admitted its insertion in deference 
 to the reiterated instances of the Emperor Alexander. 
 It was subsequently maintained on behalf of the 
 View of Three Courts *^ when their common intention to sup- 
 Courtsas pross the independent existence of Cracow was an- 
 *" I'^J^^'^n^f' nounced to France and Great Britain in 1846, "that 
 
 presBion oi ^ ' 
 
 Cra«ow in they had merely presented to the Congress of Vienna, 
 for registration in the General Instrument termed 
 the Principal Act of the Congress, the Convention 
 which they had concluded with one another, and that 
 the other Powers, who signed the Principal Act of the 
 Congress, or the General -Treaty, did no more than 
 receive that combination, as the result of the direct 
 negociations between the Three Courts, without inter- 
 fering in that territorial arrangement to which they 
 
 " Despatch of Prince Met- 6 Nov. 1846. Martens, N. E. 
 ternich to Count Dietrichstein, Gen. T. X. p. 55. 
 
INTERNATIONAL LIFE. 41 
 
 were strangers." France *^, however, in reply, denied French 
 that the Independent Powers, who signed the Prin- ^'^^' 
 cipal Act, merely registered the decisions and acts of 
 the Three Powers who were Parties to the Triple 
 Treaty, and contended that the foundation of the Ke- 
 public of Cracow was placed in the same rank with 
 the stipulations which formed other States, established 
 Kingdoms, recognised the Free Cities of Germany, 
 created the Germanic Confederation ; and that the 
 virtual insertion of the Triple Treaty textually in the 
 General Act was intended to give to the existence of 
 the Eepublic of Cracow much stronger and more 
 authentic guaranties ; and accordingly that all the 
 Powers, which were Parties to the Treaty of Vienna, 
 had an incontestable right to take part in the deli- 
 berations and decisions, of which the Eepublic of 
 Cracow might be the object. Great Britain**, to the British 
 same effect, asserted, that, with whomsoever might ''^^* 
 have originated the plan of erecting Cracow and its 
 territory into a Free and Independent State, that 
 plan was carried into effect by stipulations, to which 
 all the Powers were equally parties, and consequently 
 it was not competent for three of those Powers by 
 their own separate authority to undo that, which was 
 established by the common engagements of the whole. 
 The Three Powers, on the other hand, conceived them- 
 selves at liberty to modify or annul the Triple Treaty, 
 and to stipulate other conditions by free and reci- 
 procal agreement. They accordingly agreed, that, as 
 the Protected State had violated the obligation of 
 neutrality imposed upon it as a condition of its exist- 
 
 *' Note of M. Guizot ad- " Despatch of Lord Palmer- 
 dressed to Count Flaliaut in reply ston to Lord Ponsonby, 23 Nov. 
 to the Despatch of Prince Met- 1846. Martens, N. E. Gen. T. X. 
 ternich, 4 Dec. 1846. Martens, p. no. 
 N. R. Gen. T. X. p. 118. 
 
42 INCIDENTS AND MODIFICATIONS OF 
 
 ence under the Triple Treaty, they were not merely at 
 liberty, but were bound in self-defence to declare the 
 Triple Treaty to be at an end ; and as the Protected 
 State had destroyed by its own act the work which the 
 Protecting Powers had founded, they were not bound 
 to re-establish it, but might allow the state of Pos- 
 session anterior to 1 809 to revive. The Two Western 
 Powers, on the contrary, protested formally against 
 the suppression of the Bepublic of Cracow, as at vari- 
 ance with the letter as well as with the spirit of the 
 General Treaty of Vienna, and as in their opinion not 
 warranted by any adequate necessity. 
 Craeow §33- It IS not casy to understand in what pecu- 
 
 lonian^ liar circumstances certain distinguished publicists*^ 
 Islands, have discoverfed so wide a distinction between the 
 Free and Independent City of Cracow, under the 
 joint Protectorate of the Three Powers, and the 
 Free and Independent State of the United Ionian 
 Islands under the sole and exclusive Protection of 
 Great Britain, as to declare that the former was to be 
 regarded as a completely Sovereign State, whilst the 
 latter had undergone a material abridgement both in 
 its Internal and External Sovereignty. As far as 
 External Sovereignty was concerned, no European 
 Power could place itself in connection with the State 
 of Cracow, politically represented as it was under 
 the General Treaty of Vienna by the Three Powers, 
 except through the medium of one of the Three 
 Courts : in a similar manner, it was only through 
 one of the Three Courts that the State of Cracow 
 could address itself to Foreign Governments ; and the 
 triple Protectorate was as exclusive in the case of 
 Cracow, as the single Protectorate in the case of the 
 Ionian Islands. If a careful comparison is instituted 
 
 *^ Martens, L. I. o. 1 1 . § 20. Wheaton's Elements, Part I. c. 1 1 . § r3. 
 
INTERNATIONAL LIFE. 43 
 
 between the condition of the United Ionian Islands, 
 and the condition of the Free City of Cracow, it 
 will be seen that the Ionian Islands enjoyed far 
 more of the rights which pertain to an Independent 
 State, than the Free City of Cracow. The latter 
 State was by the Triple Treaty declared not to have 
 the power to levy any custom duties ; whereas the 
 Ionian Parliament had full power to impose custom 
 duties upon imports and exports, as well as to levy 
 other taxes. Cracow had neither a commercial flag 
 by treaty nor commercial agents in foreign countries, 
 whilst the Ionian Nation had both ; and the Lord - 
 High Commissioner, although he was nominated by 
 the Protecting Power, did not exercise his authority 
 according to the behests of the Protecting Power, 
 but according to the Constitutional law of the Ionian 
 States, being in fact not a British, but an Ionian 
 authority. 
 
 § 34. The Eepublic of Poglizza, in Dalmatia, has The extinct 
 been cited by Martens *^ and on his authority by pogj^^j^"/' 
 Wheaton, as an existing instance of a Semi-Sovereign 
 State under the protection of Austria. Poglizza, 
 however, ceased to exist as an Independent State in 
 1807, on the occupation of Dalmatia by the French 
 armies. The origin of this Eepublic, the name of 
 which signified " a small field," dated from a period 
 antecedent to the Ottoman invasion of Europe. It 
 consisted of twelve towns or villages, with a popu- 
 lation of about 4000 souls, and a territory of about 
 forty Italian miles in circumference, the capital of 
 which was Gatta, where the Velisbor, or Great Coun- 
 cil, was held. Their first rights were granted to them 
 by the Kings of Hungary, and the same were subse- 
 quently confirmed to them by the Eepublic of St. 
 " Precis du Droit des Gens, LI. c. 2. § 10. 
 
44 INCIDENTS AND MODIFICATIONS OF 
 
 Mark, to which, they became tributary and furnished 
 mercenary troops, obtaining from the Venetians cer- 
 tain advantages in return. Upon the suppression of 
 the Venetian State by the Emperor Napoleon I, Po- 
 glizza passed under the Protection of Austria, and 
 continued in the enjoyment of its Independence, 
 until it was destroyed amidst the conflicts between 
 the Eussian forces under Siniavin and the French 
 armies under Marmont ". 
 The Ee- §2,5- Audorrc is a small Republic, situated between 
 Andorre. t^e Pyrenees of Arrifege in France and the Pyrenees 
 of Catalonia in Spain. It has been classed by some 
 writers amongst neutral Independent States, but its 
 proper place is amongst protected Independent States. 
 Its independence dates from the reign of the Emperor 
 Louis le Ddbpnnaire, who by a Charter issued in the 
 year 80 r, and still preserved in the Archives of 
 the Eepublic, constituted the People of Andorre an 
 Independent State, with liberty to elect a Count as 
 their Protector. They accordingly chose for their 
 Protectors the neighbouring Counts of Foix. The 
 Emperor Charlemagne had, prior to the Charter of 
 his son Louis le D^bonnaire, granted the tithes of the 
 six parishes, which make up the Eepublic of Andorre, 
 to the See of Urgel in Catalonia, but he had granted 
 at the same time to their inhabitants a distinct mili- 
 tary organization. His grandson, Charles the Bald, 
 disregarding the Charter of Louis le D^bonnaire, 
 issued, in the year 860, a Diploma, whereby the Sove- 
 reignty over Andorre was assigned to the Bishops of 
 Urgel. This wrongful act gave rise to a war between 
 the Bishops of Urgel and the State of Andorre, which 
 lasted for a period of four hundred years, and in 
 
 *' M6moires du Mar6chal Due diner Wilkinson's Dalmatia and 
 de Eaguse, III. p. 49. Sir Gar- Montenegro, II. p. 195. 
 
INTERNATIONAL LIFE. 45 
 
 which the Counts of Foix took part as Protectors of 
 the Eepublic. Hostilities were at length brought to 
 a close by a Treaty, under which the Bishops of 
 Urgel and the Counts of Foix were recognised as 
 joint Suzerains over Andorre. This joint Suzerainty, 
 however, had in course of time become converted into 
 a joint Protectorate, and the Protectorate exercised 
 by the Counts of Foix had devolved to the French 
 branch of the House of Bourbon *^. On the abdica- 
 tion, however, of King Charles X, the last King of 
 France, it was exercised by his successor, Louis 
 Philippe, as King of the French. Since the abdica- 
 tion of the latter Monarch it has been exercised by 
 Napoleon III as Emperor of the -French, and subse- 
 quently by the President of the French Eepublic. 
 The Chief of the French State and the Spanish 
 Bishop of Urgel would thus appear to be joint Pro- 
 tectors of the Eepublic of Andorre under the title of 
 Co-Princi^es. The Val d' Andorre forms part of the 
 frontier between Spain and France. In the civil war, 
 during which Don Carlos disputed the new order of 
 succession to the Crown of Spain, which had been 
 estabhshed by King Ferdinand VII in favour of his 
 daughter, who succeeded to him under the title of 
 Queen Isabella II, Andorre claimed to be indepen- 
 dent and neutral, and concluded a convention of 
 neutrality with the Queen's Government (22 De- 
 cember, 1834*^). Its territory is about thirty miles in 
 length and twenty miles in breadth, divided into 
 six parishes, and the Eepublic is governed by a 
 Domestic Executive, which is annually elected by a 
 General Council consisting of twenty-four Consuls 
 
 *' The family of the Counts of into the House of Bourbon. 
 Foix became absorbed into the *' British and Foreign State 
 
 House of Beam, and the House Papers, vol. xxx. p. 1217. 
 of Beam in its turn was absorbed 
 
nuo. 
 
 46 MODIFICATIONS OP INTERNATIONAL LIFE. 
 
 or Delegates elected by the six parishes. The two 
 Syndics or Presidents are the representatives of the 
 Eepublic in all external matters ^°. The population 
 is estimated at between eight and ten thousand, and 
 an armed force of full fifteen hundred men is always 
 ready to defend the independence of the Country. 
 The Ee- §36. San Marino was an instance of an Independent 
 SauMa- Eepublic Under the Protection of the Holy See, 
 and surrounded, until very recent times, by the do- 
 minions of the Protecting Power. Tradition refers its 
 origin to the fifth century. The extent of its terri- 
 tory and the number of its population are nearly 
 equal to those of the Republic of Andorre, but it has 
 not a like military organization, the armed force of 
 the State consisting of only about eighty men. Its 
 independence was for a short time in the last century 
 suspended by Cardinal Alberoni, but it subsequently 
 recovered its ancient liberties, and the Emperor Na- 
 poleon I. formally recognised its Independence, when 
 he entered the Papal Dominions in 1797. It is 
 governed by a Domestic Executive, consisting of two 
 Capitani Regenti, who are elected for six months by 
 an Executive Coimcil of Twelve, the members of 
 whicb are themselves popularly elected. Since the 
 States of the Church have become an integral por- 
 tion of the Kingdom of Italy, San Marino has passed 
 under the protection of the King of Italy, and by a 
 Convention signed at Turin on 22 March, 1862, its 
 ancient liberty and independence have been recog- 
 nised by the Protecting Power. This International 
 Atom may fitly close the series of protected Inde- 
 pendent States ^\ 
 
 ^^ Historia de la Eepublica ^' This State is styled by 
 
 d' Andorra. Barcelona, 1848. Italian writers, La Kepublichetta. 
 
 The Edinburgh Review, No. Gunther, Europaisches Volker- 
 
 230. recht, Tom. I. c. i. § 19. 
 
CHAPTEE III. 
 
 NATIONAL STATE-SYSTEMS OF CHRISTENDOM. 
 
 Single or United States — Personal Union of Independent States 
 — Eeal Union" of Independent States — Federal Union of Norway 
 and Sweden — Diversity of Federal Unions— The United States of 
 America — The Constitution of 1787 — The Articles of Confederation 
 of 1778 — The Argentine Confederation — A Single State decen- 
 tralized — The Constitution of the Argentine State — The Argentine 
 Provinces — The Swiss Confederation of 1648 — The Helvetic Ctetn- 
 federation of 1815 — The League of Sarnen of 1832 — The Swiss 
 Confederation of 1874 — Analogy between the Swiss Confederation 
 and certain Federal Unions — Origin of the Germanic Confederation 
 — Federal Act of 18 15 — Final Act of 1820 — The Ordinary Assembly ' 
 of the Diet — The Plenum or Full Chapter of the Diet— Permanent 
 Character of the Germanic Confederation — Constitution of the 
 German Empire of 187 1. 
 
 ^ 37. A Nation may be either a single Independent single or 
 State, or an Independent System of States^ united states, 
 together by a federal compact, the conditions of which 
 are susceptible of infinite variations. Thus a System 
 of States may \>q federally united under an hereditary 
 prince, or under an elective President, or under a 
 representative Council, and in each of these cases the 
 National Unity of the System may be as complete as 
 in the case of a single Independent State. It is of 
 importance, however, not to confound a Political Body 
 of States, incorporated together Jure Imperii under 
 a common Sovereign Prince, with a Federal System 
 of States ^ united together Jure Societatis, which has 
 
 ' PuflFendorf, L. VII. c. 5. (ria-Trfna quoddam, ut Strabo non 
 
 § 12. uno loco loquitur, neque tamen 
 
 ^ Sic etiam accidere potest, ut singulse desinant statum perfectee 
 
 plures civitates arctissimo inter Civitatis retinere. Grotius, L. I. 
 
 se foedere colligentur et faciant c. 3. § 7. 
 
48 NATIONAL STATE-SYSTEMS 
 
 been, as such, the subject of International recognition. 
 The internal constitution of a Political Body of States 
 is altogether ignored by the Law of Nations, whereas 
 the internal organization of a Federal System of 
 States is the result of an International Compact ; and 
 whilst the external relations of the former Body 
 towards Foreign Nations are of a normal kind, and 
 are governed by the Common Law of Nations, the 
 external relations of the latter System are of an 
 exceptional character, and are the creatures altogether 
 of Conventional Law. 
 Personal ^ 38. Two or more Independent States may be con- 
 iiSepend- nected together by the link of a common Sovereign 
 ent Stotes. Prjuce Under the Civil Law of the respective States. 
 Such a connection has no International significance, 
 inasmuch as each State retains its separate National 
 * Character. Where such a connection is of an accidental 
 and temporary character, it has been termed by pub- 
 licists a Personal Union ; where it is of a necessary 
 and permanent character, it has been designated a 
 Real Union. This classification, however, is open to 
 objection, seeing that in both cases the person of the 
 Sovereign is the only link which connects the States ; 
 and as there is nothing in the nature of these Unions 
 which implies Keality in an International sense, it 
 would seem preferable to define such Unions in all 
 cases as Personal Unions, and to distinguish them, 
 according to their essential difference, into temporary 
 Great Bri- and permanent Unions*. Thus the connection of the 
 HanovCT. United Kingdom of Great Britain and Ireland with 
 the Kingdom of Hanover by the link of a common 
 
 ' Kliiber, Tom. I. § 27. in a tatis (systema civitatum foedera- 
 
 note upon States united under tarum) (2) vel im2>erii (sub 
 
 the same Sovereign, says, Unio eodem imperante). Hseo est vel 
 
 civitatum, sive perpetua sit, sive personalis vel realis. 
 teni2)oraria, fit jure (i) vel socie- 
 
OF CHRISTENDOM. 49 
 
 Sovereign Prince during the reign of five successive 
 monarohs of the House of Hanover, was a Personal 
 Union of an accidental kind, depending upon the coin- 
 cidence of the two Crowns devolving upon one and the 
 same person under the Civil Law of Succession in 
 either Kingdom ; whilst the connection of the King- 
 dom of Hungary with the Germanic States of the 
 House of Hapsburg-Lorraine, under one and the same 
 Sovereign Prince, is a Personal Union of a permanent 
 character, inasmuch as the Act of Settlement of the 
 Crown of Hungary (anno 1723), by extending the 
 Order of Succession to the female descendants of 
 Rodolph of Hapsburg, has made the Law of Succes- 
 sion in Hungary identical with the Law of Succession Hungary 
 in the Germanic States of the House of Hapsburg- Austrian 
 Ijorraine, so that both Crowns devolve inseparably ^j^™*""" 
 upon one and the same person. But in either case 
 the Personal Union of the two Crowns had no Real 
 International significance. The Hungarian Nation 
 before 1867 did not necessarily follow in peace and 
 war the fortunes of the Germanic States of the House 
 of Hapsburg-Lorraine, and the Emperor of Austria 
 might enter into an international compact, to which 
 he was not a party as King of Hungary. On the 
 other hand, the Union of the Empire of Austria with 
 the Kingdom of Hungary, since the withdrawal of 
 Austria from the Germanic Confederation of States, 
 has more the character of a real Union under the 
 Constitution of 1867, inasmuch as the foreign re- 
 lations of both countries are now directed by one and 
 the same Minister of Foreign Affairs. 
 
 ^ 39. There is another kind of Union of Inde- Real 
 pendent States under one and the same Sovereign in^epeud- 
 Prince, which has an International significance, and ^"' ^'**^^- 
 may deserve, in a Treatise on the Law of Nations, to 
 
 PART I. E 
 
50 NATIONAL STATE-SYSTEMS 
 
 be termed a Beal Union, in contradistinction to the 
 Personal Unions which have just been noticed. Thus, 
 the States which are under the sceptre of the Head 
 of the House of Hapsburg-Lorraine may be divided 
 into Germanic and non-Germanic States. The Ger- 
 manic States of Austria before 1867 formed part of the 
 territory of the Germanic Confederation ; they at the 
 same time formed part of the Austrian Empire, and 
 their twofold National character was the subject of 
 International recognition. In a similar manner the 
 Germanic States of the Head of the House of Hohen- 
 zollern formed part of the territory of the Germanic 
 Confederation, and at the same time formed part of 
 the Prussian Monarchy. The Duchies of Holstein 
 and Lauenburg were, in an analogous manner, on the 
 one hand States of the Germanic Confederation, and 
 on the other hand parts of the Danish Monarchy*. 
 German publicists have accordingly adopted a special 
 term to distinguish in such eases the Whole or Entire 
 Independent State. Thus the Prussian Monarchy, 
 as distinguished from the Germanic and non-Ger- 
 Gesamm- mauic States which compose it, is styled a Gesamm- 
 whoie- staat, or Whole- State. The King of Prussia, for 
 
 state. 
 
 * Great changes, however, have ceded definitively to Prussia all 
 taken place in the international her rights over Holstein. Prussia 
 relations of the Elbe Duchies, has subsequently entered, with 
 The King of Denmark renounced the vote of Holstein, into a new 
 all his rights over the Duchies Confederation which bears the 
 of Holstein and of Lauenburg by name of the German Empire, but 
 the Treaty of Vienna, 30 Oct. the King of Prussia has not 
 1864, in favour of the King of entered into the new Confedera- 
 Prussia and of the Emperor of tion with his non-German do- 
 Austria. By the Treaty of Gas- minions. The Prussian Gesamm- 
 tein, 14 Aug. 1865, Austria ceded staat still exists as distinguished 
 to Prussia all her rights over fromthoseStates of Prussia which 
 the Duchy of Lauenburg, and by are members of the new German 
 a' subsequent treaty signed at Empire. 
 Prague 23 August, 1866, Austria 
 
OF CHRISTENDOM. 51 
 
 instance, may enter into treaty-engagements on behalf 
 of the Gesamtnstaat or entire Prussian Monarchy; 
 or on behalf of the Germanic portion of it, or on 
 behalf of the non-Germanic portion of it. So like- 
 wise the King of Denmark, might formerly have en- 
 tered into treaty-engagements on behalf of the Ge- 
 sammstaat or entire Danish Monarchy, which included 
 the two Germanic Duchies, or on behalf of the Ger- 
 manic Duchies alone, or on behalf of the Danish Pro- 
 vinces alone. These very complicated conditions of 
 International Life were peculiar to certain States 
 which were members of the Germanic Confederation ; 
 the Constitution of which was recognised in the Final 
 Act of the Congress of Vienna. The Kingdom of Hol- 
 land supplied an instance of either kind of Union with 
 a State of that Confederation. There was a Beal 
 Union between the Kingdom of Holland and the 
 Duchy of Limburg, whilst the person of the Sove- 
 reign was the only link which united that Kingdom 
 to the Grand Duchy of Luxemburg ^. Limburg, on 
 the other hand, formed part of the Dutch Monarchy, 
 whilst Luxemburg was as distinct from Holland, as 
 Hanover was from Great Britain during the time 
 when both States were subject to a common Sovereign 
 Prince. 
 
 § 40. The Union of the Kingdom of Norway and Federal 
 the Kingdom of Sweden comes under different con- NOTw'ay 
 siderations of Public Law. The kingdom of Norway *^^ ^'"^' 
 had been politically united with the kingdom of 
 Sweden and with the kingdom of Denmark since the 
 
 " Since the dissolution of the successors, and it does not follow 
 
 Germanic Confederation of 181 5 the fortunes in peace and war of 
 
 the Grand Duchy of Luxemburg any other State. It has also been 
 
 hasbecome a Separate State under declared by an European Act to 
 
 the Sovereignty of the King- form henceforth a perpetually 
 
 Grand Duke, his descendants and neutral State. 
 
 E 2 
 
52 NATIONAL STATE-SYSTEMS 
 
 Union of Calmar (anno 1397 «). That Union was dis- 
 solved de facto in the early part of the sixteenth 
 century, when Gustavus Vasa re-established the poli- 
 tical Independence of Sweden, and founded a separate 
 dynasty (anno 1523). The Independence of Sweden 
 was formally recognised by Denmark at the peace of 
 Stettin (anno 1 570). Norway had meanwhile under- 
 gone a political change, and had become a province 
 of Denmark (anno 1536), when its Senate was sup- 
 pressed, and its Estates ceased to take part in the 
 election of its Kings. Norway and Denmark thence- 
 forth formed a single Independent State for all Inter- 
 national purposes ; the King of Denmark being re- 
 cognised Internationally as King of Denmark and 
 Norway. Such was the condition of Norway until 
 the last year of the War of Liberation, when the 
 
 Treaty of King of Denmark by the Treaty of KieP, (14 Jan. 
 
 Jan.'i8l4. 1814,) to which Great Britain and Russia were also 
 parties, ceded all his rights of Sovereignty over the 
 kingdom of Norway to the King of Sweden, so " that 
 Norway and its Dependencies should be a kingdom 
 united to that of Sweden." This International set- 
 tlement was at first repudiated by the Norwegian 
 people, but it was ultimately carried into effect by. a 
 Convention* concluded at Moss, (14 August, 18 14,) 
 between the King of Sweden and the Norwegian 
 Government. The Constitutional relations between the 
 two kingdoms were subsequently settled by an Act ^ 
 
 ' The monarchy in each king- of the Senators, and the deputies 
 
 dom had been an elective mon- of the three Kingdoms. Koch, 
 
 arcliy, prior to the Union of Tableau des E6voIutions, T. I. 
 
 Calmar. Under the Act of Union p. 274. 
 
 the United monarchy was con- ' Martens, N. E. I. p. 666. 
 sfcituted an elective monarchy, ' Martens, N. K. II. p. 62. 
 and the monarch was to be ' Acte dress6 en commun par la 
 
 elected by the common accord Di6te de Norwfege et la Di6te de 
 
OP CHBISTENDDM. 53 
 
 drawn up ia common by the Diet of Norway and 
 the Diet of Sweden ; by which it was provided that 
 the kingdom of Norway should form a Free and 
 Independent kingdom, united to Sweden under the 
 sceptre of one and the same monarch, each kingdom 
 retaining its own .Civil system, but both kingdoms 
 having one and the same International system. Ac- 
 cordingly the King has full power on behalf of both 
 kingdoms to declare war, make peace, conclude al- 
 liances, and accredit and receive Ministers Plenipo- 
 tentiary, and has in aU matters of war and peace the 
 aid of an extraordinary Council of State, composed of 
 Norwegians and Swedes in common. Meanwhile, 
 each kingdom has its special Commercial Flag, and 
 since 1844 has a special ensign for its military marine, 
 but both such ensigns are acknowledged by Foreign 
 Nations as of identical International import. The 
 Union of Norway and Sweden, if carefully examined, 
 wiU be found to be a Federal Union based upon a 
 compact between the Norwegian and Swedish Nations. 
 It is classed however by Wheaton under the head of 
 personal Unions^ and Sir Robert Phillimore adopts 
 the same order of classification, and cites Norway 
 and Sweden by the side" of Great Britain and Han- 
 over, and by the side of Prussia and Neuchatel, as 
 affording an example of a personal Union. Kliiber, 
 on the other hand, and Heffter and Bluntschli ", class 
 the Union of Norway and Sweden under the head of 
 JReaZ Unions. Kliiber ranks it in the same category 
 with, the Union of Poland and Eussia, which was re- 
 cognised in Art. I. of the Final Act ^^ of the Con- 
 
 Sufede pour fixer les rapports con- "Kliiber, §27. Heffter, §26. 
 
 stitutionnels entre les deuxEoy- Bluntschli, § 75. 
 
 aumes, sign6 k Christiania le 31 " Martens, N. E. torn. II. p. 
 
 Juillet et k Stockholm le 6 Aoiit 383. 
 
 1815. Martens, N. E. II. p. 608. 
 
54 NATIONAL STATE-SYSTEMS 
 
 gress of Vienna, and with the Union of the two Sicilies 
 under the Koyal Proclamation of 12 Dec. 1816 '^ in 
 pursuance of a previous recognition of the Title of 
 Ferdinard IV, as king of the Two Sicilies, in Art. CIV. 
 of the Final Act. The true characteristic of a Per- 
 sonal Union seems to have been pointed out by 
 Grotius, when he says, that upon the extinction of 
 the reigning house the empire reverts separately to 
 each people ". He might have added, that a like 
 separation of the Kingdoms would ensue, if the suc- 
 cession to the respective Crowns should diverge to 
 different members of the reigning House. Such was 
 the result in the instance of Great Britain and Han- 
 over, upon the death of King William IV, when the 
 British Crown, by virtue of British Law, passed to 
 the heir general, and the Hanoverian Crown, by virtue 
 of Hanoverian Law, remained with the heir male of 
 George III. Such a result however cannot arise in 
 the case of Norway and Sweden, as there is an ex- 
 press provision in the Constitutional Act for main- 
 taining the United Monarchy by the election of a 
 new Common Dynasty, if the reigning Prince should 
 at any time be without presumptive heirs, or if the 
 two thrones should become actually vacant. It is 
 apparent, therefore, that the Union of Sweden and 
 Norway is very different from a Personal Union. On 
 the other hand, it is not identical with the Real 
 Union, which exists between the Independent States 
 which compose a Gesammstaat, as Norway has not 
 any International existence apart from Sweden, 
 whereas the Independent States, which compose a 
 
 ^'^ Martens, torn. IV. p. 275. rium ad quemque populum seor- 
 '' Grotius, L. I. c. 3. § 7. 2. sim revertitur. 
 Extincta domo regnatrioe, impe- 
 
OF CHRISTENDOM. 55 
 
 Gesammstaat, enjoy both a separate and a common 
 International existence. 
 
 J 41, The Union of Norway and Sweden is perhaps Diversity 
 almost a solitary instance of a Federal Union under unions.™ 
 an hereditary Sovereign Prince. The United States 
 of America and the Argentine^* Confederation are 
 instances of Federal Unions under an Elective Pre- 
 sident. In the former case, the President is elected 
 for four years, and is immediately re-eligible ; in the 
 latter case, he is elected for six years, and cannot 
 be elected a second time until an intervening period 
 of six years has elapsed. The Helvetic Confedera- 
 tion, on the other hand, under the Constitution of 
 1 8 1 5 ", was an instance of a Federal Union under 
 the direction of a Eepresentative Council ; under 
 its present Constitution, which bears date 29 May, 
 1874, it ranks in the same class with the United 
 States of America, but the President is elected for 
 one year only, and is not re-eligible until after an 
 interval of one year i". Both the Argentine and the 
 Swiss Confederations, although so styled, are strictly 
 speaking Federal Unions equally with the United 
 States of America and the kiQgdoms of Norway and 
 Sweden. The Germanic Confederation of 1815, on 
 the other hand, although it was an Independent 
 System of States under the direction of a Eepre- 
 sentative Council, differed so essentially from all 
 other Systems of identical import in the circumstance 
 that the States of the Confederation enjoyed severally 
 a separate Nationality, notwithstanding that they 
 participated in a common German Nationahty, that 
 it deserves to be classed in a separate category. 
 
 " So called from the Eio de " Constitution F^d^rale pour 
 la Plata, which intersects it. la Confederation Suisse, article 
 
 " Martens, N. E. IV. p. 173. 86. 
 
56 NATIONAL STATE-SYSTEMS 
 
 TheUnited ^ 42. A CoDfederation of four Colonies, under the 
 ^ericl title of the United Colonies of New England, (anno 
 1643,) was the first germ of Union amongst the Bri- 
 tish Settlements in North America. The subsequent 
 war between Great Britain and France led to a more 
 extensive Confederacy, (anno 1754,) which was to 
 embrace all the then existing British Colonies from 
 New Hampshire to Georgia ; but it was at that time 
 supposed that a Federal Union of the Colonies was 
 impracticable. Subsequent disputes with the British 
 government led to a more close association amongst 
 thirteen Colonies, which ultimately declared them- 
 selves to be independent of the Mother Country, and 
 Articles of agreed to certain " Articles of Confederation and per- 
 tion, 15 petual Union" (15 Nov. 1777"). This Confederacy 
 ""'■'^ni- -^ag directed in its external relations by a Congress 
 composed of Delegates from each State, and by the 
 ninth of the Articles, subsequently agreed upon at 
 Philadelphia, on 9th July, 1778", it was provided, 
 that the United States in Congress assembled should 
 have the sole and exclusive right and power of deter- 
 mining on peace and war, except in cases ^^ mentioned 
 in the ninth article ; of sending and receiving ambas- 
 sadors ; of entering into treaties and alliances ; of 
 establishing rules for deciding in all cases what cap- 
 tures on land or water should be legal ; and of ap- 
 pointing Courts for the trial of piracies and felonies 
 committed on the high seas. The Congress was thus 
 charged with executive functions on behalf of all 
 the United States in International matters, and upon 
 
 " The American's Own Book, a State was actually invaded by 
 
 or the Constitutions of ihe seve- enemies, or the danger of inva- 
 
 ral States in the Union, by J. E,. sion was so imminent, as not to 
 
 Bigelow. New York, 1848. admit of delay, until the United 
 
 Ibid. States in Congress assembled 
 
 Cases of emergency, where could be consulted. 
 
 18 
 
OF CHRISTENDOM. 57 
 
 the recognition of the Independence of the Confede- 
 ration by Foreign Powers, the Congress took its place 
 as a National Authority, and was acknowledged to be 
 the representative of the United States of North 
 America in their intercourse with other Nations. 
 
 § 43. The Confederation of 1777 gave place to the Constitu- 
 more perfect Union of 178 7 2°, of which the dis-i^g^^ 
 tinguishing features were the consolidation of the 
 Executive Power in the hands of a President, who 
 was to be chosen by electors appointed by each State, 
 and the erection of one Supreme National Judiciary. 
 The Constitutional Act, agreed to in Congress on 
 28th Sept. 1787, and subsequently ratified by State- 
 Conventions held in each of the thirteen States of 
 the Union, declared that the object of the people of 
 the United States is " to form a more perfect union, 
 establish justice, insure domestic tranquillity, provide 
 for the common defence, promote the general welfare, 
 and secure the blessings of liberty to themselves and 
 their posterity." The Congress of the United States 
 was henceforth to consist of a Senate and a House of 
 Eepresentatives, and it has power to provide, amongst 
 other things, for the common defence and general 
 welfare of the United States ; to regulate commerce 
 with Foreign Nations ; to define and punish piracies 
 and felonies committed on the high seas, and offences 
 against the Law of Nations ; to declare war, grant 
 letters of marque and reprisal, and make rules con- 
 cerning captures on land and water ; to raise and 
 support armies ; to provide and maintain a navy ; to 
 make rules for the government and regulation of the 
 land and naval forces ; to provide for calling forth the 
 militia to execute the Laws of the Union ; to suppress 
 insurrections and repel invasions. The President, on 
 
 '" Marteni3, Kecueil, T. iv. p. 2 88. The American's Own Book, p. 9. 
 
58 NATIONAL STATE-SYSTEMS 
 
 the other hand, is the organ of the Union in its inter- 
 course with Foreign Powers. He has authority to 
 make treaties and to appoint Ambassadors and Con- 
 suls ; and although he is bound on such occasions to 
 take the advice and obtain the consent of the Senate, 
 this is a regulation of domestic policy, with which 
 Foreign Nations are not concerned, as they can only 
 communicate with the President. No State of the 
 Union can enter iato any treaty, alliance, or con- 
 federation, nor can any State without the consent of 
 the Congress lay any duty on tonnage, keep troops 
 or ships of war in time of peace, enter into any 
 agreement or compact with another State of the 
 Union or with a Foreign Power, or engage in war 
 unless actually invaded, or in such imminent danger 
 as will not admit of delay. 
 Articles of § 44. It had been provided, by the Second of the 
 tiono/™" Articles of Confederation of 1778, that each State 
 1778- yfos to retain its Sovereignty, Freedom, and Inde- 
 pendence, and every power, jurisdiction, and right 
 which was not expressly delegated to the United States 
 in Congress assembled. With regard to the Sove- 
 reignty of each State, it is not withia the scope of a 
 treatise on the Law of Nations to examine in what 
 respects and to what extent that Sovereignty has been 
 controlled or modified by the subsequent Constitution 
 of 1 787 ; but with regard to the Independence of the 
 several States it may be observed, that the exercise of 
 all those functions which characterise an Independent 
 State, has been delegated by the respective States to 
 the Federal Government, and the National character 
 of each State is so far merged in the National cha- 
 racter of the Union. Hence the Federal Government 
 alone maintains international relations with Foreign 
 Powers, and the Federal Union alone can acquire 
 
OF CHRISTENDOM. 59 
 
 territory either by occupation or by cession, there 
 being an express provision in the Constitution of 
 the Union that new States may be admitted by 
 Congress into the Union. The Federal Government 
 has power to form and erect into a New State any 
 territory, which the Federal Union may acquire. 
 Thus Louisiana was ceded by France to the United Cession of 
 States under the Treaty of 1803, and the Floridas a„°d ofThe 
 were similarly ceded by Spain in 1 809 ; and the ^°^^^- 
 ceded territory in each case was formed into a new 
 State, and admitted in that character into the 
 Union. On the other hand, where an Independent 
 State has joined the Union, a treaty has not been 
 required as a condition precedent to its admission 
 into the Union. Thus Texas had been recognised as 
 an Independent State by the United States, as well 
 as by other Foreign Powers, antecedently to 1844. 
 In that year a Treaty, previously negotiated between 
 Texas and the United States for the admission of 
 Texas into the Union, did not receive the ratification 
 of the American Senate, and it accordingly remained 
 inoperative ^^. The Congress, however, resolved that 
 the territory of Texas might be erected into a State 
 with a Republican Form of Government, and there- 
 upon be admitted as a new State into the Union, 
 in accordance with the Third Section of the Fourth 
 Article of the Constitution ^^. 
 
 § 45. The Spanish Provinces on the banks of the The Ar- 
 Eio de la Plata, in South America, had previously to confedera- 
 their separation from the Mother Country been under *'°"- 
 the Government of a Colonial Viceroy. Upon the 
 
 ^^ Wheaton's Elements, Sixth New States into the Union as it 
 
 Edition, p. 78. may think proper, in whatever 
 
 ^^ Under this article the Con- manner the territory comprising 
 
 gress has power only limited by those New States may have been 
 
 its discretion to admit as many acquired. 
 
60 NATIONAL STATE-SYSTEMS 
 
 successful issue of the Insurrection against Spain and 
 the Proclamation of the Sovereignty of the Argentine 
 People, the revolted Provinces constituted themselves 
 a Eepublic, under the title of the Argentine Confede- 
 ration. Discord and civil war subsequently broke 
 out between Buenos Ayres and the other Provinces, 
 and, after a contest of fourteen years' duration, a 
 Federal Constitution was drawn up in May, 1853, 
 to which thirteen of the Provinces adhered, whilst 
 Buenos Ayres preferred to stand aloof, and to frame 
 for herself a Constitution, as a separate State ^\ The 
 existing Argentine Confederation, therefore, may be 
 said to date from the year 1853, when the Repre- 
 sentatives of the People of the Confederation, as- 
 sembled in General Congress, decreed and established 
 a Constitution, as recited in the Preamble, with a 
 view to constitute a National Union amongst them- 
 selves, to consolidate internal peace, to provide for 
 the common defence, and to secure the liberty of all 
 the inhabitants of the Argentine Soil. The thirteen 
 Provinces, which composed at such time the Argen- 
 tine State, are Cordova, Catamarca, Corrientes, Entre- 
 Eios, Jujuy Mendoza, Bioja, Salta, Santiago, San 
 Juan, Santa F^, San Luis, and Tucuman. 
 The Ar- ^ 46. The Argentine Confederation has many fea- 
 Confedera- turcs in commou with the United States of North 
 gie'statr" America ; but it has remarkable features of difference, 
 decentrai- which are attributable to the fact, that the starting 
 point of the Argentine Confederation was diametri- 
 cally opposite to that of the United States of North 
 America, the former Confederation resulting from the 
 
 '^ ByaTreaty signed Nov. 10, in the Constitution of 1853 foJ" 
 
 1859, Buenos Ayres declared her- the admission of Buenos Ayres, 
 
 self to be once more an integral since which event the internal 
 
 part of the Argentine Confedera- constitution of the Confederation 
 
 tion. Provision had been made has been slightly reformed in 18 60. 
 
OF CHRISTENDOM. 61 
 
 DecentralisatioA of a Single State ^*, whilst the latter 
 arose out of the Union of several States, which had 
 been and might have continued to exist singly as 
 Independent States. The Argentine Constitution of 
 1853, accordingly, in regard to the external relations 
 of the Confederation, has only confirmed the original 
 Unity of the Argentine State, at the same time that 
 it has altogether decentralised its Internal Govern- 
 ment, and has resolved it into a system of Con- 
 federate Provinces, which severally possess all the 
 powers of Sovereignty, which are not delegated by 
 the Constitution to the Federal Government ^''. The 
 National Unity, however, of the System, as regards 
 Foreign Powers, is not thereby impaired, and the 
 latter consequently can, under no pretext whatever, 
 entertain direct International Eelations with the 
 Provinces without assailing the Nationality of the 
 Arg'entine State and violating the Independence of 
 the Argentine Nation ^^ 
 
 §47. The Executive Power of the Argentine Na-TheCon- 
 tion is vested in a President, who is entitled " The the'A^g"n- 
 President of the Argentine Confederation," and the ''°® ^**''^- 
 direction of the International Relations of the Confe- 
 deration are vested in him conjointly with the Senate. 
 He declares war and peace, nominates and recalls Am- 
 bassadors and Consuls, concludes and signs all treaties 
 
 '* We find accordingly that La Constitution de la ConKdera- 
 
 the Argentine Confederation is tion Argentine. Bruxelles, 1856. 
 composed of Provinces and not of ^^ Article 10 1. Les Provinces 
 
 States, and that the object of the conservent tout le pouvoir non 
 
 Confederation is declared to be, d616gu6 par cette constitution au 
 
 amongst other things, to pro- gouvernement f^d^ral. 
 vide for tfie common defence, and ^° The Provinces may conclude 
 
 maintain the liberty of all persons mutual Conventions with one an- 
 
 who may be disposed to inhabit otheruponmattersofPolice,Pub- 
 
 the Argentine soil, la libertlpour lie Works, and the Administration 
 
 tons les hommes du monde qui of Justice, subject- to the sanction 
 
 voudraient hahiter le sol A rgentin. of the Federal Cbngress. 
 
62 NATIONAL STATE-SYSTEMS 
 
 of peace, commerce, navigation, alliance, boundaries 
 and neutrality, all Concordats and other Treaties 
 which may be necessary to maintain friendly rela- 
 tions with Foreign Powers, whose Ministers he re- 
 ceives, and to whose Consuls he grants the Exequa- 
 tur. The President exercises these latter functions 
 subject to the approval of a Congress, which con- 
 sists of two Chambers, one composed of " Deputies 
 of the Nation," and the other of " Senators of the 
 Provinces and of the Capital." The Chamber of 
 Deputies consists of Representatives directly elected 
 by the People of the Provinces and of the Capital, 
 considered for this purpose as electoral districts of a 
 single State, in the proportion of one deputy for 
 every 20,000 inhabitants. Each deputy may sit for 
 four years, and he is then re-eligible, but half the 
 members of the Chamber are renewed every two 
 years. The Senate is composed of two Senators 
 from each Province and two from the Capital ; each 
 Senator may sit for nine years, and is immediately 
 re-eligible, but a third of the Senate is renewed every 
 three years. The approval of the Congress, which 
 is required by the Constitution to give perfect va- 
 lidity to the acts of the President, is an arraiigement 
 of domestic policy, analogous to the arrangements 
 under which the approval of the British Parliament 
 is required by the Constitution to erfable the Crown 
 to give effect to treaties of commerce concluded with 
 Foreign Powers. 
 The Ar- § 48- The Provinces which compose the Argentine 
 ProWs. ^*^*® ^^® expressly prohibited by the Constitution 
 from exercising any of the powers which are dele- 
 gated to the Confederation. They may not conclude 
 any treaties of a political character, or pass any laws 
 • affecting commerce or navigation, or establish any 
 
OF CHRISTENDOM. 63 
 
 Custom Houses, or levy any troops, or arm any ships 
 of war, except on occasions of sudden invasion when 
 delay is inadmissible, and in which case they must 
 make an immediate report to the Federal Govern- 
 ment ; nor may they nominate abroad, or receive at 
 home, Foreign Agents. The Provincial Institutions 
 are cast in a Kepublican mould, and each Province 
 elects its own Governor, but the Grovernors of the 
 Provinces upon their election become not merely local 
 Functionaries, but are the constituted Agents of the 
 Federal Government in enforcing the Laws of the 
 Confederation. No Province is allowed by the Con- 
 stitution to declare or make war upon another Pro- 
 vince, and a Supreme Court of Justice, modelled after 
 that of the North American Union, has authority to 
 hear and redress all matters and complaints between 
 Province and Province. 
 
 § 49. The Swiss Confederation, in the earliest form The Swiss 
 in which its Independence was recognised by a Public tion o/™" 
 Act of the European Powers (anno 1 648), consisted of '^'*^* 
 thirteen Cantons, Claris, Schwytz, Uri, Zug, Unter- 
 wald, and AppenzeU, the political Constitutions of 
 which were democratic, and B^le, Fribourg, Berne, 
 Lucerne, Zurich, Schaffihausen and Soleure, which had 
 Constitutions more or less aristocratic. The Confe- 
 deration underw'ent various vicissitudes during the 
 wars of the French Ke volution of 1 789, and six other 
 Cantons, some of them being districts which had 
 separated from existing Cantons, were received into 
 the Confederation, namely, St. GaU, Grisons, Argovie, 
 Thurgovie, Tessin and Vaud. In 1803, Napoleon, 
 then First Consul, imposed upon the Confederation, 
 in the character of Mediator between the partisans of 
 a Central State and those of a Federal State, a new 
 Constitution, under the title of an "Act of Mediation," 
 
64 NATIONAL STATE-SYSTEMS 
 
 which intrusted the interests of the Confederation 
 to a Federal Diet, which was to meet at Fribourg, 
 Berne, Soleure, Bale, Zurich or Lucerne, year by year, 
 and in each year the Burgomaster of the directing 
 Canton was to be the Landammann of Switzerland, 
 charged with the Presidence of the Diet and with aU 
 communications with Foreign Powers. The Act of 
 Mediation was superseded in 1814 by an alliance of a 
 Federal Character between the nineteen Cantons ", 
 and in the following year three new Cantons, Neu- 
 chatel, Geneva, and Valais, were admitted into the 
 Confederation, so that the new Act of Confederation, 
 concluded 7th August, 181 5, embraced twenty-two 
 Cantons ^^ It was this new Confederation, which ac- 
 ceded formally to the territorial arrangements of the 
 Congress of Vienna on 1 2 August, 1 8 1 5 ; and, in con- 
 sideration of its accession, the perpetual neutrality of 
 Switzerland and the inviolability of its soil were 
 recognised and guaranteed by the Powers, which 
 signed the Final Act of the Congress. 
 TheHei- § 50. The Helvetic Confederation of 1815 was an 
 federa'ti'on" Uniou of a closcr kind than the early Federal Pact, 
 of 1815. which had preceded the Constitution under the Act 
 of Mediation. Its object was declared to be the pre- 
 servation of the freedom, independence and security 
 against foreign assault, and of the domestic order and 
 tranquillity of the twenty-two Cantons. The Cantons 
 guaranteed reciprocally to one another their respective 
 political Constitutions and their territorial Possessions. 
 The Confederation had a common army, composed of 
 contingents of men from each Canton, and a common 
 military chest, suppHed by duties levied on the impor- 
 tation of foreign merchandise, and . collected by the 
 frontier Cantons. The Diet consisted of one deputy 
 "' Martens, N. R. II. p. 68r ^' Martens, N. E. IV. p. 173. 
 
OF CHRISTENDOM. 65 
 
 from each Canton voting according to instructions, 
 and it assembled at Berne, Zurich, or Lucerne alter- 
 nately. The direction of the affairs of the Confede- 
 ration, when the Diet was not in session, was con- 
 fided to the Canton in which it ought to assemble, 
 and the duties of Directing Canton (Vorort) accord- The Vor- 
 ingly devolved every alternate two years upon the "^^^g^'" 
 Protestant Canton of Zurich and the Eoman Ca-*^*°*™- 
 tholic Cantons of Berne and Lucerne. All the func- 
 tions which had belonged to the Directing Author- 
 ity of the Confederation before 1798, were, under 
 the new Constitution, continued to the Directing 
 Canton. The Diet had the prerogative of declaring 
 war and concluding treaties of peace, alliance, and 
 commerce with Foreign States. It provided for 
 the internal and external security of the Confedera- 
 tion, directed the operations and appointed the Com- 
 manders of the Federal Army, and nominated the 
 Ministers accredited to Foreign Powers. In case of 
 internal or external danger, each Canton had the 
 right of demanding the aid of the other Cantons, in 
 which case notice was to be given immediately to the 
 Directing Canton, in order that the Diet might be 
 called together to provide the necessary measures of 
 security. Under the Federal Compact prior to 1 798, 
 the Cantons might make separate treaties with one 
 another or with Foreign Powers. Under the Confe- 
 deration of 18 1 5, the individual Cantons were pre- 
 cluded from concluding any alliance which might be 
 prejudicial (nachtheilige) to the General Confedera- 
 tion, or to the right of the other Cantons. 
 
 § 5 1. The French Revolution of 1830 led to various The 
 changes in the Internal Constitutions of the different s^men! °^ 
 Cantons, and a plan for the revision of the Federal 
 Pact of 181 5 was drawn up by a Committee of the 
 
 PAKT I. F 
 
66 NATIONAL STATE-SYSTEMS 
 
 Diet in 1832. The object of the revision was mainly 
 to assign to the Federal Authorities more of the 
 attributes of a Central Government than they had 
 hitherto possessed ; but the scheme was vigorously 
 opposed by Seven Cantons, namely, Schwytz, Uri, 
 Unterwald, BMe, Tessin, Neuchatel and Yalais. These 
 Cantons united themselves together in a separate 
 Confederation, called the League of Sarnen. The 
 Diet of 1833 took the necessary measures for dis- 
 solving the League of Sarnen, and for compelling the 
 seceding Cantons to send Deputies to the National 
 Diet. The question of the revision of the Federal 
 Pact was renewed in 1834, but unsuccessfully. In 
 1 846 a separate armed League of the Seven Catholic 
 The Son- Cantons was formed, under the title of Sonderhund, 
 which was in fact an armed Confederation within the 
 Confederation. This association being at variance 
 with the Sixth Article of the Federal Pact, it was 
 resolved by the Diet that it should be put down by 
 force of arms, which was accoi'dingly effected. The 
 eventful political changes, which convulsed Europe 
 in 1848, contributed to bring about a change in that 
 year in the Constitution of the Confederation, whereby 
 it more nearly approximates at present to the model 
 of the Federal Union of the North American States. 
 The Swiss ^52. The existing Constitution of the Swiss Con- 
 tion of ^"^"^ federation was voted by the Diet, on 29th May, 
 1848. 1.874. The Confederation consists, as under the set- 
 tlement of 18 1 5, of twenty-two Cantons ; but of these 
 B^le is divided into Bdle-town and BMe-country; 
 Unterwalden into Upper and Lower Unterwalden ; 
 and Appenzell into Outer and Inner Ehodes. The 
 object of the Confederation is declared to be to secure 
 the Independence of the Country (la patrie) against 
 foreign assault, to maintain tranquillity and order in 
 
OF CHRISTENDOM. 67 
 
 the Interior ; to protect the liberty and rights of the 
 Confederates ; and to promote their common pros- 
 perity. The Cantons are respectively Sovereign in 
 all matters in which their Sovereignty has not been 
 limited by the Federal Constitution. The Cantons 
 are forbidden to enter into any private alliance or any 
 treaty of a political character with one another, but 
 they may conclude with one another Conventions 
 upon matters of Legislation, Administration, and Jus- 
 tice, subject to the approval of the Federal Authority. 
 The Confederation alone has the right of declaring 
 war and concluding peace, as well as of making 
 alliances and treaties with Foreign Powers, and more 
 especially treaties of commerce, and of regulating the 
 custom-duties on foreign imports. The Cantons retain 
 the right of concluding with Foreign States conven- 
 tions on matters of Public Economy and relations of 
 Neighbourhood and Police ; but these conventions 
 must contain nothing prejudicial to the Confederation, 
 or to the rights of the Cantons, and aU official relations 
 between the Cantons and Foreign Grovernments are 
 carried on through the medium of the Federal Council, 
 saving always to the Cantons the right of correspond- 
 ing with the authorities of a Foreign State on matters 
 within the scope of their Cantonal Conventions. The 
 Confederation determines the conditions under which 
 strangers may obtain Swiss naturalisation, and under 
 which Swiss citizens may renounce their Swiss national 
 character. The Confederation is also empowered to 
 expel from its territory strangers who compromise 
 either the Internal or the External security of Switzer- 
 land. The Federal Authorities consist of a Federal The Fede- 
 Council and a Federal Assembly ; the latter consist- tiy. *"'" 
 ing of two Sections or Councils, a National Council, 
 and a Council of States. The National Council is 
 
 F a 
 
68 NATIONAL STATE-SYSTEMS 
 
 composed of Deputies of the Swiss People, in the 
 proportion of one Deputy for every 20,000 citizens, 
 and every natural-born Swiss of the age of twenty 
 years complete, unless under some legal disability, has 
 a right to vote for members of the National Council ; 
 and, if a layman, is eligible as a Deputy. The National 
 Council is elected for three years, and the whole body 
 is renewable at each election. The Council of States, 
 on the other hand, is composed of forty-four Deputies 
 of Cantons, two Deputies being nominated by each 
 Canton ; and in the case of the divided Cantons, one 
 Deputy is nominated by each Half-Canton. Each 
 Council chooses for each Session a President and a 
 Vice-President from its own body. These officers are 
 not re-eligible until a session has intervened. One of 
 the most important functions of the Federal Assembly 
 is to select the Federal CouncU, which is the Supreme 
 Executive body, and the directing authority of the 
 Confederation. For this purpose the National Council 
 and the CouncU of States meet in one body, and elect 
 seven persons, who must be Swiss Citizens, qualified 
 to be members of the National Council, and who upon 
 The rede- their election become members of the Federal Council 
 cii. for three years, and during such time are precluded 
 
 from any other employment. The Federal Council 
 must be renewed entirely upon each renewal of the 
 National Council. The President of the Federal 
 Council is the President of the Confederation, and he 
 is selected, as well as the Vice-President of the Federal 
 Counciljfrom amongstthe seven members of theFederal 
 Council by the Federal Assembly. The President of 
 the Confederation holds office for one year, and is not 
 re-eligible. Four members must be present to enable 
 the Federal Council to deliberate. The Federal Coun- 
 cil nominates to Foreign Missions, examines all treaties 
 
OP CHRISTENDOM. 69 
 
 concluded either amongst the Cantons or with Foreign 
 States, and approves them, if it thinks fit. • It watches 
 over the interests of the Confederation abroad, and 
 more particularly over its International relations; 
 and is in general charged with the superintendence 
 of the external relations of the Confederation, and 
 ■with the maintenance of its Independence and its 
 Neutrality. * 
 
 J 53. It will be seen that the existing Constitution Analogy 
 of the Swiss Confederation bears a very close resem- the^wfes 
 blance to the Federal Union of the North American Confede"- 
 
 _ _ tion and 
 
 States, and to the Federal Union of the Argentine certain 
 Provinces. Each of these Confederations is for aU unions. 
 International purposes a single Independent State. 
 Each of them is only known to Foreign Powers 
 through the medium of the Supreme Federal Govern- 
 ment, which for all external purposes represents the 
 Nationality of the entire Federal Body. A Federation 
 of this kind is essentially a very difierent body from 
 what is ordinarily understood by a Confederation of 
 States, Hefiter^^ accordingly, and other German 
 Jurists, have employed the term Bundesstaat, orBundes- 
 Federal State, to denote an Union of States, which Federative 
 is formed on a basis of equal rights, and rests upon ^'*'^- 
 a compact of Public Law (foedus), under which the 
 individual States are merged for all International 
 purposes in the Union. The term Confederation of 
 States (Staaten-Bund), according to these writers, is staaten- 
 properly applicable to an association of Independent confe'dera- 
 States, each member whereof severally retains its 
 own Nationality, whilst it participates at the same 
 time in the common Nationality of the Confederation. 
 The Germanic Confederation was an association of 
 this latter character. It was composed of Inde- 
 2» Heffter, § zo. 
 
 tion of 
 States. 
 
70 NATIONAL STATE-SYSTEMS 
 
 pendent States, which had substituted for their 
 ordinary rights and duties in relation to one another 
 under the Law of Nations special rights and duties 
 under the Articles of Confederation. They at the 
 same time severally retained, in regard to non-Ger- 
 manic Powers, all their rights and duties under the 
 Law of Nations ; whilst they had collectively acquired 
 in relation to those Powers special rights and duties, 
 as a Community of States, by virtue of the Inter- 
 national recognition of the Articles of Confederation. 
 Thus the Germanic Confederation was acknowledged 
 by the representatives of the European Powers, at the 
 Congress of Vienna, to have the right in its Collective 
 capacity of making war and peace, of sending and 
 receiving Embassies, and of forming alliances and 
 treaties within the scope of its institution ; which was 
 declared by the Articles of Confederation to be the 
 maintenance of the Independence of the individual 
 States, and the inviolability of their territory. The 
 Confederation was in fact an association in the nature 
 of a permanent League of Independent States, differ- 
 ing so far from an ordinary League, that it was clothed 
 with a common National character for certain pur- 
 poses, and its Eight of common action within a certain 
 sphere of International rights and obligations formed 
 part of the Conventional Law of Europe. 
 Origin of ^54. The origin of so anomalous a body as the 
 man?oc'on- Germanic Confederation was traceable to a political 
 federation, necossity. In consequence of the creation of the Con- 
 federation of the Ehine under the protection of the 
 Emperor Napoleon, and the subsequent abdication of 
 the Crown of the Eoman Empire of the Germans by 
 the Emperor Francis^" (August 6, 1806), not only the 
 substance but the name of a Germanic Political Body 
 '" Martens, Kecueil, T. viii. p. 407. 
 
OF CHRISTENDOM. 71 
 
 had disappeared. It became, however, necessary after 
 the successful conclusion of the War of Liberation, 
 to create another Germanic Political Body, partly to 
 satisfy the deep-seated feeling of Nationality amongst 
 the people of the Germanic States ; partly to fill up 
 the void which the disappearance of the Germanic 
 Empire had caused in the centre of the European 
 Political System. It was impossible to revive the 
 ancient Empire without the sacrifice of the Sovereign 
 rights, which the former Vassals of the Emperor and 
 the Empire had enjoyed since the Dissolution of the 
 Empire in 1806, and it was neither reasonable to de- 
 mand nor practicable to enforce such a sacrifice. The 
 Emperor Francis accordingly repudiated the advice of 
 those who urged him to resume, as a matter of course, 
 the Crown of the Eoman Empire of the Germanic 
 Nation. Others spoke in favour of a new Germanic 
 Empire to be fashioned according to the requirements 
 of the times. The majority of the German Princes, 
 who had been admitted to the fuU enjoyment of 
 Sovereign rights, were in favour of a simple political 
 alliance amongst all the Sovereign Germanic States. 
 The Emperor Francis rejected the idea of a new Ger- 
 manic Empire, as it would have had the support only 
 of political enthusiasts, and would have been opposed 
 by the German Princes and the loyal portion of their 
 subjects. On the other hand, a mere alliance between 
 the Sovereign States of Germany did not offer in the 
 opinion of the Imperial Cabinet sufficient guarantees 
 for maintaining the tranquillity of Germany, and might 
 even have proved to be a measure in its results an- 
 tagonistic to that object. The Emperor Francis 
 accordingly insisted on a Confederation of States, 
 which would be compatible with the independence of 
 the Sovereign Princes and States of Germany, and 
 
72 NATIONAL STATE-SYSTEMS 
 
 would at the same time secure the integrity of the 
 Germanic territory. The acquiescence of Kussia, 
 Prussia, and Great Britain in this scheme was made 
 a conditio sine qud non of Austria's accession to the 
 Quadruple Alliance in 1813. The Sixth Article of 
 the Treaty of Peace concluded at Paris between the 
 Four Allied Powers and France (30 May, 18 14) put 
 the seal to the settlement of the previous year. " Les 
 Etats de TAUemagne seront ind6pendans et unis par 
 un lien feddratif^^" The Sovereign Princes and Free 
 Cities of Germany in accordance with this stipulation 
 empowered their Eepresentatives to draw up certain 
 Articles in the form of an Act of Federation, which 
 was subsequently embodied in the Principal Act of 
 the Congress of Vienna, and thus the German Federal 
 Act became a recognised part of the Public Conven- 
 tional law of Europe. 
 TheFe- § 55- There was a provision in the Federal Act, 
 
 of 1 815. that the Diet should draw up as soon as possible a 
 body of Fundamental Laws for the Confederation, 
 and should settle its Organic institutions in regard to 
 its external, military, and internal relations. A series 
 of Ministerial Conferences accordingly took place at 
 Vienna for the purpose of completing and consolidat- 
 ing the Organization of the Confederation, and the 
 result of these Conferences was embodied in a Final 
 Act (Schluss-Act), which received the signature of 
 the Representatives of all the Sovereign Princes 
 and Free Cities of Germany at Vienna (15 May, 
 1820), and which was subsequently approved by the 
 Diet at Frankfort (8 June, 1850), and by an unani- 
 mous Eesolution converted into a Fundamental Law 
 of the Confederation, having the same force and 
 validity as the Federal Act itself. It was therefore 
 =1 Martens, N. R. II. p. 6. 
 
OF CHRISTENDOM. 73 
 
 in the Final Act^^ ^-j^^i j^-j^q Constitution of the Ger- 
 manic Confederation was developed and completed in 
 its various details, pursuant to the Provisions of 
 Article X of the Federal Act, which was textually 
 inserted as Article LXII in the Principal Act^^ of the 
 Congress of Vienna. 
 
 The Federal Act defined the object of the Con- 
 federation in Article II to be the maintenance of the 
 external and internal security of Germany, and of the 
 independence and inviolability of the Confederated 
 States. The States of the Confederation bound them- 
 selves by Article XI to defend not only Germany in 
 its entirety, but also each 'Individual State of the 
 Union in case it should be attacked, and they mutu- 
 ally guaranteed to one another all such their posses- 
 sions as were comprised within the Union. When war 
 was declared by the Confederation, no member could 
 carry on private negotiation with the enemy, nor 
 make a peace or an armistice without the consent of 
 the others. The Members of the Confederation, in 
 reserving to themselves the right of forming alhances, 
 obliged themselves not to contract any engagement, 
 which should be prejudicial to the security of the Con- 
 federation or of the Individual States which composed 
 it. The Confederate States undertook not to make war 
 against one another on any pretext whatever, but to 
 refer aU their disputes to the Diet for its Mediation. 
 
 ^56. The Final Act, which consisted of Sixty-five Knai Act 
 Articles, developed more fuUy and explicitly the Fun- ° 
 damental Dispositions of the Federal Act in regard 
 to the external relations of the Confederation in Sis- 
 teen Articles, consecutively from the Thirty-fifth to 
 the Fiftieth inclusively. It was declared in Article 
 XXXV, that the Confederation had the right, as a 
 «2 Martens, N. E. V. p. 466. " Ibid. N. K. II. p. 409. 
 
74 NATIONAL STATE-SYSTEMS 
 
 Collective Power, to declare war, make peace, and 
 contract alliances and negotiate treaties with due re- 
 gard to the objects of its Institution, as announced in 
 Artide L of the Federal Act, namely, its own de- 
 fence, the maintenance of the inviolability and ex- 
 ternal security of Germany, and of the independence 
 ^nd inviolability of each of the States of the Confede- 
 ration. Article XXXVI declared that any damage 
 caused to any Confederate State by a Foreign Power 
 was a damage to the whole Confederation by virtue 
 of the reciprocal guaranty of the integrity of their 
 possessions, and on the other hand, the Confederated 
 States undertook to refrain from giving any provoca- 
 tion to Foreign Powers. In case a Foreign Power 
 should make complaint against a State, the Diet 
 was empowered to require the State, if it was in 
 the wrong, to make redress to the Foreign Power. 
 Article XXXVII provided, that the Diet might ex- 
 amine into the origin of any differences which might 
 arise between any State of the Confederation and a 
 Foreign Power, and either refuse its aid if the State 
 was in the wrong, or if the State was in the right, 
 employ its good offices in its behalf Article XXXVIII 
 provided, that if there was reason to apprehend danger 
 to any State of the Confederation, or to the whole body, 
 the Diet should immediately adopt the necessary mea- 
 sures of defence. Article XXXIX provided, that if the 
 Territory of any State of the Confederation was invaded, 
 the fact of such invasion constituted a state of war for 
 the whole Confederation, and the necessary measures 
 of defence had to be at once adopted. Article XL pro- 
 vided, that if it should be necessary for the Confedera- 
 tion to make a formal Declaration of war, the General 
 Assembly on its behalf should make such Declaration, 
 if a majority of two-thirds so decided. By Article XLT, 
 
OF CHRISTENDOM. 75 
 
 a Resolution of the Diet, that there was real danger 
 of an hostUe attack, or a formal Declaration of War 
 on the part of the General Assembly, constituted all 
 the Confederated States active parties in the war. 
 Article XLII provided, that if the Diet should decide 
 in the negative against there being any real danger of 
 an hostile attack, the States which did not share the 
 opinion of the majority of the Diet mightconcert among 
 themselves measures of common defence. Article XLIII 
 provided, that the Diet might mediate, if requested, 
 beftween a Foreign Power and any Confederated State, 
 which considered itself to be in particular danger of a 
 foreign attack, if both the disputing parties consented 
 to its mediation. Article XLIY provided, that every 
 State, when war had been declared, might furnish any 
 number of troops above its contingent at its own ex- 
 pense. By Article XLV the Diet was empowered to 
 take the necessary steps to maintain the neutrality of 
 the territory of the Confederation, if it should be 
 threatened in a war between Foreign Powers, or 
 otherwise. Article XL VI provided, that if a Con- 
 federated State, having possessions beyond the limits 
 of the Confederation, undertook a war, as an Euro- 
 pean Power, the Confederation remained a stranger 
 to such war. Article XL VII was a very important 
 Article, as the protection of the Confederation was 
 thereby extended to territory beyond its own limits. 
 It provided, that in case any State was menaced or 
 attacked in its possessions not comprised within the 
 Confederation, the Confederation was not to adopt 
 any measures of defence, nor to take an active part 
 in the War, until the Diet should have recognised in 
 its Permanent Council by a majority of voices the ex- 
 istence of danger to the Territory of the Confedera- 
 tion, in which case all the dispositions of the previous 
 
76 NATIONAL STATE-SYSTEMS 
 
 Articles should equally apply. Article XL VIII pro- 
 vided, that the dispositions of the Federal Act which 
 precluded every State, after war had been declared 
 by the Confederation, from holding any private ne- 
 gotiations or making a separate peace or armistice, 
 should apply equally to aU States, whether they 
 possessed or not territory beyond the limits of the 
 Confederation. Article XLIX provided, that when 
 peace was to be made, a Committee of the Diet should 
 direct the negotiations, and Plenipotentiaries from 
 the Diet should conduct them. The ratification of aU 
 treaties of peace should only be pronounced by the 
 General Assembly. Such was the organization of this 
 remarkable National League for the security and 
 defence of the Germanic soil from foreign attack. 
 The Inter- The Ordinary Functions of the Diet in regard to 
 
 national , , * • *^ . _ 
 
 Functions Foreigu Eolations of Peace were regulated by Article 
 * '* ■ I. It was authorised as the organ of the Confedera- 
 tion, To watch over the maintenance of peace and 
 friendly relations with Foreign Powers. 2. To re- 
 ceive the Envoys of Foreign Powers, who might be 
 accredited to the Confederation, and to nominate 
 Envoys to Foreign States, if it was judged necessary. 
 3. To conduct negotiations and to conclude treaties 
 on behalf of the Confederation. 4. To employ its 
 good offices with Foreign Powers on behalf of any of 
 the Members of the Confederation who might claim 
 them, and to employ them also with the States of 
 the Confederation, if Foreign Governments shotild 
 request their intervention. In accordance with the 
 
 Diplomatic secoud provisiou of the above Article, Diplomatic 
 Eelations between the Confederation, in its character 
 of an European Power, and the Non-Germanic Powers 
 of Europe, were habitually maintained by permanent 
 Missions accredited by the latter Powers to the Ger- 
 
OF CHRISTENDOM. 77 
 
 manic Confederation at Frankfort, but the Diet did 
 not judge it necessary to accredit Eesident- Envoys on 
 behalf of the Confederation to any Foreign Powers. 
 It was only on extraordinary occasions, as in the case 
 of negotiations which affected the interests of the 
 Confederation, as a Federal System of States, that 
 the Diet appointed Plenipotentiaries to treat with 
 Foreign Powers^*. The respective States of the Con- 
 federation meanwhile both accredited and received 
 Resident Plenipotentiaries, to superintend their 
 separate International Relations with Non-Germanic 
 Powers. 
 
 ^57. It is not within the scope of the present The Ordi- 
 treatise to examine at any length the Internal Con- "Siy of 
 stitution of the Germanic Confederation of 1 815, fur- *'^^ ^'**- 
 ther than as it may serve to throw light upon the 
 Constitution of the New Confederation of 187 1, which 
 bears the name of the German Empire. The affairs 
 of the Confederation, as a Federal System of States, 
 were intrusted to a Federative Diet, which sat at 
 Frankfort on the Maine, and in which each State was 
 represented by a Minister Plenipotentiary. This Diet 
 bore no resemblance except in name to the Diet of 
 the Ancient Empire, which consisted of three Col- 
 leges, each independent of the other, and the Decrees 
 of which required the assent of the Emperor to give 
 them validity. A/VTiereas this Federative Diet was a 
 collective Sovereign Assembly, which exercised its 
 functions in absolute independence of any Superior 
 
 '* Thus the Plenipotentiaries by certain portions of the Grand 
 
 of Austria and of Prussia respect- Duchy of Luxemburg (Ger- 
 
 ively were constituted Plenipo- manic Soil) were ceded to Bel- 
 
 tentiaries of the Diet of the Ger- gium in exchange for portions 
 
 manic Confederation, and in that of tbe Province of Limburg. 
 
 character acceded on behalf of the Martens, Nouveau Eecueil, XVI. 
 
 Confederation to the Treaty of p. 791. 
 London, (19 April, 1839,) where- 
 
78 NATIONAL STATE-SYSTEMS 
 
 Political Authority. The Plenipotentiaries of the 
 States, who were bound by their instructions and 
 could not act without them, voted in the Diet under 
 different conditions, according as they were convened 
 in the Ordinary Assembly of the Diet^ or in the 
 General Assembly, When the Plenipotentiaries met 
 in the Ordinary Assembly, or Permanent Coim.Gil, 
 eleven of them exercised respectively an individual 
 vote, but the remainder voted in six separate groups, 
 two or more States, as the case might be, having the 
 right of giving only a single vote collectively. The 
 votes were thus arranged without prejudice to the 
 rank of the Members : — 
 
 1 . Austria 
 
 3. Prussia 
 
 3. Bavaria 
 
 4. Saxony 
 
 5. Hanover 
 
 6. Wiirtemberg 
 
 7. Baden 
 
 8. Electoral Hesse 
 
 9. Grand Ducal Hesse 
 
 10. Denmark (for Holstein) 
 
 11. Netherlands (for Luxemburg) 
 
 13. Grand-Ducal and Ducal Houses of Saxony 
 
 13. Brunswick and Nassau 
 
 14. Mecklenburg Schwerin and Mecklenburg Strelitz 
 
 15. Holstein-Oldenburg, Anbalt and Schwarzburg. . . 
 
 16. HohenzoUern, Liechtenstein, Eeuss, Schaumburg- 
 
 Lippe, Lippe (Detmold) and Waldeek 
 
 17. The Free Cities of Liibeck, Frankfort, Bremen 
 
 and Hamburg 
 
 Total Votes 17 
 
 Admission Hesse-Homburg was not admitted into the Confede- 
 Homburg, ^tiou Until 7 July, 18172^ when it was allowed to 
 iSi^jJ' '^ Meyer, Staats-Acten des Deutschen Bundes, Tom. U. p. 71. 
 
OF CHRISTENDOM. 79 
 
 share the collective vote of Hohenzollern and its co- 
 ordinate States. The Plenipotentiary of Austria was 
 entitled to preside in the Diet. Each State of the 
 Confederation had the right to propose any measure 
 for consideration, and the President was bound within 
 a given time to bring it before the Diet. Such was 
 the Constitution of the Diet in what was termed the 
 Ordinary Assembly or Close Council. 
 
 § 5S. The Diet formed itself into a General Assem- The Pie- 
 bly termed the Plenum, or Full Chapter, whenever itp^chap- 
 was necessary to decide upon questions touching the ^^^f '^^ 
 enactment or the modification of Fundamental Laws, 
 or the adoption of measures affecting the Federal Act 
 itself, or the Organic institutions and other arrange- 
 ments of common interest to the States of the Con- 
 federation. In this Assembly every State had a 
 separate voice, the larger States being allowed a 
 greater number of votes in the following propor- 
 tions : — 
 
 1. Austria 4 
 
 2. Prussia 4 
 
 3. Saxony 4 
 
 4. Bavaria 4 
 
 5. Hanover 4 
 
 6. Wiirtemberg 4 
 
 "f. Baden 3 
 
 8. Electoral Hesse 3 
 
 9. Grand Ducal Hesse 3 
 
 10. Holstein and Lauenburg 3 
 
 11. Luxemburg 3 
 
 12. Brunswick 2 
 
 13. Mecklenburg-Schwerin a 
 
 14. Nassau a 
 
 15. Saxe-Weimar i 
 
 16. Saxe-Gotha i 
 
 17. Saxe-Coburg i 
 
 18. Saxe-Meiningen i 
 
80 NATIONAL STATE-SYSTEMS 
 
 19. Saxe-Altenburg 3^ 
 
 20. Mecklenburg-Strelitz 
 
 21 . Holstein-Oldenburg 
 
 33. Anhalt-Dessau 
 
 33. Anhalt-Bernburg 
 
 34. Anhalt-Kothen 
 
 35. Schwarzburg-Sondershausea 
 
 36. S ehwarzburg-Rodolstadt 
 
 37. Hohenzollern-Hechengen ... 
 
 38. Liechtenstein ■ 
 
 39. Hohenzollern-Siegmaringen 
 
 30. Waldeck 
 
 31. Reuss (elder branch) 
 
 33. Reuss (younger branch) 
 
 33. Schaumburg-Lippe 
 
 34. Lippe-Detmold 
 
 35. Liibeck 
 
 36. Frankfort 
 
 37. Bremen 
 
 38. Hamburg 
 
 Total Votes 69 
 
 Upon the admission of Hesse-Homburg into the Con- 
 federation, (7 July, 1817,) that State became entitled 
 to a single vote in the Full Chapter ; so that there 
 were seventy voices in the General Assembly. The 
 Diet, in its Ordinary Assembly, had the right of de- 
 ciding by a majority of votes, whether any question 
 should be submitted to the votes of the General 
 Assembly. The Ordinary Assembly had the right of 
 full discussion, and prepared the resolutions to be 
 submitted in the Greneral Assembly, which had no 
 right of discussion ; but simply exercised a right of 
 approval or disapproval by a majority of two-thirds 
 of all its votes. The Diet sat permanently, but it 
 had a power of adjourning itself, after it had com- 
 
 " Formerly Saxe-Hildburghausen. 
 
OF CHRISTENDOM. 81 
 
 pleted its deliberations on any subject, for a period 
 not longer than four months. It will be seen, that 
 as forty-seven votes were required in the General 
 Assembly to constitute a majority of two-thirds, an 
 affirmative decision of the General Assembly implied 
 a greater amount of common agreement amongst the 
 Confederated States than an affirmative decision of 
 the Ordinary Assembly, and that when a combination 
 of the more powerful States might have succeeded in 
 carrying a measure in the Ordinary Assembly, a com- 
 bination of the less powerful States might be enabled 
 to reject it in the General Assembly. Such was the 
 original conception of the General Assembly in the 
 Federal Act, by the Sixth and Seventh Articles of 
 which it had been provided, that two-thirds of the a Majority 
 votes of the Full Chapter should constitute a majority Thirds.' 
 in respect of such matters of common interest as came 
 within its province. It was, however, subsequently 
 provided by the Fourteenth Article of the Final Act, 
 that in regard to Organic institutions, whereby are 
 meant permanent arrangements, serving as means of 
 executing the objects directly connected with the 
 acknowledged end of the Confederation, the General Unanimity 
 Assembly ought to be unanimous in assenting not ° * ^ '**' 
 merely to the preliminary question, whether they 
 should allow any measure at all under the circum- 
 stances to be laid before them, but also in approving 
 the principle and the essential arrangements of any 
 plan which might be proposed. If the General As- 
 sembly should decide in favour of the project submit- 
 ted to them, the details of its execution were to be 
 referred to the Permanent Council, which was to 
 decide aU questions which might arise as to those 
 details by an absolute majority of votes, with power to 
 appoint a Committee to reconcile divergent opinions. 
 
 PAET I. G 
 
82 NATIONAL STATE-SYSTEMS 
 
 Permanent § 59. By Article XI of the Federal Act, the States 
 of thrGCT- of the Confederation mutually guaranteed to one 
 manic Con- another all such portions of their Possessions as were 
 
 lederation. J^ _ a • i tt 
 
 comprised within the Confederation, By Article V 
 of the Final Act, no State was at liberty to detach 
 itself from the Confederation ; and by Article VI no 
 new member could be admitted into the Confedera- 
 tion, without the unanimous assent of all the Con- 
 federated States. No change which might take place 
 in the state of the Possessions of the members of the 
 Confederation could aifect their rights and engage- 
 ments in reference to the Confederation without the 
 consent of the Confederation. No State could voluu- 
 tarily cede its rights of Sovereignty over any portion 
 of its territory within the Confederation to any non- 
 Confederate Power without the consent of the Con- 
 federation. The National Unity of the Confedera- 
 tion, in regard to all matters affecting its territory, 
 was thus complete. We find, accordingly, that upon 
 Treaty of the signature of the definitive Treaty of London^'', 
 iJapii'i. (19 April, 1839,) whereby the King of Holland ceded 
 '^39- to the King of the Belgians a portion of the Grand 
 Duchy of Luxemburg in exchange for a portion of 
 the province of Limburg, not merely was the recog- , 
 nition of the Five Great Powers formally granted to 
 the dissolution of the political Union, which existed 
 between Holland and Belgium, in pursuance of the 
 Treaty of Vienna, of 31 May, 1815 ; but the Ger- 
 manic Confederation by its Plenipotentiaries, formally 
 acceded to the territorial arrangements, which had 
 been concluded between the Five Great Powers, on 
 the one hand, and Holland and Belgium on the other 
 hand ; and under which the King of Holland, as 
 Grand Duke of Luxemburg, had ceded to the King 
 ^^ Martens, Nouveau Supplement, T. XVI. p. 791. 
 
OP CHRISTENDOM. 83 
 
 of the Belgians a portion of the Grand Duchy of 
 Luxemburg within the territory of the Confederation, 
 in consideration of a territorial Indemnity within the 
 Province of Limburg. The Confederation having 
 thus acceded, in its character of an European Power, 
 to the International readjustment of a portion of its 
 territory, it remained for the Diet to order Consti- 
 tutionally, according to the provisions of the Final 
 Act, such arrangements as might be necessary be- 
 tween the Confederation and the Grand Duke of 
 Luxemburg, as one of its members, consequent on the 
 altered circumstances of the Grand Duchy. 
 
 § 60. The Germanic Confederation of 18 15 was the The Ger- 
 creation, as already observed, of a political necessity, ^re of™" 
 It was a compromise between the minor States and '^^'• 
 the two great Powers. It lasted, however, more than 
 fifty years in spite of certain defects in its ConstitU' 
 tion, and notwithstanding that full effect could not 
 be given to that Constitution from a want of har- 
 mony in the policy of the two great Powers. War 
 ultimately broke out between these two Powers, the 
 issue of which was disastrous to Austria, who finally 
 under Article lY of the Treaty of Prague (23 August, 
 1866) acknowledged the dissolution of the Germanic 
 .Confederation as hitherto constituted, and gave her 
 consent to a new organization of Germany without 
 the participation of the Imperial Austrian State. 
 Austria likewise promised to recognise the more re- 
 stricted Federal relations, which Prussia proposed to 
 establish to the north of the line of the River Maine, 
 and declared her concurrence in the formation of an 
 Association of the Germanic States to the south of 
 that line, whose national connection with the North 
 German Confederation was reserved for further ar- 
 rangement between the parties, and which would 
 
 G 2 
 
84 NATIONAL STATE-SYSTEMS 
 
 have an independent international existence. A fur- 
 ther result of this Treaty was that the King of Prus- 
 sia declared the Kingdom of Hanover, the Electorate 
 of Hesse Cassel, the Duchy of Nassau, and the Free 
 City of Frankfort, by a decree bearing date 20 Sept., 
 1866, and by various Royal Letters Patent, to be 
 united for ever to the Prussian Monarchy, and took 
 possession of them by right of conquest and in con- 
 sequence of a war, which as alleged by Prussia had 
 been commenced by them in alliance with Austria 
 and in violation of the Federal Law then in force. 
 The annexation of these four States by Prussia, who 
 had already occupied the Duchy of Holstein by right 
 of conquest over the King of Denmark, was a neces- 
 sary preliminary to the formation of a North German 
 Confederation, the Constitution of which, as promul- 
 gated on 14 June, 1867, it is unnecessary to examine 
 as it was merely preparatory to a more complete 
 Union of the Constituent States in a new Confede- 
 ration, which bears the name of the German Empire. 
 The same observation will apply to the Association 
 of the Germanic States to the south of the line of the 
 Maine, which have also been admitted into this more 
 complete Union, which is declared in the preamble of 
 its Constitution to be an everlasting Confederation 
 for the Protection of the Territory of the Confedera- 
 tion and the rights thereof, as well as to care for the 
 welfare of the German people. It is this Confede- 
 ration which bears the name of the German Empire, 
 of which the Presidency is declared by Article XI of 
 its Constitution to belong to the King of Prussia, who 
 bears the name of German Emperor. His functions 
 are to represent the Empire internationally, to declare 
 war and to conclude peace in the name of the Empire, 
 to enter into alliances and other treaties with Foreign 
 
OF CHRISTENDOM. 85 
 
 Powers, and to accredit and to receive Ambassadors. 
 The consent however of the Council of the Confede- 
 ration is necessary for a declaration of war in the 
 name of the Empire, unless an attack on the territory 
 or the coast of the Confederation has taken place. 
 Further, in so far as Treaties with foreign Sj;ates may 
 have reference to Affairs which in accordance with 
 Article IV belong to the jurisdiction of the Imperial 
 legislature, the consent of the Council of the Con- 
 federation is requisite for the conclusion of such 
 treaties, and the Sanction of the Imperial Diet for 
 their coming into force. 
 
 The Council of the Confederation, which corre- 
 sponds in some respects in its organization with the 
 Plenum or Full Chapter of the former Confederation 
 of 1 8 1 5 , consists of the Bepresentatives of the members 
 of the Confederation, amongst which the votes are di- 
 vided in such a manner that Prussia has together with 
 the former votes of Hanover, Electoral Hesse, Holstein, 
 Nassau, and Frankfort seventeen votes, the total num- 
 ber of votes being fifty-eight, divided in this manner : — 
 
 1. Prussia with the five annexed States 17 
 
 3. Bavaria 6 
 
 3. Saxony 4 
 
 4. Wiirtemberg 4 
 
 5. Baden.. ; 3 
 
 6. Hesse (Grand Ducal) 3 
 
 7. Mecklenburg-Schwerin 2 
 
 8. Saxe- Weimar i 
 
 9. Meeklenburg-Strelitz , i 
 
 10. Oldenburg i 
 
 11. Brunswick 3 
 
 12. Saxe-Meiningen 
 
 13. Saxe-Alfcenburg • 
 
 14. Saxe-Coburg-Gotha 
 
 15. Anhalfc 
 
 16. Schwarzburg-Rudolstadt 
 
86 NATIONAL STATE-SYSTEMS 
 
 17. Sehwarzburg-Sondershausen l 
 
 18. Waldeck i 
 
 19. Reuss (elder line) i 
 
 20. Reuss (younger line) i 
 
 21. Schaumburg-Lippe i 
 
 22. Lippe I 
 
 23. Liibeck i 
 
 24. Bremen i 
 
 25. Hamburg i 
 
 Total Votes 58 
 
 Each member of the Confederation can nominate as 
 many Plenipotentiaries to the Council of the Con- 
 federation as it has votes, but the totality of votes 
 can only be given in one sense. 
 
 The Council of the Confederation elects permanent 
 Committees from its own members for seven different 
 departments of internal affairs, and besides these a 
 Committee for foreign affairs is formed in the Council 
 of the Confederation, comprising the Eepresentatives 
 of the Kingdoms of Bavaria, Saxony, and Wiirtem- 
 berg and two other Kepresentatives of other Con- 
 federated States, who are elected annually to the 
 Council, and in this Committee Bavaria is entitled 
 always to occupy the Chair. Every member of the 
 Council of the Confederation has a right to appear 
 in the Imperial Diet and must at aU times be heard, 
 if he so desires, in order to represent the views of his 
 Government, even when those views have not been 
 adopted by a majority of the Council. No one may 
 at the same time be a member both of the CouncU 
 of the Confederation and of the Imperial Diet. 
 
 The Imperial Diet is elected by universal and 
 direct election with secret votes, the total number of 
 members being 382. The elections take place in 
 accordance with a Federal Electoral Law. 
 
OF CHRISTENDOM. 87 
 
 It will be seen that the extinct Germanic Confede- 
 ration of 1815-1866 was strictly speaking a Confede- 
 ration of independent States, entitled to be classed 
 tinder the most ancient category of such Unions, of 
 which the Confederation of the United States of 
 America from 1776 to 1787, and the Swiss Confede- 
 ration from 1 804 to 1 848, were examples. 
 
 This peculiar class of Confederated States is by 
 German Jurists distinguished by the term Staaten- 
 Bund from the closer union of States known as a 
 Federal State (Bundes-Staat), of which the United 
 States of America since 1787, and the Swiss Con- 
 federation since 1848, are instances. On the other 
 hand* the present Germanic Confederation, which 
 bears the name of the German Empire, has been 
 distinguished by German Jurists from a Staaten- 
 Bund by a phrase specially coined for the occasion, 
 and it is classed by them under the head of Staaten- 
 Eeich, It is difficult, however, to discover any inter- 
 national feature of difference between the German 
 Empire of 1871 and a Staaten-Bund. The difference, 
 in fact, between them seems to be formal, in so far 
 as the Executive Chief of an ordinary Federative 
 State is styled a President, whereas the Executive 
 Chief of the German Empire of 1871 bears the 
 title of Emperor. There is something," however, to 
 be said in favour of adopting this new classification 
 as regards the international character of the German 
 Empire of 187 1, but then both the Ottoman Empire, 
 and the Austro-Hungarian Monarchy may from a 
 certain point of view be also properly designated by 
 the same phrase, inasmuch as they consist of "States" 
 and not of " Provinces," and the Executive Chief is 
 styled an Emperor, not a President, 
 
CHAPTEE IV. 
 
 THE OTTOMAN EMPIRE. 
 
 International Eelations of the Mahommedan World — Admission 
 of the Porte into the Concert of European Nations — Treaty of 
 Paris, 30 March, 1856 — Declaration of Maritime Law, 16 April, 
 1856 — Constitution of the Ottoman Enlpire — Normal division 
 into Vilayets — Christian and Mahommedan Dependencies — The 
 States on the Barbary Coast — ^Algiers, formerly a vassal State of 
 the Ottoman Empire, now a dependency of France — Tripoli, 
 formerly an hereditary Regency, now a Vilayet of the Ottoman 
 Empire under a removable Vali — Tunis, lately a Vilayet of the 
 Ottoman Empire, now under a French Protectorate — Egypt, formerly 
 a Vilayet, now a vassal State of the Ottoman Empire under an 
 hereditary Khedive^ — Treaty of London, 15 July, 1840 — Principality 
 of Samos, an autonomous dependency of the Porte under a Chris- 
 tian Prince, paying tribute to the Porte — Diplomatic Note of 
 10 Dec, 1832 — Bulgaria, an autonomous and tributary Principality 
 under a Christian Prince — Treaty of Berlin, 1878 — Eastern Rou- 
 melia, an autonomous Province under a Christian Vali nominated 
 by the Porte in consultation with the Signatory Powers of the 
 Treaty of Berlin, 1878 — The Lebanon, an autonomous Province 
 under a Christian Governor-General, nominated by the Porte after 
 consultation with the Signatory Powers of the Treaty of Paris of 
 Sept. 5, i860 — Bosnia and Herzegovina under Treaty- Arrange- 
 ments occupied and administered by Austria-Hungary — The Island 
 of Cyprus occupied and administered by Great Britain under 
 a Treaty of Alliance with the Porte of 4 June, 1878. 
 
 Interna- ^ 61. The International Relations of the Ottoman 
 Mods of' Porto with. the Christian Powers of Europe have 
 hommedan undergone a remarkable change and received an 
 World. extraordinary development during the last preceding 
 fifty years. At the commencement of the present 
 
THE OTTOMAN EMPIRE. 89; 
 
 century, it would not have been incorrect to have 
 described those Relations as resting solely on com- 
 pact. Such, indeed, was the view adopted by Lord 
 StoweU in 1804, when he was called upon to ad- 
 minister the Public Law of Europe in matters where- 
 in the interests of Ottoman Subjects were concerned, 
 " The Inhabitants of the Ottoman Empire," he ob- 
 serves ^, " are not possessors of exactly the same Law 
 of Nations with ourselves. In consideration of the 
 peculiarities of their situation and character, the 
 Court has repeatedly expressed its disposition not 
 to hold them bound to the utmost rigour of that 
 system of Public Law, on which European States 
 have so long acted in their intercourse with one 
 another." The same distinguished Jurist, on another 
 occasion ^ wh.en the acts of an established Mahomme- 
 dan Government were impugned, observed that " al- 
 though their notions of justice to be observed amongst 
 Nations differ from those which we entertain, we do 
 not on that account venture to call in question their 
 Public Acts. As to the mode of confiscation, which 
 may have taken place on this vessel, whether by 
 formal sentence or not, we must presume it was done 
 regularly in their way, and according to the Esta- 
 lUshed Custom of that part of the world. There 
 might perhaps be cause of capture, according to their 
 notions, for some infringement of the Regulations of 
 a Treaty, as it is by the Law of Treaty only that w of 
 these Nations hold themselves bound, conceiving (as 
 some other people have foolishly imagined) that there 
 is no other Law of Nations but that which is derived 
 from positive compact and convention.'' 
 
 1 The Madonna del Burso, 4 c. ^ The Helena, 4 c. Eobin- 
 Eobinson's Admiralty Reports, son's Admiralty Eeports, p. 6. 
 p. 172. 
 
90 THE OTTOMAN EMPIRE. 
 
 Wheaton has adopted an identical view of the 
 International Relations of the Mahommedan world. 
 "The European Law of Nations," he writes^, "is 
 mainly founded upon that community of origin, man- 
 ners, institutions, and religion, which distinguishes 
 the Christian Nations from those of the Mahommedan 
 world. In respect to the mutual intercourse between 
 the Christian and the Mahommedan Powers, the for- 
 mer have been sometimes content to take the Law 
 from the Mahommedan, and in others to modify the 
 International Law of Christendom in its application 
 to them. Instances of the first may be found in the 
 cases of the ransom of prisoners, the rights of ambas- 
 sadors, and many others where the milder usages 
 established amongst Christian Nations have not yet 
 been adopted by the Mahommedan Powers. On some 
 other points they are considered as entitled to a very 
 relaxed application of the pecuHar principles esta- 
 blished by long usage amongst the States of Europe, 
 holding an intimate and constant intercourse with 
 one another." 
 Admis- ^62. Such may have been a correct picture of the 
 
 Porte into exceptional position which the Ottoman Porte occu- 
 cert*^f" P^^^ amongst the Powers of Europe during the early 
 European part of the reign of the Emperor Mahommed II. 
 (1808 — 39). The Ottoman Empire was accordingly 
 not represented by any Minister in the Congress of 
 Vienna (anno 1815), nor was it included in the system 
 of Public Law recognised by the Powers there assem- 
 bled. But since the destruction of the Janissaries (17 
 June, 1826) the Ottoman Porte has steadily advanced 
 in its practice towards the European platform of 
 Public Law. It has not, it is true, made any formal 
 communication to the European Powers on the sub- 
 ^ History of the Law of Nations. Part IV. § 21. 
 
THE OTTOMAN EMPIRE. 91 
 
 ject ; but it may be considered to have substantially 
 pledged itself to the acceptance of the International 
 Law of Europe by subscribing, as one of the Parties 
 to the General Treaty of Paris, (30 March, 1856 *,) Treaty of 
 the clause of the Seventh Article, whereby the Sub- March; 
 lime Porte is declared "to be admitted to a parti- ^^^^' 
 cipation in the advantages of the Public Law of 
 Europe and the System of Concert attached to it," 
 since it is a cardinal principle of that System, that 
 the rights and obligations of Nations are reciprocal. 
 The Porte appears on that occasion not only to have 
 acquiesced in the declaration of its admission into the 
 European Family of Nations, but to have joined in 
 applying to itself the principle involved in that decla- 
 ration, as may be clearly deduced from the Fifteenth 
 and Sixteenth Articles of the Treaty, whereby the 
 Provisions of the Final Act of the Congress of Vienna 
 concerning the navigationofrivers^ which separate or 
 traverse several States, are made applicable to the 
 Danube and its mouths, and which disposition is de- 
 clared to form part of the Public Law of Europe, and 
 to be under the guaranty of all the Contracting 
 Powers. The Porte had already abandoned its own 
 traditions with regard to the precedence and reception 
 of Foreign Ambassadors, and had in* practice con- 
 formed itself to the rules established amongst the 
 European Powers in regard to an uniform mode of 
 reception, and an uniform scale of rank and precedence 
 for Ambassadors and other Diplomatic Agents : it 
 had already appealed in its negotiations with various 
 Christian Powers, as for instance in the case of Greece 
 in 1854, to International Eights and the Law of Na- 
 tions as something independent of mere Compact, and 
 upon which it took its stand in common with the 
 * Martens, N. E. G6n. XV. p. 77<?- 
 
92 THE OTTOMAN EMPIRE. 
 
 Powers of Europe; it has further by subscribing 
 i?e<!iari^ the Declaration of Maritime Law at Paris, (i6 April, 
 ritime 1 856,) Subsequently to its signature of the General 
 Aprii,'^ Treaty, formally placed on record its assent to the 
 J 856. milder practice, which the European Nations have 
 agreed henceforth to adopt, in regard to the respective 
 rights and duties of Belligerent and Neutral Powers. 
 It would thus appear, that the Ottoman Porte has 
 for all practical purposes adopted the Common Law 
 of Europe, as the rule of its intercourse with Non- 
 Mahommedan Powers in matters not specially provided 
 for by Treaty-engagements. . Its International Rela- 
 tions under Treaty-engagements are and will pro- 
 bably continue to be extremely anomalous, owing 
 to the broad line of demarcation which separates 
 the manners and institutions of the Mahommedan 
 world from those of Christendom. Some of these 
 Treaty-engagements are strictly of a political cha- 
 racter, establishing special obligations between Chris- 
 tian States and Individual Governments of the Otto- 
 man Empire ; others have in view the regulation 
 and security of commercial intercourse between Otto- 
 man and Christian Merchants, and are in form Capi- 
 tulations between the Porte and Individual Christian 
 Powers, being "limited in their application to the sub- 
 jects of those Powers whilst resident within the Otto- 
 man Territory. These will require special notice in 
 their proper place when the right of Treaty is dis- 
 cussed ; it will be sufficient for the present to have 
 alluded to them. 
 Constitn- $ 63. The Ottoman Empire is constitutionally a 
 ottoma*^^ Single State, composed of thirty-six^ General Govern- 
 
 Empire. 
 
 " This number is given in the La Turquie Actuelle, Introduo- 
 Imperial Almanack (Salnam6) of tion, p. 16. 
 1854, and is adopted by Ubioini, 
 
THE OTTOMAN EMPIRE. 93 
 
 ments, termed " Vilayets," which are subdivided into 
 Provinces (livas or sandjaks) ; the Provinces are in 
 their turn subdivided into Districts (Cazas or Centres 
 of Justice), which are again subdivided into Cantons 
 {nahifes) composed of Villages or Hamlets. Each 
 Vilayet is administered by a Governor-General who 
 bears the title of Vali. The Sandjaks or Livas are 
 administered under the Vali by Governors, who are 
 styled Mutessarifs. The Cazas are administered by 
 Lieutenant-Governors (Kaimakams), and the Nahifes 
 by Mayors (Mudirs)*. The division of the Empire 
 into General Governments, which for the most part 
 bear the name of the city, which is the seat of the 
 Government, dates from the reign of Sultan Mah- 
 moud II, who determined to efface the ancient pro- 
 'vincial divisions of the Empire, as keeping up the 
 memory of the old nationalities, and with that object 
 subdivided the ancient provinces into Vilayets. The 
 existing organization, however, saving certain reforms 
 introduced into the Vilayet of the Danube by Midhat 
 Pacha in 1864, dates from the reign of the Sultan 
 Abdul Medjid, who succeeded to the throne in 1839. 
 Of these Vilayets, which were thirty-six in number 
 as organized by the Sultan Abdul Medjid, fifteen were 
 in Europe, eighteen in Asia, and three in Africa. 
 The Asiatic Vilayets retain in the present day their 
 original territorial limits with the exception of por- 
 tions of the Vilayets of Trebizonde, Erzeroum, and 
 Van, which have been ceded to Russia under the 
 Preliminary Peace of San Stefano of 3 March, 1878, 
 and of which the cession has been confirmed by the 
 
 ' The Mudirs are elected by are nominated by the Central 
 
 the inhabitants of each aSTahife, Government Loi des Vilayets 
 
 subject to confirmation by the (1870). Samwer and Hopf., Trai- 
 
 Vali. All the other functionaries Us 2^e g^rie, Tom. III. p. 49. 
 
94: THE OTTOMAN EMPIRE. 
 
 subsequent Treaty of Berlin of the same year. On 
 the other hand the European Vilayets have under- 
 gone great changes, and some of them have ceased to 
 form part of the Ottoman Empire, for instance the 
 Vilayets of Bogdan and EfiBak (Moldavia and Wala- 
 chia), and the Vilayet of Syrp (Servia). These three 
 latter Vilayets enjoyed for some time a qualified 
 independence under the Suzerainty of the Sultan, 
 and whilst they were still recognised internationally 
 as integral parts of the Ottoman Empire, they were 
 in fact governed by Christian Princes, elected or here- 
 ditary as the case may have been, until their inde- 
 pendence was definitively recognised by the Treaty of 
 Berlin of 13 July, 1878. The condition of these 
 Vilayets, being Christian dependencies of the Porte, 
 was at aU times distinct from that of the Mahomme- 
 dan dependencies. By a strict apphcation of its 
 religious Law (The Goran, IX. 29) the Porte held 
 each of its Christian dependencies by the obligation 
 of paying tribute and obeying the General Law of 
 the Empire. The Mahommedan dependencies,' on the 
 other hand, were bound to meet the Padichah's requi- 
 sitions both in men and in money for purposes of 
 war. The general rule has been modified in parti- 
 . cular instances owing at one time to the weakness of 
 the Porte itself, and to the successful resistance of the 
 Valis, at other times to the interference of Foreign 
 Powers taking the form of treaty-engagements, to 
 which effect has been given by the Padichah's Fir- 
 man or Edict. Of the three African Vilayets, to wit, 
 Egypt, Tripoli, and Tunis, Egypt and Tunis are in- 
 stances, in which Foreign Powers have intervened 
 and procured for the Vali an hereditary tenure of his 
 office of Governor-General, and an enlargement of his 
 powers, whilst Tripoli has been reduced by force of 
 
THE OTTOMAN EMPIRE. 95 
 
 arms on tlie part of the Porte to the condition of an 
 immediate Pachalik, like the Asiatic Vilayets, of which 
 the Vali has only a precarious tenure. 
 
 § 64. The Dependencies of the Porte on the Bar- The states 
 bary Coast were formerly three in number, Algiers, bar^craTt' 
 Tunis, and Tripoli. Of these, Algiers was not origi- 
 nally a conquest of the Porte, but an acquisition of 
 the Greek Eenegade Kharaddin, better known as 
 Barbarossa, who first introduced the practice of piracy 
 in the Mediterranean and Levant Seas, and left it 
 an established institution amongst the Mussulman 
 tribes of the Barbary Coast. Barbarossa and his 
 brothers were in fact Condotiieri of the Sea. They 
 had under the pretext of commercial enterprise esta- 
 blished an armed fleet in the Mediterranean, and* 
 when Selim, the last Independent Prince of Algiers, Algiers, 
 was hard pressed by the united forces of the Spaniards 
 and the Arab Tribes in alliance with the Emperor 
 Charles V, Barbarossa brought his squadron to his 
 aid, and upon his death svicceeded to his Sovereignty. 
 He was however sensible of his inability to struggle 
 alone with success against the Powers of Christen- 
 dom, and he accordingly hastened to place himself, as 
 a vassal, at the feet of the Padichah of the Ottomans, 
 who readily accepted his submission in that character, 
 and conferred upon him the government of his newly 
 acquired territory with the title of Bey. The subse- 
 quent career of Barbarossa fills a considerable page in 
 the History of the Ottoman Empire. By the orders 
 of the Emperor Soleiman I, he led his fleet against 
 Tunis with a view to dethrone the Sultan Moulei 
 Hasan, and to supplant his dynasty. His success was Tunis. 
 but temporary, and Tunis was restored to the ancient 
 dynasty of Beni-Hafas by the united arms of the 
 Emperor Charles V and the Knights of Malta. Tunis 
 
96 THE OTTOMAN EMPIRE. 
 
 experienced subsequently great vicissitudes. The 
 Spaniards under Don John of Austria regained pos- 
 session of it for a short time in 1572, but in 1574 it 
 passed into the hands of the Ottomans, and untU 
 very recently has been governed by a succession of 
 Valis, nominated by the Porte, whose firmans are 
 registered in the Chancery of the Divan at Con- 
 stantinople. 
 Tripou. Tripoli had meantime been wrested by the Otto- 
 
 man arms from the Knights of St. John of Jerusalem, 
 and it was placed in like manner under the govern- 
 ment of a Beylerbey.' It was after this period that 
 other Renegades from Christianity, taking advantage 
 of the religious law of the Mussulman, which contem- 
 plates a permanent state of war to exist between 
 the true Believer and -the UnbeHever, capable of 
 being suspended only by express treaty or by pay- 
 ment of tribute, gave so great a development to pira- 
 tical enterprise in the ports of the three Barbary 
 Powers, that they came to be considered in Europe 
 as mere nests of pirates, which had usurped the cha- 
 racter of political Bodies. So formidable indeed were 
 the ravages of the Algerine Corsairs in the Seven- 
 teenth Century, and so inefficient was the Sovereignty 
 of the Ottoman Porte to restrain them, that the 
 Christian Powers of Europe found it expedient to 
 conclude Conventions directly with the Barbary Go- 
 vernments in furtherance of treaties already existing 
 Treaties with the Ottoman Porte. Thus Louis XIII of France 
 giers. concluded a treaty at Marseilles with the Pacha of 
 Algiers (24 March, 1619)', whereby the latter bound 
 himself to observe more faithfully than heretofore the 
 commands of the Porte in regard to its Capitulations 
 
 ' Flassan, Histoire de la Diplomatie Frangaise II. p. 329. Dumout, 
 Traitds, V. pt. II. p. 330. 
 
THE OTTOMAN EMPIRE. 97 
 
 with France. In the following year. Great Britain 
 prepared to attack Algiers with a fleet under the 
 command of Admiral Monson, but the projected hos- 
 tilities were diverted by the payment of an indemnity 
 from the Ottoman Porte. This result had been 
 brought about through the instrumentality of Sir 
 Thomas Eoe, who had been despatched to Constanti- 
 nople to open negociations directly with the Porte *. 
 Special treaties were soon after concluded between 
 England and the Eegencies of Algiers and Tunis 
 respectively, which received the confirmation of the 
 P^dichah. In the middle of the Seventeenth Cen- 
 tury King Charles II of England despatched the 
 Earl of Winchelsea, (anno 1660,) as Ambassador to 
 the Governor of Algiers, who had very recently 
 assumed the title of Dey, and concluded a Treaty of 
 Commerce directly with the Dey, the main object of 
 which was to secure British Merchant Vessels from 
 piratical seizure. In the early part of the Eighteenth 
 Century no Enghsh vessel of Commerce ventured to 
 enter the Mediterranean from the Atlantic without 
 calling at Gibraltar for a Mediterranean pass, which 
 was signed by the Lords of the English Admiralty, 
 and which under treaties with the Barbary States 
 was necessary to exempt an English vessel from 
 capture by the Algerine Sea Eovers. This practice 
 however was put an end to by the Bombardment of 
 Algiers in 18 15 by a British fleet under Lord Ex- 
 mouth, when the Dey agreed to abolish Christian 
 Slavery, and to conform himself to the usages of 
 European Civilisation. Piracy however was not en- 
 tirely abandoned by the Algerines until France de- 
 clared war against the Dey in 1830 with a view to 
 
 8 Eoe, Negociations with the Hammer. Histoire de I'Empire 
 Ottoman Porte, p. 35. 260. Von Ottoman, IX. p. 30. Paris 1 837. 
 PART 1. H 
 
98 THE OTTOMAN EMPIRE. 
 
 avenge a national affront, and at the same time to 
 deliver the Mediterranean Sea for ever from the 
 scourge of piracy. France subsequently found herself 
 called upon to secure her peaceable occupation of the 
 city of Algiers and the adjoining coast by extending 
 her conquests over the internal territory appurtenant 
 to the Algerine State, and has ultimately reduced 
 the whole of the Algerine territory under French 
 dominion. 
 Early Trea- ^65. It appcars from the Treaty concluded by Sir 
 the Sub- John Finch in 1675, between the Ottoman Porte and 
 lime Porte, jjngknd ", whiclT recites and confirms the Articles of 
 all the previous Treaties, that in the earliest Treaty 
 with England, the Ottoman Porte had agreed " that 
 the English Ambassadors may at their pleasure esta- 
 blish Consuls, resident in Aleppo, Alexandria, Tripoli 
 of Syria, or Tunis, Algiers, Tripoli of Barbary, in 
 Smyrna, the parts of Cairo, or any other parts of 
 our dominions, and in like manner remove them or 
 change and appoint others in their places, and none 
 of our Ministers shall oppose or refuse to accept them ;" 
 and further, " the Enghsh Nation's Consul or Eesi- 
 dent in any part of our dominions, being established 
 by the Ambassador resident for the English Nation, 
 our Minister shall have no power to imprison or ex- 
 amine them, or seal up their houses, nor to dismiss or 
 displace them from their charge or office ; but in case 
 of any difference or suit with the Consul, there shall 
 be made a Certificate to the Imperial Porte to the 
 end that the Ambassador may protect or answer for 
 them." 
 
 Although therefore stipulations are found in the 
 Treaties concluded with the Barbary States respect- 
 
 " Hertslet'sTreatieSjII. p. 349. 
 
THE OTTOMAN EMPIRE. 99 
 
 ing the protection to be afforded to the Consuls of the 
 European Powers, it must be borne in mind that the 
 Consuls were not accredited to the Barbary Powers, 
 as some writers on International Law assume, but 
 exercised their functions under Treaty-engagements 
 with the Porte itself. MoUoy", in speaking of the 
 Barbary Powers in the reign of Charles II, misled 
 perhaps by the fact that the Earl of Winchelsea, the 
 Ambassador of England to the Ottoman Porte, con- 
 cluded a Treaty with the Day of Algiers on his pas- 
 sage to Constantinople, partakes in the common error 
 of describing them as nests of pirates which, not- 
 withstanding this, " obtain the right of legation and 
 having acquired the reputation of a Government, can- 
 not now possibly be esteemed pirates, but enemies." 
 He had previously described them more correctly as 
 " Governments or States, upon which, although they 
 acknowledged the supremacy of the Ottoman Porte, 
 yet all the Power of it cannot impose more than their 
 own wUls voluntarily consent to." The Governments The Bar- 
 themselves, although de jure held during the pleasure formerly ^ 
 of the Padichah, had become in practice, owing, to f gge^^'^ 
 the weakness of the Porte, Hereditary Regencies. 
 The Kegent however on his accession never omitted 
 to claim the sanction of the Sultan, which with an 
 appearance of demur was usually granted on the 
 presentation to his Imperial Majesty of objects more 
 or less valuable, qualified by the Porte as tribute, 
 and by the Regent as a free gift. In cases of war 
 the Regent furnished a contingent, the quality and 
 amount of which he strove to regulate according to 
 circumstances. 
 
 fi 66. The condition of Tunis has undergone in re- Anomalous 
 
 ■' ,, ,.[. . TT1TT position of 
 
 cent times considerable modification. U nder a Jb irman Tunis. 
 " De Jure Maritimo, p. 38. § 4. 
 H a 
 
100 THE OTTOMAN EMPIRE, 
 
 granted by the Porte on 23 Oct., 1871 ", to Mohammed 
 Sadyk Pacha, Bey of Tunis, the province of Tunis 
 within its ancient limits was confirmed to him as 
 an hereditary government to descend to the senior 
 member of his family, relieved from the tribute pay- 
 able ab antiquo, but liable to furnish a military con- 
 tingent in case that the Porte should be engaged in 
 a foreign war. No change was to be made in the 
 flag, and money was still to be struck as coin of the 
 Empire. The right of concluding political treaties, of 
 declaring war, making peace, and of assenting to any 
 modification of the frontiers of the Province, was 
 reserved to the Porte as amongst the sacred I'ights 
 of Sovereignty, but outside those limits the Bey was 
 authorised to maintain as heretofore treaty-relations 
 with Foreign Powers. Accordingly we find a General 
 Convention concluded on July 19, 1874^^ between 
 the Queen of Great Britain and Mohammed Es Sadock 
 Bey, as Lord of the Eegency of Tunis, under which 
 the privilege of Consular Jurisdiction was secured 
 to British subjects. A distinction in respect of 
 the exercise of such jurisdiction is observable as 
 between the province of Tripoli and the Eegency of 
 Tunis, inasmuch as in the former province the Con- 
 sular Jurisdiction is exercised in conformity with the 
 capitulations applicable to the other European and 
 Asiatic Provinces of the Ottoman Empire, in pur- 
 jsuance of a Protocol signed at Constantinople on 
 24 February, 1873, to which Great Britain, France, 
 Italy, and the Porte, were parties, whereas in the 
 Eegency of Tunis the Consular Jurisdiction is exer- 
 cised in accordance with Conventions between the 
 
 " Legislation Ottomane, par " N. Eecueil G6n6ral des 
 D6m6trius Nicolaides. gme Par- Trails, par Samwer et Hopf. 
 tie. Constantinople, 1874, p. 147. 2me g^rje. Tom. II. p. 479. 
 
THE OTTOMAN EMPIRE. 101 
 
 Bey of Tunis himself and the respective European 
 Powers. 
 
 A somewhat anomalous change has come over this 
 dependency of the Porte, in pursuance of a Treaty of 
 friendship and good neighbourhood signed at Casr- 
 Said on 12 May, 1881, between the Government of 
 the French Republic and His Highness the Bey of 
 Tunis. The two high contracting parties being desirous 
 to prevent the renewal of the disorders, which had 
 recently caused trouble on the frontier of the two 
 States and on the Tunisian Coast, agreed to conclude 
 a Convention for that object in the interest of both 
 the High Contracting Parties. By Article I, it was 
 agreed to confirm all the existing Treaties between 
 the French Eepublic and the Bey of Tunis. Under 
 Article II, the Bey of Tunis consented that the French 
 Military Authorities should occupy the points which 
 they might deem to be necessary to assure the re- 
 establishment of order and the security of the 
 Frontier and of the Coast. This occupation is to 
 cease, when the French and Tunisian authorities 
 shall recognise by a common accord that the local 
 administration is in a state to guarantee the main- 
 tenance of order. By Article III, the Government 
 of the French Republic has engaged itself to afford 
 a constant support to His Highness the Bey of Tunis 
 against every danger, which may menace his person 
 or his dynasty, and which may compromise the tran- 
 quillity of his States. By Article IV, the Government 
 of the French Eepublic has guaranteed the execution 
 of the Treaties actually existing between the Govern- 
 ment of the Regency and the various European 
 Powers. By Article V; the Government of the French 
 Eepublic is to be represented near His Highness the 
 Bey of Tunis by a resident Minister, who shall watch 
 
102 THE OTTOMAN EMPIRE. 
 
 over the execution of the Treaty, and who shall be 
 the intermediary of the relations of the French Go- 
 vernment with the Tunisian authorities in all matters 
 concerning the two countries. By Article VI, the 
 Diplomatic and Consular Agents of France in foreign 
 countries are to be charged with the protection of 
 Tunisian interests and of the Nationals of the Eegency. 
 In return, the Bey of Tunis has engaged not to con- 
 clude any Act of an international character without 
 having made it known to the Government of the 
 French Eepublic, and having previously come to an 
 understanding with it. The four concluding Articles 
 of the Treaty have reference to matters of finance — 
 a war indemnity to be levied on the tribes in revolt, 
 a prohibition against the introduction of contraband 
 of war into the Algerian territory, and the ratification 
 of the Treaty itself, to which are affixed the signa- 
 tures of Mohammed Es Sadock Bey on the one part, 
 and of General Br^art, the Representative of France, 
 on the other part ^^. 
 
 It does not appear from any published document 
 that the assent of the Suzerain Power has been given 
 to the French Protectorate, on the contrary, the Porte 
 appears to have protested^* against this Treaty 
 (i2 June, 1881), and has declined to recognise its 
 validity on the occasion of the French Consul-General 
 in Tripoli claiming the right of protecting natives of 
 Tunis within that Vilayet of the Porte. Further, 
 the French Government has asserted a similar right 
 of protection over Tunisian subjects settled in Egypt,, 
 which is still a dependency of the Porte, notwith- 
 
 " Nouveau Eecueil G6n6ral " Despatch from the Porte 
 
 des Trait6s, par Samwer et to the Ottoman Ambassador 
 
 Hopf. 2^6 S6rie. Tom. VI. in London. Das Staats-Arohiv. 
 
 p. 507- i88i,p. II. 
 
THE OTTOMAN EMPIRE. 103 
 
 standing the Sultan, in his Firman of 23 Oct., 1871, 
 has declared formally all Tunisian subjects to be his 
 subjects. Mohammed Es Sadock Bey has subsequently 
 to his acceptance of a French Protectorate, abdicated 
 the Regency of Tunis, and his next brother, Sidi-AH, 
 pursuant to the order of succession in his family, 
 established under the Firman already mentioned, has 
 succeeded to the Eegency on 28 Oct., 1882. 
 
 The Protectorate, which France has undertaken 
 under the provisions of the Treaty of 12 May, 1881, 
 and which she claims to exercise over Tunisians in 
 foreign countries, deserves some remarks, as the exer- 
 cise of such a Protectorate without a previous recog- 
 nition of the Treaty Right by the Suzerain Powers and 
 by the Powers within whose territory it is sought to 
 be exercised, may be regarded as a novelty. The 
 Protectorate which Russia claimed to exercise over 
 Ottoman subjects within the Danubian PrincipaHties, 
 was in virtue of Treaties with the Ottoman Porte, 
 and was only of concern to the Ottoman Porte itself, 
 the exercise of whose Sovereignty within its own 
 territorial dependencies was liable to be affected by 
 it. But the Protectorate, which thB French Republic 
 claims to exercise over Tunisians in foreign countries, 
 in pursuance of Article YI of the Treaty of Casr-Said, 
 concerns foreign countries, inasmuch as it may conflict 
 with Treaty Rights conceded by those countries to 
 the Suzerain Power. It has, as regards foreign 
 countries, some analogy to the Protectorate which 
 the King of Great Britain and Ireland exercised in 
 foreign countries, over the natives of the Ionian 
 Islands, before the Seven Islands were united to the 
 Kingdom of Greece in 1863. But before the King 
 of Great Britain and Ireland advanced any claim to 
 exercise a Protectorate over Ionian subjects in foreign 
 
104 THE OTTOMAN EMPIRE. 
 
 countries, the provisions of the Conventions between 
 Great Britain and her three Allies, Russia, Austria, 
 and Prussia, who had a Treaty Right of joint disposal 
 over the most important of the Seven Islands, had 
 received a general recognition from the European 
 Powers at the Congress of Vienna. Further, the 
 Ottoman Porte renounced its sovereign rights over 
 the Islands and their dependencies in favour of Great 
 Britain as the Sovereign Protector by a Special Act 
 (24 April, 18 19), and by that Act recognised the 
 inhabitants of the said Isles as subjects of the Pro- 
 tecting Power, and as entitled within the Turkish 
 Empire to the benefits secured to British subjects 
 under the ancient Capitulations of Great Britain 
 with the Ottoman Porte. 
 
 ^67. The condition of Egypt, which is in theory a 
 Vilayet of the Ottoman Empire, but is practically a 
 vassal State, is the result of an International Com- 
 pact, as, although it has been in form settled by a 
 Firman under the Cypher (Tugra) of the Padichah of 
 the Ottomans addressed to Mehemet Ali Pacha on 
 Feb, 12, 1841, that Settlement was the result of an 
 agreement between the Porte and four of the Great 
 European Powers, and gave effect to a Treaty con- 
 cluded between them and the Porte on 1 5 July, 1 840. 
 Further it was approved by those Powers ^^ before it 
 was transmitted to Mehemet AH. The history of 
 Mehemet Ali, the founder of the present Egyptian 
 dynasty, is singular. He was born at Kavala in 
 Roumelia in 1769, and came to Egypt in 1803, in 
 command of some Albanian irregular troops in at- 
 tendance upon the Pacha of the day. He remained 
 in Egypt upon the Pacha's return to Europe, and 
 subsequently took part with his troops in Khosrew 
 " British and Foreign State Papers, vol. lix. p. 577. 
 
THE OTTOMAN EMPIEE. 105 
 
 Pacha's campaign against the Mamelukes. After the 
 disastrous battle of Damanhur near Cairo, he was de- 
 prived by Khosrew Pacha of his command, where- 
 upon he joined the Mamelukes, and putting himself 
 at their head drove Khosrew Pacha back to Dami- 
 etta. He shortly afterwards (1805) obtained from the 
 Porte the investiture of the Pachalik of Egypt. The 
 political power, however, of the Mamelukes still sur- 
 vived, although their military strength had been 
 broken by General Bonaparte at the battle of the 
 Pyramids (2 1 July, 1 798). The division of Egypt 
 into twenty-four Beyliks dates from the Conquest of 
 Egypt by the Turks in 1517, when the Sultan Selim 
 I, having vanquished and dethroned the last Mame- 
 luke Prince of the Circassian dynasty, converted 
 Egypt into a Turkish Pachalik, and surrounded the 
 Pacha with a Mameluke Council consisting of the 
 Governors of the twenty-four Beyliks. The Mameluke 
 Beys, who were intended to act as a salutary check 
 upon the Sultan's Eepresentative, gradually became 
 the Masters of Egypt, and so remained, until they 
 were annihilated on x March, 181 1, by the craft and 
 treachery of Mehemet Ali. It was not until after 
 that event that it became possible for the Pacha of 
 Egypt to raise the Standard of Independence against 
 the Porte. Meanwhile, during the Greek war of 
 Independence, Mehemet Ali sent troops to the assist- 
 ance of the Porte, and the Egyptian fleet under the 
 command of his adopted son Ibrahim Pacha came 
 into collision with the British, Eussian, and French 
 fleets off Navarino on 20 October, 1827. Mehemet 
 Ali was rewarded by the Porte at the close of 'that 
 war with the government of the Island of Candia.. 
 Taking advantage of the weakness of the Porte 
 Mehemet Ali determined in 1831 to make an effort 
 
106 THE OTTOMAN EMPIRE. 
 
 to obtain complete independence. His son, Ibrahim 
 Pacha, invaded Syria, and overran Asia Minor, de- 
 feating Eeschid Pacha at Konieh, and he ultimately 
 threatened Constantinople itself, when the interven- 
 tion of a Kussian Fleet, which cast anchor in the 
 Bosphorus on 20 Feb., 1833, alone saved the throne 
 of the Padichah. The Convention of Kutaya (5 May, 
 1833) put an end to hostilities, and gave to Mehemet 
 Ali the whole of Syria and the Pachalik of Adana, 
 subject however to the Suzerainty of the Porte. In 
 the war, which subsequently ensued, the victories of 
 Mehemet Ali threatened again to impair the integrity 
 of the Ottoman Empire and the independence of the 
 Ottoman Sultan's throne, which circumstance led to 
 the intervention of Great Britain, Austria, Prussia, 
 and Russia in the interests of the peace of Europe, 
 
 These Powers accordingly became parties to a 
 Quadruple Treaty with the Porte (Treaty of London, 
 15 July, 1840), under which they agreed to enforce 
 against Mehemet Ali the provisions of an arrange- 
 ment settled between themselves and the Porte, the 
 details of which were specified in a separate Act 
 annexed to the Treaty. Fortune no longer favoured 
 the arms of Mehemet Ah, and Ibrahim Pacha was 
 compelled to evacuate Syria. Mehemet Ali had there- 
 upon to renounce possession of Candia and of Syria and 
 of the Hedjaz which he had acquired by the Treaty of 
 Kutaya, and to content himself with the hereditary Pa- 
 chalik of Egypt, subject to the payment of an annual 
 tribute of 80,000 purses, France stood aloof from any 
 direct participation in this Treaty, but seconded the 
 result by her moral influence at Alexandria ^®. Accord- 
 ingly, by a Hatti Cherif of 1 2 Feb., 1 841, confirmed and 
 
 " Memorandum of M. Thiers, Oct. 1840). Martens, N. R. 
 Minister of Foreign Affairs (5, G6n6ral, I. p. 183. 
 
THE OTTOMAN EMPIRE. 107 
 
 enlarged by an Imperial Finnan of i June, 1841, Me- 
 hemet Ali was appointed Vali, or Governor-General of 
 Egypt with a right of succession secured to the eldest 
 born of his male children and grandchildren, subject, 
 however, to the nomination of the Padichah. This 
 order of succession was maintained in the case of 
 his eldest son Ibrahim Pacha, who was nominated 
 Vali in January, 1848, before his father's death, in 
 consequence of Mehemet Ali's incapacity from old 
 age, Mehemet Ali having at that time entered his 
 eightieth year. Ibrahim Pacha predeceased his aged 
 father and was succeeded in November, 1848, by his 
 nephew Abbas Pacha, the son of Toussoun Pacha, 
 who was the second son of Mehemet Ali. Abbas 
 Pacha bears the reputation of having been a vicious 
 and rapacious ruler, and he was strangled by his own 
 Kawasses in his palace at Benha on the Damietta 
 branch of the Nile. He had, however, the merit of 
 dying without debts. Said Pacha, the fourth Here- 
 ditary Vali of Egypt, was the sixth son of Mehemet 
 Ali, although he was junior in point of age to his 
 nephew Abbas Pacha. He was an enlightened and 
 capable ruler, and reigned nearly twenty years, dur- 
 ing which Egypt made great progress, although her 
 expenditure soon began to be in excess of her re- 
 venue. He contracted the first foreign loan, and 
 granted in 1856, subject to the confirmation of the 
 Porte, a Charter for piercing the Isthmus of Suez to 
 the Universal Company, over which M. Ferdinand de 
 Lesseps presides. He did not live to see the Suez 
 Canal completed, but he laid down the railways from 
 Alexandria to Cairo, and from Cairo to Suez. Said 
 Pacha died on 10 January, 1863, leaving a heavy 
 burden of debt to his successor. He was succeeded, 
 in accordance with the Firman of 1841, by Ismail 
 
108 THE OTTOMAN EMPIRE. 
 
 Pacha, the second son of Ibrahim Pacha and the senior 
 member of the family of Mehemet All, the founder of 
 the dynasty. In the third year after his succession 
 to the government of Egypt Ismail Pacha obtained 
 from the Padichah a Firman bearing date 2 May, 
 1866, by which a new order of succession was esta- 
 blished in favour of his direct heirs male in the order 
 of primogeniture. This Firman recognised the com- 
 plete autonomy of the Governor-General of Egypt in 
 all internal affairs, and authorised him to contract 
 foreign loans and to enter into Commercial treaties 
 with the agents of Foreign Powers, provided they did 
 not conflict with the political treaties of the Porte. 
 
 By a previous Firman of May, 1865 ^^ the ports of 
 Massawah and of Souakim together with the Province 
 of Taka had been granted to Ismail Pacha on the two- 
 fold condition of paying to the Government of Djeddah 
 an annual contribution of 7,500 purses, and of sup- 
 pressing the Slave trade. The Kaimakamates of Soua- 
 kim and of Massawah were declared by the Firman of 
 27 May, 1866, to be hereditary, and to pass with the 
 Government of Egypt to the heirs male of Ismail 
 Pacha. Souakim is on an island in the Ped Sea, and 
 was formerly an important depot for the Slave trade. 
 The export trade of the Soudan passes through it, 
 whilst Massawah is a neighbouring island, and is the 
 chief seaport for the produce of Abyssinia. Further, 
 by this Firman the annual tribute payable by Egypt 
 was increased from 80,000 purses to 150,000 purses, 
 and further provided for the case of the Vali dying 
 without direct heirs male, in which case the inherit- 
 ance was to pass to his eldest brother, and in default 
 of a brother surviving him, to the eldest son of his 
 eldest brother, and so on. 
 
 ^' British and Foreign State Papers, vol. Ixvii. p. 181. 
 
THE OTTOMAN EMPIRE. 109 
 
 To pass over other Imperial Firmans of minor im- 
 portance, it will suffice to notice the contents of a Fir- 
 man of JuneS, 1867, addressed "to MyiUustrious Vizier 
 Ismail Pacha, who now holds the rank of Grand Vizier 
 with the title of ' Khidev' of Egypt." By this Firman 
 the Khedive obtained the confirmation of his autonomy 
 in all matters of internal government, and was autho- 
 rised to frame such regulations as might seem to him 
 necessary in the form of a Special Tanzimat for 
 Egypt ". Further, he obtained full powers in all 
 matters relating to the police, postal, and transit ser- 
 vices, and as regards Customs duties was authorised 
 to enter into special arrangements with foreign 
 agents, provided that such arrangements should not 
 have any political signification or purport. A further 
 Firman was granted to Ismail Pacha, bearing date 
 June 8, 1873 1^, to consolidate and as it were to 
 complete the previous firmans as to the succession, 
 and further to provide for a Regency in case the 
 nearest male heir should be under eighteen years of 
 age. This Firman gave the Khedive permission to 
 maintain an unlimited number of Imperial troops, but 
 forbade him to construct ironclad ships of war with- 
 out the permission of the Sultan. Further, it autho- 
 rised him to contract without leave in the name of 
 the Egyptian Government any foreign loan which he 
 might think necessary : further, " to renew and to 
 contract (without interfering with the political trea- 
 ties of the Sublime Porte) conventions with the agents 
 
 " Hitherto the Tanzimat of Int^rieur, p. 140. Constanti- 
 
 3 Nov., 1839, which had been nople, 1874. Samwer and Hopf. 
 
 published at Gul-Hane, and was Trait6s, N. R. G6n6raL Tom. 
 
 the general law of the Empire, XVIII. p. 629. Parliamentary 
 
 had been in force ia Egypt. Paper, C. 2395. Egypt, No. 4 
 
 " Legislation Ottomane. (1879). 
 Deuxifeme Partie. Droit Public 
 
110 THE OTTOMAN EMPIRE. 
 
 of Foreign Countries for Customs and Trade, and for 
 all relations whicli concern foreigners, and all the affairs 
 of the country, internal or otherwise, with" the object 
 of developing commerce and industry, and to arrange 
 the police for foreigners as well as their position, and 
 all their relations with the Government and the po- 
 pulations." In pursuance with the powers conferred 
 by this Firman a novel international factor was in- 
 troduced into Egypt in 1875 by Ismail Pacha after 
 the details had been for seven years a subject of dis- 
 cussion with the various Christian Powers of Europe, 
 namely, a system of mixed tribunals of Justice in 
 substitution for the Consular Tribunals. The initi- 
 ation of these mixed tribunals was due to the Khe- 
 dive's Minister Nubar Pacha, an Armenian Christian, 
 who was supported by Cherif Pacha and Riaz Pacha, 
 also Ministers of the Khedive, and who acted in con- 
 cert with Aali Pacha, the Grand Vizier of the Sultan, 
 By the institution of these mixed tribunals the admi- 
 nistration of justice was made independent of the 
 Executive Government of Egypt, as well as of the 
 Foreign Consuls. To examine the constitution of 
 these Tribunals and to suggest improvements in their 
 procedure would be here out of place, but one defect 
 in them deserves to be noticed, for it was fraught 
 with serious consequences to their founder. It was 
 inevitable that questions should be brought before 
 the mixed tribunals, in which the Khedive would be 
 himself a party, and no provision was made to regu- 
 late the procedure of the tribunals in such cases, so 
 as to maintain a formal respect for the Sovereignty 
 of the Khedive, whilst substantial justice was assured 
 to the subject who sued his Sovereign. For instance, 
 in England no subject can bring a civil action against 
 the Sovereign in the same form in which he can sue 
 
THE OTTOMAN EMPIRE. Ill 
 
 a subject of the Crown, he must proceed by way of 
 Petition of Right instead of by Writ of the Crown, 
 but this exceptional method of proceeding does not 
 in any way interfere with the substantial administra- 
 tion of justice, whUst it preserves respect for the 
 Sovereign Power, In Egypt, on the contrary, the 
 mixed tribunals had no other resource in cases where 
 the Khedive was a party than to assert a power on 
 their part superior to that of the Sovereign of the 
 State, and so a conflict arose between the Courts and 
 the Executive, in which as the European Powers sup- 
 ported the Courts, the prestige of the Sovereign Power 
 was lowered. In fact, it has been said of Ismail Pacha 
 and of the judicial reforms which he introduced, that 
 he was destroyed by " his own offspring." Notwith- 
 standing the shortcomings, however, which of neces- 
 sity were to be expected in the working of these novel 
 tribunals, there can be no doubt that much good has 
 resulted from them. They were, it must be admitted, 
 a compromise between the privileged jurisdiction of 
 the foreign consuls and the corruption of the native 
 Courts, but no better proof can be given of the value 
 of the mixed tribunals than the efforts, which the native 
 population are in the habit of making, to have their cases 
 heard before them in preference to the native Courts. 
 
 Unfortunately, however, for the Khedive, his haste 
 to realise his enthusiastic schemes for placing Egypt 
 in the first, rank of civilised nations led him into the 
 grave financial error of contracting an enormous debt, 
 amounting in 1878 to more than ninety millions of 
 pounds sterling, which caused the general exaspera- 
 tion of an over-taxed people, an unpaid army, and 
 starving officials ; and in June, 1879, the Sultan was 
 induced to issue a Hatti Cherif, deposing the Khedive 
 Ismail and substituting his eldest son Tewfik Pacha in 
 
112 THE OTTOMAN EMPIRE. 
 
 his place. Ismail, upon the advice of the British and 
 French Consuls-General, submitted to the Sultan's 
 Order and abdicated the Khediviate, and by an 
 Imperial Firman of 2 August, 1879", his son Tewfik 
 Pacha was called to the Khediviate vrith the high 
 rank of " Tddaret Effectif " This Firman, however, as 
 contrasted with that of 1873, imposed certain limita- 
 tions on the autonomy of the Khedive, inasmuch as 
 Tewfik Pacha is forbidden by it to contract any 
 foreign loans save with the object of regulating the 
 existing Financial situation of Egypt, and with the 
 full assent of its existing creditors. He is also re- 
 quired to communicate to the Porte any commercial 
 treaties which he may conclude with the agents of 
 Foreign Powers before he promulgates them, and by 
 a note addressed to the British Ambassador at Con- 
 stantinople on 29 July, 1879^", the Porte has ex- 
 plained this provision of the Firman, that it is not 
 intended to require the Khedive to obtain the sanction 
 of the Porte to any such treaty before practical effect 
 is given to it, but that it reserves to the Porte the 
 right of refusing to recognise it, if it should be incon- 
 sistent with any political treaty of the Porte's. Fur- 
 ther, the money of Egypt is to be coined in the name 
 of the Sultan ; the army of the Khedive is not to ex- 
 ceed 18,000 men, except if the Porte should be en 
 gaged in war. The flag and the uniform of the troops 
 are to be identical with those of the Porte, and the 
 Khedive is not to construct any ironclad vessel of 
 war without the express authorisation of the Porte. 
 The Khedive is further prohibited from alienating 
 
 " Samwer and Hopf., Trait6s, and French Ambassadors at Con- 
 
 2me S^rie. Tom. VI. p. 508. stantinople before it was trans- 
 
 '" An official translation of mitted to Tewfik Pacha, together 
 
 the firman of Aug. 2 had been with a declaration explaining 
 
 communicated to the British the restrictions in it. 
 
THE OTTOMAN EMPIRE. 113 
 
 to others, in whole or in part, the privileges which 
 have been accorded to Egypt and entrusted to him 
 as an emanation of the prerogatives inherent in the 
 Sovereign Power, or any portion of territory. Of 
 this latter provision, the Ambassadors of France and 
 of England received a Joint Note of explanation to be 
 transmitted to their respective Governments. 
 
 § 68. The Principality of Samos occupies anPrind- 
 anomalous position amongst the tributaries of thei^^."^ 
 Ottoman Empire. The island of Samos, under the 
 territorial system of the Sultan Mahmoud 11, was a 
 Sandjak in the Vilayet of Djizair or the Isles, of 
 which the Vali or Grovernor-General resided at Rhodes. 
 The Samians had cast in their lot with the inhabit- 
 ants of the Morea in 182 1 in their struggle for Inde- 
 pendence against the Porte, and during the Conferences 
 of the Three Powers, which ultimately guaranteed the 
 independence of Greece, the President of the Pro- 
 visional Hellenic State, Count Capo dTstrias, had 
 interceded in vain to obtain a maritime frontier for 
 Greece, which would have included Samos amongst 
 the Hellenic Islands. The exclusion of Samos from 
 the limits of the new Kingdom of Greece was one of 
 the difficulties which ^prevented Prince Leopold of 
 Saxe-Coburg definitively accepting the Hellenic 
 throne. Notwithstanding the adverse decision of 
 the Three Powers, Samos continued her struggle for 
 independence, and it was not until 1835 that she 
 made her submission to the Porte in accordance with 
 the provisions of aiTirman issued by the Sultan as far 
 back as 10 December, 1832, which had been com- 
 municated to France, Great Britain, and Eussia^^. 
 The Three Powers had previously put on record their 
 
 ^^ Baron de Testa. Eecueil des Trait^s de la Porte Ottomane. 
 Tom. II. p. 399. 
 
 PART I. I 
 
114 THE OTTOMAN EMPIBE. 
 
 joint resolution in a Protocol of 20 Feb. 1830 to 
 assure to the inhabitants of the Isle of Samos their 
 protection against any act of oppression on the part 
 of the Porte. The result was a concession ^^ to the 
 Samians on the part of the Sultan of the privilege of 
 being governed by a President and Council, the 
 President to be nominated by the Sultan and to be 
 of the same religion as the Samians, and also to have 
 the title of Prince ; the Council to be chosen, accord- 
 ing to custom, from the Notables of the Island. Under 
 the Firman of the Sultan, the Samians have their own 
 mercantile flag, and the Prince has a veto on the de- 
 liberations of the Council with regard to all external 
 matters. He has also the control of the police of 
 the island, and the option of granting to foreigners 
 permission to reside there. No armed troops are 
 allowed within the island, and the island pays to the 
 Porte an annual tribute of 400,000 piastres. The 
 Metropolitan Bishop of Samos is nominated by the 
 Greek Patriarch of Constantinople. He is also Bishop 
 of Ikaria, and is a member of the Greek Orthodox 
 Church, to which almost the entire population of the 
 island belongs. It was with great reluctance and 
 under strong constraint imposed upon them by the 
 Three Powers that the Samians accepted in 1835 these 
 conditions, in accordance with which the island enjoys 
 an administrative independence in the present day. 
 Prinoi- f 69. The Hatti Cherif of Gulkhanfe, promulgated by 
 
 Bdgaril *^® Sultan Abdul Medjid on 3 November, 1839, upon 
 the advice of Eedchid Pacha, his Grand Vizier, decreed 
 the principle of civil equality amongst all the sub- 
 jects of the Ottoman Empire. The reverses, which 
 the armies of the Padichah had experienced in several 
 
 ^^ Legislation Ottomane, par Aristarchi Bey. 2^^ Partie, p. 147. 
 Constantinople, 1874. 
 
THE OTTOMAN EMPIRE. 115 
 
 campaigns against the forces of Mehemet Ali, had 
 previously suggested to Sultan Mahmoud II the 
 necessity of attaching to his throne the Christian 
 populations of his Empire, and he was also desirous 
 to prevent the emigration of his Christian subjects 
 from his dominions into the new Hellenic Kingdom, 
 These two motives wiU serve to explain the origin of 
 the change in the policy of the Porte, which was 
 initiated by Mahmoud II and continued by his suc- 
 cessor, Abdul Medjid. The Christian populations in 
 European Turkey were not confined to the Christian 
 Dependencies of the Porte, to wit, Servia and the two 
 Danubian Principalities, but they constituted the bulk 
 of the inhabitants of the ancient Bulgaria, which had 
 been divided by Mahmoud II into three Vilayets, to 
 wit, that of the Danube, Niche, and Sofia, as well as the 
 ancient Koumelia divided into four Yilayets, to wit. 
 Scodra (Scutari in Albania), Yania (Yanina), Monas- 
 tir, and Selanik (Salonica). Further, a considerable 
 Christian population of Servian origin dwelt along- 
 side of and outnumbered the Mussulman population 
 in Bosnia and Herzegovina. It is necessary to be 
 familiar with the peculiar distribution of the Chris- 
 tian populations in the European provinces of the 
 Ottoman Empire, in order to appreciate the labours 
 of the Congress of Berlin, which lasted from June 13 
 to July 13, 1878, and which has accomplished for 
 Eastern Europe a settlement, hardly less important 
 than that which the Congress of Vienna achieved in 
 1 8 1 5 for Western Europe. It should also be borne in 
 mind that the mass of the Christian populations in 
 the Vilayets above mentioned are of Slavic not of 
 Greek race, and whilst the ancient aristocracy of 
 Bulgaria and of Eoumelia has disappeared, the Bosniak 
 Beys have maintained their ascendency over the 
 
 I a 
 
116 THE OTTOMAN EMPIRE. 
 
 Christians in Bosnia and Herzegovina, and have pre- 
 vented due effect being given to the Hatti Cherif of 
 Gulkhan^ already mentioned, and to the subsequent 
 Hatti-Houmaioun of 1856, issued by the Sultan after 
 the Peace of Paris of 30 March, 1856. It was the 
 sad condition of the Christians in Bosnia and Herze- 
 govina, notwithstanding that their serfage under the 
 Bosniak Beys had been abolished by the Porte in 
 185 1, that gave rise to the troubles which led to the 
 Conferences of the European Powers at Constantinople 
 in 1877. It was attempted at those Conferences to 
 maintain the integrity of the Ottoman Empire, but 
 the Powers were unable to arrive at a common un- 
 derstanding, and a war between Russia and the 
 Porte ensued, in which the Christian Principalities 
 of the Porte threw in their lot with Russia against 
 the Suzerain Power, and succeeded in establishing 
 their independence as explained more fully in the 
 next following chapter. 
 
 To pass by the conditions under which the 
 Porte has agreed to recognise the independence of 
 Servia, of Roumania, and of Montenegro, which ac- 
 cordingly are no longer under the dominion of the 
 Ottoman Porte, important modifications have been 
 made by the Treaty of Berlin in the relations of 
 Bulgaria and of Eoumelia to the Suzerain Power. 
 By Article I of that Treaty, Bulgaria is constituted 
 an autonomous principality, paying tribute to the 
 Porte, under a Christian government, and with a 
 national militia. The Prince of Bulgaria is to be 
 openly elected by the population, and his election 
 is to be confirmed by the Porte with the assent of 
 the Signatory Powers. No member of the reigning 
 Dynasties of the Great European Powers can be 
 elected Prince of Bulgaria. A difference of religious 
 
THE OTTOMAN EMPIRE. IIT 
 
 belief cannot be objected to any person as a motive 
 of exclusion or of incapacity in what regards the en- 
 joyment of civil or political rights within the princi- 
 pality. Perfect liberty of religious worship is assured 
 to Bulgarian subjects as well as to strangers. AU 
 foreign treaties of commerce and of navigation, as 
 well as all conventions between Foreign Powers and 
 the Porte, are maintained in the Principality of Bul- 
 garia, and no change can be made in them without 
 the consent of the Power interested. The immunities 
 of the subjects of foreign powers, as well as the privi- 
 leged jurisdiction of their consular tribunals, are main- 
 tained until they shall be modified by consent. The 
 amount of tribute payable to the Suzerain Power is 
 to be settled by an accord amongst the Signatory 
 Powers, as well as the portion of the Public debt 
 of the Empire to be charged upon the Principality. 
 No Ottoman troops are to be quartered in the Prin- 
 cipality, and all the ancient fortresses are to be 
 destroyed at the expense of the Principality. Bul- 
 garian subjects who shall travel or reside in other 
 parts of the Ottoman Empire shall be subject to 
 Ottoman law. In pursuance of Article III of the 
 same Treaty of Berlin, Prince Alexander Joseph of 
 the Grand Ducal Family of Hesse, and first cousin of 
 the reigning Grand Duke of Hesse, was unanimously 
 elected Prince of Bulgaria on 29 April, 1879 by a 
 Constituent Assembly. He assumed the reins of 
 government on 28 June, 1879, under the title of 
 Prince Alexander I. 
 
 § 70. By Article XIII of the same treaty of Berlin, 
 a province has been formed to the South of the 
 Balkans, under the name of Eastern Koumelia. 
 This province is under the direct political and mili- 
 tary authority of his Imperial Majesty the • Sultan, 
 
118 THE OTTOMAN EMPIRE. 
 
 under the conditions of administrative autonomy, 
 ■with a Christian Governor-General, who is to be 
 nominated by the Porte for a period of five years 
 ■with the assent of the Signatory Powers. The 
 Porte is to have a right of garrison in the fortresses, 
 but no troops are to be quartered on the inhabitants, 
 and internal order is to be maintained by a native 
 body of armed police. The Governor-General may 
 invoke the aid of Ottoman troops to maintain the 
 internal or external security of the Province, but- 
 notice of any necessity which justifies such aid 
 shall be given to the Signatory Powers. Further, 
 an European Commission is to organize, in accord 
 with the Ottoman Porte, an administrative con- 
 stitution for Eastern Roumelia. All the Treaties 
 and Conventions concluded between the Porte 
 and Foreign Powers apply to Eastern Eoumelia. 
 Foreigners are to have the same privileges and 
 immunities as in other parts of the Ottoman Empire, 
 and religious liberty is assured to every form of 
 worship. It will be seen that the international 
 checks upon the exercise of the Porte's Sovereignty 
 over Eastern Roumelia are very slight. The Signatory 
 Powers have a consultative voice in the appointment 
 of a Governor-General, who must be a Christian, and 
 the Sultan has admitted an obligation on his part 
 towards the European Powers of maintaining perfect 
 religious liberty within the limits of the Province of 
 Eastern Eoumeha, as specified in Article XIV of the 
 Treaty of Berlin. 
 The § 71. The condition of the Lebanon has been one 
 
 of almost continuous civil warfare between the Ma- 
 ronites and the Druses, since the evacuation of Syria 
 by Mehemet Ali, which took place in 1841 ^^ in con- 
 *' British and Foreign State Papers, vol. 1. p. 6. 
 
 Lebanon. 
 
THE OTTOMAN EMPIRE. 119 
 
 sequence of the intervention of the Four Christian 
 Powers, pursuant to the Treaty of London of 1840. 
 At last, in i860, the Five Christian Powers, France 
 having again joined the European Concert, deter- 
 mined to co-operate with the Porte in effecting a 
 Pacification of Syria, and in pursuance of a Conven- 
 tion signed at Paris, Sept. 5, i860, a body of 
 European troops in conjunction with a fleet by sea 
 accomplished the object of the Convention, and in 
 the following year a Conference of the Five Powers 
 in conjunction with Turkey was held at Constanti- 
 nople. In pursuance of a Protocol adopted by this 
 Conference, the Porte issued an Organic " Kfeglement 
 pour I'Administration du Liban," dated 9 June, 
 186 1 2*, under which it was arranged that the 
 Lebanon henceforth should be administered by a 
 Christian Governor-General, nominated by the Porte 
 under a previous understanding with the Christian 
 Powers. This E^glement was in fact the work of an 
 International Commission, and after various amend- 
 ments had been introduced by the Conference, it 
 was finally accepted by the Representatives of the 
 Christian Powers and promulgated by His Imperial 
 Majesty the Sultan under the form of a Firman, 
 In accordance with this Protocol the Governor- 
 General of the Lebanon was to hold office for three 
 years. At the end, however, of the first three years a 
 Conference of the Six Powers was assembled at Con- 
 stantinople, and agreed to a further confirmation of 
 the then Governor-General in his post for five years. 
 A still further change was made in the tenure of 
 the Governor-General's office, at a Conference held 
 
 ^* British and Foreign State tens, Traitfe, N. E. G. Tom. 
 Papers,, vol. li. p. 288. Mar- XVII. part ii. p. 107. 
 
120 THE OTTOMAN EMPIRE. 
 
 at Kanlidja on 15 July, 1868 ^^ when it was agreed 
 that the duration of the Mandate of Franco Nasri 
 Pacha should not be less than ten years. Sub- 
 sequently, in consequence of the death of Franco 
 Nasri Pacha, a Conference of the Powers was held 
 at Constantinople, 22 April, 1873 ^^ and the Five 
 Christian Powers recorded their assent by antici- 
 pation to the nomination of Rustem Pacha for a 
 period of ten years. The term of this last-named 
 Wali expired in the present year, and Wasa Effendi, 
 an Albanian Catholic, has been proposed by the Porte 
 and has been accepted by the Five Powers at a Con- 
 ference held in Constantinople. The Governor-General 
 of the Lebanon, under the terms of the Rfeglement- 
 Organique of 186 1, has plenary Administrative Power, 
 nominates the executive and judicial officers, collects 
 the revenue, which is fixed at 3500 purses, out of 
 which the expenses of the administration are to be 
 defrayed, and the balance only, if any, is to be re- 
 mitted to the Porte. In fact, the E-feglement Organique, 
 to which are subscribed the names of the represent- 
 atives of all the Six Powers, is a Charter of the 
 Liberties of the Mountain. 
 He'^lgo"'^ $72- The conditions of the Provinces of Bosnia 
 ■v'na- and Herzegovina are somewhat anomalous, as they 
 are under the provisions of the Treaty of Berlin, to 
 be occupied and administered by Austria-Hungary, 
 and Austria-Hungary has reserved to herself the 
 right of garrison and of free military communication 
 throughout the Sandjak of Novibazar, which extends 
 between Servia and Montenegro. The administration 
 of this Sandjak in other respects is to be exercised by 
 the Porte. The Peace of San Stefano had provided that 
 
 2= British and Foreign State Traites, N. R. G. XVIII. p. 233. 
 PaperSjVol.lxi. p. 1029. Martens, "* StatePapers,vol.lxiii.p. 227. 
 
THE OTTOMAN EMPIRE. 121 
 
 the European proposals communicated to the Ottoman 
 Porte in regard to these Provinces in the First Sitting 
 of the Conference of Constantinople, 1877, should 
 be at once introduced, subject to such modifications 
 as should be agreed upon between Eussia, Austria- 
 Hungary, and the Porte. Those proposals involved 
 an administrative autonomy of the widest kind, under 
 a Governor-General named by the Porte, for five 
 years, with the assent of the European Powers, the 
 autonomy itself to be under the control of an Inter- 
 national Commission. This proposed arrangement 
 fell to the ground with other contemplated arrange- 
 ments submitted to the Powers represented in those 
 Conferences. Meanwhile, on the breaking out of 
 war between Russia and the Porte, in which Servia 
 and Eoumania took part, Austria-Hungary, with 
 a view to prevent an internecine conflict between 
 the , Christian and Mussulman population of Bosnia 
 and Herzegovina, efiected a military occupation of 
 the two Provinces on her own responsibility. The 
 future conditions of that occupation are expressly 
 reserved by Article XXV of the Treaty of Berlin to 
 a common understanding between Austria-Hungary 
 and the Porte. 
 
 § "J 2,- The International Status of the Island of Cyprus. 
 Cyprus bears some analogy to that of Bosnia and 
 Herzegovina, with the exception that the Status of 
 the latter Provinces has been formally recognised in 
 an Act of the Congress of Berlin, to which the Porte 
 was a party, whereas that of Cyprus is founded on 
 a Treaty of Alliance between Great Britain and the 
 Porte. The preliminaries of the Peace, which the suc- 
 cessful campaign of 1877 had enabled Russia to 
 impose upon the Porte at San Stefano, under which 
 Ardahan, Kars, Batoum, Bayazid; and the territory 
 
122 THE OTTOMAN EMPIRE. 
 
 as far as Saganlougli (Art. XIX), were ceded to Eussia 
 as an equivalent for a portion of the indemnity 
 claimed by Eussia for the expenses of the war, were 
 considered by Great Britain to give to Eussia not 
 merely the most important Eastern port of the Black 
 Sea and the possession of the Frontier fortresses, but 
 also the control over the transit of trade from Trebi- 
 sonde to Persia, which would be highly detrimental 
 to the Turks. Eussia, in a Memorandum sighed at 
 London 30 May, 1878, agreed to renounce her claim 
 to Bayazid and the Valley of Alashkert, along which 
 the great caravan route of commerce runs between 
 Trebisonde and Persia. She did not however assent 
 to reduce in other respects the proposed extension 
 of her frontier, and Great Britain did not hesitate to 
 avow to Eussia that she foresaw in the future great 
 danger to the tranquillity of the populations of 
 Turkey in Asia as the result of that extension, and 
 further, that she reserved to herself the right to take 
 such measures as she might think necessary to protect 
 her own interests and her own influence over those 
 populations. The result was that on 4 June, 1878, 
 Great Britain concluded an Alliance with the Porte 
 of the following tenor : — 
 
 " If Batoum, Ardahan, Kars, or any of them shall 
 be retained by Eussia, and if any attempt shall be 
 made at any future time by Eussia to take possession 
 of any further territories of his Imperial Majesty the 
 Sultan in Asia, as fixed by the definitive Treaty of 
 Peace, England engages to join His Imperial Majesty 
 the Sultan in defending them by force of arms. 
 
 " In return, His Imperial Majesty the Sultan pro- 
 mises to England to introduce necessary reforms, to 
 be agreed upon later between the two Powers, into 
 the Government and for the protection of the Chris- 
 
THE OTTOMAN EMPIRE. 123 
 
 tian and other subjects of the Porte in these terri- 
 tories ; and in order to enable England to make 
 necessary provision for executing her engageme]^ 
 His Imperial Majesty the Sultan further consents to 
 assign the Island of Cyprus to be occupied and ad- 
 ministered by England ^l" 
 
 The Congress of Berlin commenced its deliberations 
 on 13 June, 1878. Its main object was to settle 
 a definitive Peace between the Porte and Russia, 
 and the Asiatic frontier between the two countries 
 was the subject of discussion on 6 July, 1878. Russia 
 on this occasion maintained her frontier line in ac- 
 cordance with the Memorandum of 30 May, 1878, 
 but made one further concession in announcing her 
 intention to declare Batoum to be a Free-port of 
 Commerce. The result was that Batoum, Ardahan, 
 and Ears were retained by Russia, and the contin- 
 gency was not realised under which the Treaty of 
 Alliance between England and the Porte would have 
 been at an end, inasmuch as an Annexe had been 
 appended to the Treaty of 4 June, pending the 
 Session of the Congress, of this tenor : — 
 
 " Art. VI. If Russia restores to Turkey Kars and 
 the other conquests made by her in Armenia during 
 the last war, the Island of Cyprus will be evacuated 
 by England, and the Convention of 4 June, 1878, 
 wiU be at an end." 
 
 It appears from a Dispatch from the Marquis of 
 Salisbury to Sir A. H. Layard, the British Ambas- 
 sador at Constantinople, of May 30, 1878 ^^ that it 
 was not the intention of Great Britain to ask the 
 
 '■^ N. E. G6n6ral des Trait^s. Correspondence respecting the 
 
 Samwer and Hopf. 2^^ S6rie. convention between Great Bri- 
 
 Tom. III. p. 272. tain and Turkey of June 4, 1878. 
 
 »' Turkey, No. 36 (1878). Parliamentary Papers, 1878. 
 
124 THE OTTOMAN EMPIRE. 
 
 Sultan by the above Treaty to alienate territory 
 from bis Sovereignty, or to diminish the receipts 
 m|iich pass into his Treasury. They therefore pro- 
 posed that while the administration and occupation 
 of the Island shall be assigned to the Queen of 
 Great Britain, the territory shall still continue to 
 be part of the Ottoman Empire, and that the excess 
 of revenue over the expenditure, whatever it might 
 at that time be, shall be paid annually by the British 
 Government into the Treasury of the Sultan. Ac- 
 cordingly the third Article of the Annexe provides 
 that England shall pay to the Porte whatever is the 
 present excess of revenue over expenditure in the 
 island ; this excess to be calculated upon and deter- 
 mined by the average of the last five years, as stated 
 to be 22,936 purses, to be duly verified hereafter and 
 to the exclusion of the produce of State or Crown 
 lands let or sold during that period. 
 
 The scope of this Convention was further explained 
 in a letter from the Marquis of Salisbury to M. Wad- 
 dington, tbe French Minister of Foreign Affairs, of 
 7 July, 1878, in which his Lordship says, "How 
 long the occupation will continue it is impossible to 
 foresee, but Her Majesty's Government are not with- 
 out hope that Russian Statesmen will in due time 
 satisfy themselves, that the territory they have ac- 
 quired is costly and unproductive, will recognise the 
 futility of any plans which in any quarters may have 
 been formed for making it a stepping-stone to future 
 conquests, and will abandon it as an useless acqui- 
 sition. 
 
 " In that case our raison d'etre at Cyprus will be 
 at an end, and we shall retire '^^." 
 
 ^^ Turkey, No. 48 {1878). Parliamentary Paper. 
 
CHAPTEE V. 
 
 THE KINGDOMS OF THE LOWEB DANUBE. 
 
 « 
 ■ The ancient Principality of Servia — Treaties of Sistova, Bucha- 
 rest, Adrianople, and Ackerman — Organic Statute of Servia, 1838 
 — Its status under the Treaty of Paris of 1856 — Anomalous rela- 
 tions of Servia to the Porte after 1876 — Its independence recog- 
 nised under the Treaty of Berlin of 1878 — The Prince recognised 
 by the European Powers as King in 1882 — Ancient Principalities 
 of Walachia and Moldavia — Treaties of Carlovitz, Kutschuk- 
 Kainardji, Bucharest, Adrianople, and St. Petersburg — Convention 
 of Balta-Liman — Treaty of Paris, 30 March, 1856 — Subsequent 
 changes in the status of Walachia and Moldavia — Union of the two 
 Principalities into one State under the name of Eoumania in 1 865 — 
 Its independence recognised by the Porte and by the European 
 Powers in 1878 — Retrocession by Eoumania of territory in Bess- 
 arabia previously ceded by Russia under Treaty of Paris of 1856 
 — The Prince of Eoumania recognised as King in 1881 — The 
 Principality of Montenegro — Treaties of Carlovitz, Passarovitz, and 
 Sistova — Congress of Paris of 1856 — The independence of Monte- 
 negro acknowledged by the Porte under the Treaty of San Stefano 
 of 3 March, 1 87 8, and generally recognised by the Signatory Powers 
 of the Treaty of Berlin on 13 July, 1878. 
 
 § 74. An improved organization of the Christian The Pnn- 
 Dependencies of the Ottoman Empire situated in ^^^ll^ °^ 
 Europe was one of the objects in view, when a general ^"^f"^ 
 Treaty of Peace was signed at Paris on 30 March, Servia. 
 1856, between Great Britain, Austria, France, Prussia, 
 Kussia, Sardinia and Turkey, and when it was thought 
 desirable and practicable to maintain the integrity of 
 the Ottoman Empire. Those Dependencies had al- 
 ways maintained relations with the Porte of a differ- 
 ent character from those of the Mahommedan Depen- 
 dencies. They consisted of the Principality of Servia, 
 
126 THE KINGDOMS OF THE LOWER DANUBE. 
 
 the two Danubian Principalities as they were some- 
 times termed, namely, Walachia and Moldavia, and 
 the Prince-Bishopric of Montenegro. Servia is the 
 most important of these States, whether we regard 
 its political antecedents, or its present military power. 
 The Servians in the Twelfth Century had laid the 
 foundation of an Empire, which underwent rapid de- 
 velopment and which embraced, in the middle of the 
 Fourteenth Century prior to the Ottoman Invasion, 
 all Macedonia, certain towns in Thessaly and Albania, 
 and portions of Thrace. The Independence of Servia 
 terminated with the disastrous battle of Kossova, 
 (15 June, 1389,) after which event its territory was 
 divided by its Ottoman conquerors into various Pa- 
 chaliks, the chief of which was established at Bel- 
 grade. It was not until the commencement of the 
 present century, (anno 1804,) that the Servians 
 awakened to the recollection of their former Inde- 
 pendence, and rose in insurrection against the Janis- 
 saries of Belgrade, who in defiance of the stipulations 
 Treaty of of the Treaty of Sistova ^ (4 August, 1 79 1 ) had re- 
 4'Au™' occupied Servia and were perpetrating cruelties of 
 1791- the most atrocious character. The Servians, under 
 the leadership of Kara George, and with the counte- 
 nance of the Porte itself, succeeded in expelling the 
 Janissaries out of Servia, and afterwards finding their 
 newly acquired liberty too sweet to be relinquished, 
 resolved to establish a National Government with 
 Kara George as its Chief (Vosd). The Russian Go- 
 vernment had meanwhile undertaken to advocate the 
 cause of the Servians with the Porte, and when war 
 broke out in 1806 between Eussia and the Porte, the 
 Servians having successfully laid siege to Belgrade, 
 joined their forces to those of Russia. I'he peace of 
 ' Martens, Kecueil, Tom, V. p. 244. 
 
THE KINGDOMS OF THE LOWER DANUBE. 127 
 
 Bucharest (28 May, 1812^) left the Servians practi- Treaty of 
 cally at the mercy of the Porte, although Eussia had fg^Ma^?'" 
 made certain highly favourable stipulations on their '812. 
 behalf in her treaty with the Porte, and Servia was 
 thereupon once more reduced to the condition of a 
 Turkish Province. But the spirit of Independence 
 amongst the Servians was not extinguished. It 
 broke forth at intervals, was countenanced by Russia, 
 and at last, with the support of that Power, Servia 
 obtained from the Porte the recognition of its admi- 
 nistrative Independence, in pursuance of the provi- 
 sions of the Treaty of Adrianople^ (14 Sept. 1829) Treaty of 
 concluded between Russia and the Ottoman Porte. Mp"eTi4 
 This recognition took place under the form of a Sept. 1829. 
 Hatti Cherif, (29 Nov. 1829,) in which the Sultan 
 declared, that having regard to the Treaties of Bu- 
 charest and Adrianople, as well as to the Convention 
 of Ackerman*, (7 Oct. 1826,) and likewise to the Treaty of 
 prayers of the Servians, who had always been faithful ^ oct™*"' 
 subjects of his Empire, he had accorded to them the ''®^^- 
 liberty of Christian Worship, and an Independent 
 Internal administration, with various other privileges 
 in accordance with the provisions of a separate Act 
 annexed to the Treaty of Ackerman. The political organic 
 Constitution of Servia was subsequently settled by f^^^ °^ 
 an Organic Statute, issued by the Sultan in 1838. 
 This Statute conferred the Sovereignty of the Province 
 upon Prince Milosch and his family, the princedom 
 being declared to be hereditary in his family ; and 
 after enumerating other matters of detail, conferred 
 upon him (A) the nomination of public functionaries, 
 (B) the command of the troops, (C) the powers of 
 the Exequatur, (D) the collection of the taxes, (E) 
 
 ' Martens, N. K. Tom. III. ' Ibid. VIII. p. 116. 
 p. 197. * Ibid. VI. p. 1053. 
 
128 THE KINGDOMS OF THE LOWER DANUBE. 
 
 the control of the provincial authorities, (F) the 
 jurisdiction over criminals. At this period, (anno 
 1829,) -when Lord Ponsonby on behalf of Great Bri- 
 tain was suggesting certain modifications in the Or- 
 ganic Statute, the Sultan refused to recognise any 
 title in Great Britain to interfere in the affairs of 
 Servia, but admitted the right of Russia under her 
 treaties with the Porte to exercise a voice. The Treaty 
 of Parish (30 March, 1856,) placed the estabhshed 
 relations between Servia and the Ottoman Porte 
 under the collective guaranty of aU the Powers 
 which were parties to that treaty. The Suzerainty 
 of the Porte, and its right of garrison as heretofore, 
 were maintained on the one hand ; whilst, on the 
 other hand, the Principality of Servia retained its 
 National and administrative Independence, as well 
 as full liberty of worship, legislation, commerce, and 
 navigation ; nor could any armed intervention take 
 place in Servia without a previous accord amongst 
 the High Contracting Powers. It would be out of 
 place in the present treatise to follow the fortune of 
 Prince Milosch and his family; it will be sufficient to 
 have traced the International vicissitudes of the Prin- 
 cipality, and to have shown how its present anoma- 
 lous state of International transition is founded upon 
 Treaty-engagements between the European Powers 
 and the Emperor of the Ottomans, in his character of 
 Suzerain. 
 Servia. ^75- To pass over intermediate events of minor 
 
 importance, it may be sufficient to state that on 22 
 June, 1876, Prince Milan Obrdnovitch, who had been 
 proclaimed Prince of Servia on 2 July, 1868, upon the 
 pretext of defending the Christian populations of 
 Bosnia and Herzegovina against the violent oppres- 
 ^ Martens, N. R. General, XV. p. 770. 
 
THE KINGDOMS OF THE LOWER DANUBE. 129 
 
 sion of the Bosniak Beys, demanded from the Porte 
 its authorisation to take military possession of those 
 two provinces and to administer them permanently, 
 which the Porte refused. War thereupon ensued 
 between the Porte and the Principality, which was 
 brought to a close by a Convention re-establishing the 
 Status quo ante on 28 February, 1877, of which event 
 formal cognisance was taken by the Christian Powers, 
 which were parties to the Treaty of Paris (1856), in 
 a Protocol signed at London on 31 March, 1877. 
 This peace was of short duration, as Servia again 
 declared war against Turkey on 14 Dec. 1877, on the 
 ground that the Porte had not given full effect to the 
 provisions of the Treaty of Peace of the previous 
 month of February. The Porte thereupon issued a 
 Proclamation on 20 Dec. 1877, declaring that Prince 
 Milan had forfeited his title to the throne of the 
 Principality. These anomalous relations between 
 Servia and the Porte were put an end to by the 
 Treaty of San Stefano concluded on 3rd March, 1878, 
 between Eussia and the Porte, by the third article of 
 which Treaty the Porte recognised the Independence 
 of Servia. The Independence of the Principality ob- indepen- 
 tained an European recognition from the Powers sub- gervia. 
 sequently assembled in Congress in Berlin, who un- 
 dertook, in conformity with the Stipulations of the 
 Treaty of Paris (1856), to which they were parties, 
 to regulate in the interest of European Order the 
 questions, which had arisen in the course of the wars 
 between the Ottoman Porte and Russia, to which 
 war the Treaty of San Stefano had put a provisional 
 termination. The result of the deliberations of the 
 Powers in regard to Servia was embodied in Article 
 XXXIV of the Treaty of Berlin of 13 July, 1878, 
 which recognised the independence of Servia subject 
 
 PAKT I. K 
 
130 THE KINGDOMS OF THE LOWER DANUBE. 
 
 to the condition of all religious confessions being 
 The King- allowed Complete liberty and civil equality. The 
 Se™ia! Prince Milan Obrenovitch has since assumed the title 
 of King by a Decree of 6 March, 1882, and his title 
 of King of Servia has been recognised by the Euro- 
 pean Powers. 
 ThePrin- §76. The Principality of Walachia had paid tribute 
 miachfa" to the Ottoman Porte since the commencement of 
 daviSw *^® Fifteenth Century, although the Sultans were 
 the King- not really masters of Walachia until the death of 
 Eoumania. Wlad, (auDO 1 46 1,) the last Independent Prince. 
 From this period down to 1521, Walachia was go- 
 verned by its own Voievodes, elected by the Boyards 
 and confirmed by the Sultan. Soleiman I, whose 
 brilliant reign has earned for him from Christian his- 
 torians the titles of the Great and the Magnificent, 
 but whom the Ottomans have distinguished by the 
 more modest epithet of the Lawgiver, determined to 
 add Walachia substantively to his Empire, and to 
 place over it a Governor of his own choice. He 
 accordingly appointed Mohammed Bey to the post 
 of Sandjakhey of Walachia. This personage, having 
 lulled the Boyards into security by a Treaty, in 
 which he guaranteed to them their ancient privileges, 
 caused the Prince, whom they had elected according 
 to custom, to be assassinated at the moment when 
 the Sultan's Commissary pretended to instal him into 
 office. So flagrant an atrocity led to the armed in- 
 tervention of the Hungarians under Jean Zapolya, 
 and the Sultan was induced, after a series of disas- 
 trous conflicts, to restore the Principality to its an- 
 cient condition of a tributary State under an elective 
 Prince. Moldavia, on the other hand, had recognised 
 the Sovereignty of the Ottoman Porte in 15 16, and 
 after the campaign of Vienna, Earesch, Prince of 
 
THE KINGDOMS OF THE LOWER DANUBE. 131 
 
 Moldavia, did homage to the Sultan Soleiman I, and 
 received from him a diploma which secured to the 
 Christian population the liberty of rehgious worship, 
 and conferred upon the Boyards the election of the 
 Prince, subject to the ratification of their choice by 
 the Sultan, and to the condition of paying an annual 
 tribute at Constantinople. The fortunes of Moldavia 
 were for a short time mixed up with those of Tran- 
 sylvania, which latter province upon the conclusion 
 of the peace of Sitvatorok, (ii Dec. 1606,) had also Peace of 
 become a tributary State of the Ottoman Empire f^BecT'"' 
 under the government of an Elective Prince. Soon '^°^- 
 after that event the Estates of Transylvania elected 
 Gabriel Bethlen to be their Voievode, (anno 161 3,) 
 who being supported by the Porte in his schemes of 
 territorial aggrandisement against Hungary, but not 
 daring to place upon his own head the ancient Crown 
 of St. Stephen, endeavoured to found a new Empire. 
 In this policy Gabriel Bethlen was supported by 
 England, France, Holland, and the Republic of 
 Venice, and was even permitted by the Sultan to 
 enter directly into political treaties with those 
 Powers. The Emperor Ferdinand II was ultimately 
 fain to conclude two successive treaties^ with Ga- 
 briel Bethlen as an Independent Prince : and upon 
 the re-establishment of peace between the Emperor 
 and the Sultan, Gabriel Bethlen demanded for him- 
 self from the Porte the investiture of the princi- 
 palities of Moldavia and Walachia, with the title of 
 King of Dacia. The death of Gabriel Bethlen, which 
 happened soon afterwards from natural causes, opened 
 the way to great changes in the condition of the 
 Principalities. Ralccoczy was elected to the oflSce of 
 Voievode by the Estates of Transylvania, and his 
 ° Von Hammer, Histoire de I'Empire Ottoman, IX. p. 118. 
 
 K Z 
 
132 THE KINGDOMS OF THE LOWER DANUBE. 
 
 election was confirmed by the Ottoman Porte. Mol- 
 davia on the other hand, and Walachia, which had 
 hitherto been governed by native Princes, became a 
 prey to the avarice of the Viziers of the Porte, and 
 to the intrigues of Greek and other adventurers, who 
 pretended successively to the Crown of Dacia''. 
 Treaty of The Treaty of Carlo witz* (anno 1699) deprived 
 annoTegg. the Ottoman Porte definitely of its Suzerainty over 
 Transylvania, and soon afterwards the Boyards of 
 Moldavia were authorised by the Sultan to choose 
 as Hospodar (or Farmer of the Province) one of 
 themselves (3 Oct. 1703). The Voievodeship of 
 Walachia was meanwhile sold for the most part to 
 the person who ofiered the highest rent as Hospodar, 
 and gave the most costly presents to the Grand 
 Vizier. The two Principalities were now and then 
 granted to one and the same person, but the in- 
 stances of this twofold Investiture are very rare. 
 Treaty of ^ T7- Such is an outHue of the political vicissitudos 
 chuk-Kai- through which the two Danubian Principalities have 
 nardji. passed, prior to the Treaty of Kutschuk-Kainardji', 
 (10 July, 1774). By this treaty, the Empress Catha- 
 rine of Russia agreed to restore to the Porte the pro- 
 vince of Bessarabia, and the Principalities of Mol- 
 davia and Walachia, which the Eussian armies had 
 overrun. The stipulations in favour of the Princi- 
 pahties were peculiar. It was provided that the in- 
 habitants should have the free exercise of the Christian 
 Eeligion, and that the Prince of each Principality 
 should be allowed to maintain a Charg^ d' Affaires at 
 Constantinople, to superintend the affairs of each 
 
 ' Moldavia was ruled succes- Greek, (anno 1620 — 1631.) 
 
 BJvely by Yankoul a Saxon, (anno * Schmauss, Corp. Jur. p. 
 
 1580,) Qratiani, a Croat, (anno 1133. 
 
 1618,) Bernawski, a Pole, (anno " Martens, Kecueil, II. p. 
 
 1626,) and Alexander Elias, a 286. 
 
THE KINGDOMS OF THE LOWER DANUBE. 133 
 
 Principality, and who should be entitled to the privi- 
 leges of an Envoy under the Law of Nations. The 
 Porte also consented that the Russian Ambassador at 
 Constantinople might advocate the cause of the Prin- 
 cipalities, if circumstances required it ; and promised 
 to listen to him with respect and favour. An expla- 
 natory Convention was subsequently signed at Con- Conven- 
 stantinople (lo March, 1779"), in which the right of constLti- 
 the Porte to levy tribute from the Principalities was ??p'%'° 
 submitted to certain regulations. By the next fol- 1779. ' 
 lowing Treaty of Bucharest, (28 May, 181 2 'S) the Treaty of 
 Ottoman Porte ceded to Eussia those portions of^g^May?'' 
 Moldavia which lay on the left bank of the Pruth ; '^"• 
 which river was to be henceforth the boundary of the 
 Ottoman and Kussian Empires. The subsequent 
 Treaty of Adrianople (14 Sept. 1829) made an im- Treaty of 
 portant change in the International Status of the nopkTi4 
 Principalities. The Fifth Article, which referred to ®®p'' '^^9- 
 Moldavia and Walachia, as being under the Suze- 
 rainty of the Porte and the Guaranty of Russia, 
 stipulated that they should enjoy an Independent 
 National administration, and full liberty of commer- 
 cial intercourse, with special reference to certain pro- 
 visions contained in a separate Act annexed to the 
 Treaty. Under this Act it was provided that the 
 office of Hospodar should be an office for life ; sub- 
 ject in other respects to the regulation of the separate 
 Act of the Convention of Ackerman^^ (7 Oct. 1826). Conven- 
 By the latter Act, which purported to explain the^° teaman. 
 Treaty of Bucharest, it had been provided that the 
 Hospodars should not be dismissed from their office 
 by the Porte, without the permission of Eussia ; and 
 
 " Martens, Eecueil, II. p. 653. 
 
 " Martens, Nouveau Eecueil, III. p. 397, 
 
 " Martens, K E. VIII. p. 143. 
 
134 THE KINGDOMS OF THE LOWER DANUBE. 
 
 the Russian Consuls were empowered concurrently 
 with the officers of the Porte to remonstrate with the 
 Hospodars, if they should infringe in any manner the 
 privileges of the Country in regard to taxes and 
 other imposts. The -Porte further undertook by the 
 Treaty of Adrianople, (14 Sept. 1829,) that no Mus- 
 sulman should set foot in the Principalities except 
 for temporary purposes of commerce ^^. The Internal 
 administration of the two Principalities was to be 
 perfectly Independent, and their Governments were 
 authorised to raise a native militia for the purpose of 
 enforcing the Quarantine regulations, protecting the 
 frontiers, maintaining peace and order, and exe- 
 Treaty of cutiug the laws. By a subsequent Treaty signed at 
 burg, 29 St. Petersburg, (29 Jan. 1834,) and kept secret for 
 Jan. 1834. gQjK^g ^i^g 34^ ii ,^^3,8 agreed that the Hospodars should 
 for that turn be nominated according to an agreement 
 betweeit-Russia and the Porte ; and it was further sti- 
 pulated that the Porte should give regimental colours 
 to the native militia which kept garrison in the Inte- 
 rior of the two Provinces ; and a flag for the Walacho- 
 Moldavian merchant vessels navigating the Danube. 
 Conven- The last Convention which it is necessary to notice is 
 Baita°Li- that of Balta Liniani^, (i May, 1849,) under which 
 Ts^g^^^^' I^iissia and the Porte by common consent suspended 
 the existing political Constitution of the Principalities, 
 as established by the Organic Statute of 183 1, and 
 made arrangements for a Commission of Boyards to 
 submit a new political Constitution for the mutual 
 
 " Martens, N. E. VI. p. 1053. torial) between Russia and Tur- 
 
 " This circumstance may ac- key, (1774 — 1849,) presented to 
 
 count for this treaty not being both Houses of Parliament by 
 
 found in any general collection command of her Majesty, 1854. 
 
 of treaties. It occurs amongst '^ Martens, N. R. General, 
 
 the Treaties (Political and Terri- XIV. p. 378. 
 
THE KINGDOMS OF THE LOWER DANUBE. 135 
 
 approval of the two Courts. Meanwhile Eussian and 
 Ottoman troops were to occupy the Principalities, 
 and the two Courts were to have each an extraordi- 
 nary Commissioner resident in the Principalities, 
 These Commissioners were to offer their advice and 
 counsel in common to the Hospodars, and were to 
 agree together in selecting the Commission of Boy- 
 ards to revise the Constitution. It was further pro- 
 vided that all the previous treaties confirmed by the 
 separate Act of the Treaty of Adrianople should retain 
 their full force and effect, 
 
 ^78, It is difficult in examining the Convention of 
 Balta Liman to appreciate the political relations 
 under which the two contracting Powers respectively 
 claimed to deal with the Internal affairs of the Prin- 
 cipalities. It is recited in the preamble, that they 
 act in a spirit of fidelity to their antecedent engage- 
 ments, which secure to the Principalities the privi- 
 leges of a distinct administration and certain other 
 local immunities ; and that it has become necessary 
 to adopt by common agreement extraordinary and 
 effectual measures for the protection of those immu- 
 nities and privileges, which the Principalities ought 
 to enjoy, in virtue of solemn treaties concluded be- 
 tween Russia and the Sublime Porte. It would thus 
 seem that the right of joint action on the part of the 
 Two Powers was held to rest on antecedent Treaty- 
 engagements, under which they were called upon to 
 exercise a joint Protectorate over the Principalities. 
 The Sixth Article reserved to the two Courts the 
 right at the expiration of seven years to take into 
 consideration the then existing State of the Princi- 
 palities, and to determine upon the ulterior measures 
 which they might judge most suitable, to ensure 
 their well-being and tranquillity. No allusion was 
 
136 THE KINGDOMS OF THE LOWER DANUBE, 
 
 made throughout this Convention to the Sovereignty 
 of the SubKme Porte, and the two Imperial Courts 
 were to have in substance an equal voice in directing 
 the pohtical action of both Principahties. The es- 
 tablishment of a Eussian Resident in each Princi- 
 pality by the side of an Ottoman Resident, with a 
 right of political action within a certain sphere, as 
 distinguished from the commercial agency of a Con- 
 sul, was ostensibly a step in the direction of recog- 
 nising the Independence of the Principalities. On 
 the other hand, as each Resident was entitled under 
 the treaty to advise and counsel the Hospodars, each 
 Power possessed an indirect *right to control the In- 
 ternal administration of the Principalities. The right 
 of the Sultan indeed rested upon ancient Capitula- 
 tions with the Principalities themselves, whereas the 
 right of the Emperor of Eussia rested upon Conven- 
 tions with the Sultan ; who may be thus taken to 
 have bound himself by treaty to share with Russia 
 the active duties of the- Suzerainty, which he exercised 
 under the Capitulations. 
 Treaty of , § yg. Such was the peculiar (Sta^iis of the Danubian 
 Principalities before the Treaty of Paris of 1856. 
 Their political relations were certainly ambiguous, 
 but there is no difl&culty in arriving at the conclusion 
 that they were not Members of the Family of Nations. 
 They had not the right of Legation under the Law 
 of Nations, for the reception of their Resident Charges 
 d' Affaires at Constantinople was exceptional, and their 
 functions were regulated by a special convention 
 between, the Porte and Eussia ; they had not the 
 right of Alliance, as all public treaties respecting the 
 Principalities were concluded between their Suzerain 
 and Foreign Powers. The Consuls maintained by _ 
 Foreign Powers at Bucharest and Galatz were ac- 
 
THE KINGDOMS OF THE LOWER DANUBE. 137 
 
 credited to and received their Exequatur from the 
 Sublime Porte, and no political or commercial agents 
 on behalf of the Hospodars had ever been received by 
 Foreign Courts. The conditions of the Principalities 
 in all these respects were not in any way changed by 
 the Treaty of Paris '« (30 March, 1856). By Article 
 XXII, the Principahties of Walachia and Moldavia 
 were to continue to enjoy under the Suzerainty of the 
 Porte and the Guaranty of the Contracting Powers 
 the privileges and immunities of which they were in 
 possession. No exclusive Protection was to be exer- 
 cised over them by any of the Guaranteeing Powers, 
 nor was any Power to have any special right to inter- 
 fere in their internal affairs. By Article XXIII, the 
 Sublime Porte engaged itself to secure the Princi- 
 palities an Independent and National administration, 
 as well as perfect liberty of worship, legislation, com- 
 merce, and navigation ; and after the opinion of the 
 Representatives had been taken as to the definitive 
 organization of the two provinces, the Porte under- 
 took to confirm that organization by a Hatti-Cherif, 
 and the Provinces were henceforth to remain under 
 the collective guaranty of all the Contracting Powers. 
 The Principalities were to have a National army to 
 maintain public order and to protect their frontiers, 
 and no armed intervention could take place without 
 a previous agreement amongst the Powers who had 
 signed the Treaty of Paris. 
 
 § 80. The organization of the two Danubian Prin- 
 cipalities has undergone a fundamental change since 
 the Treaty of Paris of 1856. By a Convention of 
 19 August, 1858, between the two Principalities, 
 a Central Commission was established, charged with 
 maintaining an uniformity of legislation in matters 
 "= Martens, N. K. G6n6ial, Tom. XV. p. 770- 
 
138 THE KINGDOMS OF THE LOWER DANUBE, 
 
 of common interest. In 1859 the Assemblies of the 
 two Principalities concurred in electing Prince Alex- 
 ander Couza as Hospodar of the two Principalities, 
 and the Porte, by a Firman of 4 Dec. 1861, in concert 
 with the guaranteeing Powers, established an union 
 of the two Governments and of the two Assemblies, 
 which was to terminate however with the govern- 
 ment of Prince Couza. Finally the Porte, with the 
 concurrence of the guaranteeing Powers, recognised 
 in 1864 the rights of the Principalities to modify their 
 internal administration, saving always the rights of 
 Moldavia the Suzerain Power. The immediate result of this 
 chia united concession ou the part of the Suzerain Power was 
 titko/''^ that the two Principalities united themselves into 
 Eoumania. one State Under the title of Roumania in 1865, 
 Prince Couza having abdicated the Princely Throne 
 of Roumania ^^ shortly after that event, the Powers 
 who were parties to the Treaty of Paris of 1856, 
 assembled in Conference at Paris on 10 March, 1866, 
 in order to examine the questions which the vacancy 
 in the Hospodariate had given rise to ; and whilst 
 Eoumania the Powcrs Were stiU in Conference, the Roumanian 
 rwn'gdom. peoplc by a plebiscite elected Prince Charles Louis 
 of Hohenzollern-Sigmaringen to be Prince of the 
 United Principalities under the name of Charles I. 
 The European Powers after some hesitation recognised 
 the election of Prince Charles, and the Porte granted 
 him its investiture on 23 Oct. 1866. In the following 
 year a rupture of friendly relations took place between 
 the Porte and Roumania, and from 3 June, 1867, 
 the Principality declared itself to be independent of 
 the Porte. It followed the fortunes of Russia in the 
 ensuing war, and its independence was recognised 
 
 ^' On 23 Feb., 1866, Eecueil par le Baron de Testa. Tom. V. 
 des Trait^s de la Porte Ottomane, p. 5 1 4. 
 
THE KINGDOMS OF THE LOWEB, DANUBE. 139 
 
 by the Porte under Article V of the Peace of San 
 Stefano (3 March, 1878). The European Powers sub- 
 sequently recognised the Independence of Eoumania 
 under Article XLIII of the Treaty of Berlin (13 July, 
 1878), subject to the same conditions of religious 
 liberty and civil equality as were stipulated in the 
 case of Sei-via. Prince Charles has since that Treaty Roumania 
 assumed the title of King of Eoumania, in accordance TkLgdoui. 
 with the unanimous vote of the people of the United 
 Principalities, on 26 March, 1881, and his title of 
 King has been recognised by the European Powers. 
 He was crowned on 22 May, 1881. 
 
 A somewhat important change was made under 
 Article XLV of the Treaty of Berlin (1878) in the 
 territorial arrangements sanctioned by the Treaty of 
 Paris (1856). The Principality of Eoumania ceded Retrooes- 
 back to Eussia the portion of the territory of Bess- ^^a^ of a 
 arabia, which had been detached from Eussia under g"^'™"^ 
 
 1 m /»•!->• 1 Bessarabia. 
 
 the Ireaty of Pans, 1856, limited to the West by 
 the mid-channel of the Eiver Pruth, and to the 
 South by the mid-channel of the Kilia branch of 
 the Danube, and the embouchure of Stary-Stamboul. 
 Under the preliminaries of the Peace of San Stefano 
 Turkey had agreed to cede to Eussia the Sandjak 
 of Toultcha on the South side of the Danube, in- 
 cluding the Cazas of Kilia, Soulina, Mahmoudie, 
 Isaktcha, Toultcha, Matchin, Babadagh, Hirsovo, 
 Kustendje, and Mehjidi^, together with the Isles of 
 the Delta of the Danube and the Island of Serpents. 
 Eussia reserved to herself the right of exchanging 
 the territory above specified for the portion of Bess- 
 arabia detached from Eussia under the Treaty of 
 Paris of 1856, and limited on the South by the 
 Thalweg of the Kilia branch of the Danube and the 
 embouchure of Stary-Stamboul. This exchange on 
 
140 THE KINGDOMS OF THE LOWEE, DANUBE. 
 
 the part of Russia was approved by the Powers in 
 Article XL VI of the Treaty of Berlin, 1878, and in 
 addition there was assigned to Eoumania the territory 
 South of the Dobroutcha, bounded by a line drawn 
 Eastwards from Silistria to the Black Sea, at a point 
 South of Mangalia ". Further allusion will be made 
 to this arrangement in a subsequent chapter on the 
 navigation of Great Rivers. 
 ThePrin- § 8 1. Monteuegro, or Tzernegdra, as it is styled 
 Moutene- in the language of the native people, is a small State, 
 ^°- which formed in 1856 an integral part of the Ottoman 
 
 Empire. It is called by the Ottomans Karadagh, which 
 has the same meaning as Tzerneg6ra, namely, the 
 Black Mountain ; the name of the people in their 
 own language is TzernegdrkL Montenegro was con- 
 sidered by the Ottomans to be a department of the 
 Pachalik of Scutari. It was originally a district of 
 Servia, when that Country was ruled by its own Kings, 
 and it was governed by a Prince dependent on the 
 Servian Monarch. After the Conquest of Servia by 
 the Ottomans (anno 1389), the Princes of the Family 
 of Tzernoievich maintainedfor a considerable time their 
 Independence, but the Ottoman Armies having over- 
 run Albania and obtained possession of Herzegovina, 
 George Tzernoievich with the consent of the people 
 transferred the Government of Montenegro into the 
 hands of the Bishop, and withdrew to Venice (anno 
 1 5 16). Since that period the Spiritual and the 
 Temporal Powers were vested in a Prince Bishop, 
 The Via- who was entitled the Vladika, which signifies Prince 
 Princr *^^ Ruler. This Office, although de jure elective, has 
 Bishop, been in practice hereditary in the Family of Petrovich 
 since the close of the Seventeenth Century, but as 
 
 " Samwer and Hopf., Traite, 2™e S6rie. Tom. III. p. 253. Ibid, 
 p. 463. 
 
THE KINGDOMS OP THE LOWER DANUBE. 141 
 
 every Vladika is consecrated Bishop and cannot 
 marry, the succession has always passed to a nephew, 
 or such other member of the famUy as might happen 
 to be the next heir. The Ottomans during the 
 Sixteenth Century made frequent inroads into the 
 Country, but failed to establish themselves in it, 
 and it was not until A.D. 1623 that Soleiman, Pacha 
 of Scutari, succeeded in penetrating to Tzetenie, the 
 Capital, when the Supremacy of the Sublime Porte 
 was in name estabUshed over the Black Mountain. 
 The Ottomans, however, have never been able to re- 
 main in possession of the Country, and the Montene- 
 grins have been always ready to co-operate with the 
 Venetians, or with the Austrians, in their wars against 
 the Porte. By the Treaty of Carlovitz^' (anno 1699) Treaty of 
 Montenegro appears to have been left by the Otto- ^ "" ^' 
 mans under the Protectorate of Venice. By the 
 Treaty of Passarovitz (anno 1718)^° it was in terms Treaty of 
 ceded back by Venice, and became again subject to vitzr™" 
 the Porte, and its dependence on the Porte was re- 
 cognised by Austria in the Treaty of Sistova^^ (anno Treaty of 
 1 791), when the latter Power stipulated that the 
 Montenegrins should not be molested or punished by 
 the Porte for having declared against their proper 
 Sovereign. Kelations of a very singular kind were 
 estabhshed in 1 706 between the Montenegrins and 
 the Emperor Peter the Creat of Eussia. The Mon- 
 tenegrins placed themselves formally under the Pro- 
 tection of Russia and took the oath of allegiance to 
 the Czar, since which period it has been usual for the 
 successor of each Vladika to receive consecration at 
 St. Petersburg, and his consecration as Bishop has 
 been a virtual investiture of his office as Vladika. It 
 
 " Schmauss, Corp. Jur. p. 1133. " M. p. 1740- 
 
 21 Marens, Kecueil, Tom. V. p. 244. 
 
142 THE KINGDOMS OF THE LOWER DANUBE. 
 
 is stated by some writers that the Vladika, who 
 succeeded in 1830, refused the Episcopal dignity and 
 was a lay Chief. The more correct account is as 
 follows : — On the death of Pietro I. on the 30th Oct., 
 1830, his nephew whom he had recommended as his 
 successor, being only fifteen years of age, was ad- 
 mitted into Holy Orders, but being too young to take 
 the reins of Government, or to receive the Episcopal 
 dignity, a locum tenens was appointed, and Sr. Ivano- 
 vich was sent from St. Petersburg to govern the 
 Country, until the consecration of the new Vladika. 
 This took place at St. Petersburg on i8th August, 
 1833 ^^ after which the youthful Vladika returned to 
 his own Country and carried on the Government until 
 his death in 185 1, when he was succeeded by Daniel I, 
 The Prince who pcrishcd by the hand of an assassin in i860. It 
 negrono^ was the late Prince Daniel I, whose early education 
 Kshop ^^^ carried on at Vienna and not at St. Petersburg, 
 who once more separated the secular functions of the 
 office of Prince from the spiritual functions of the 
 office of Bishop. His Code of Laws^* promulgated at 
 Tzetenie, 23 April, 1855, purports to be issued under 
 the hand of Daniel Prince of Montenegro and Prince 
 of Berda, the latter title being taken from the Eastern 
 division of the Country. 
 
 Since the Peace of 18 1 5 the Montenegrins have been 
 constantly at war with the Ottoman Porte, and the 
 latter Power has made the most determined efforts to 
 reduce them to submission both in 1839 and in 1852. 
 On the latter occasion Russia and Austria employed 
 
 '^ "Wilkinson's Dalmatia and Daniel! I. Fiirsten und Gebieters 
 
 Montenegro, I. p. 464. von Montenegro und der Berda. 
 
 ^'^ A German translation of Wien, 1859. Verlag von Frie- 
 
 this Code has been published at derich Manz. 
 Vienna under title of Gesetzbuch 
 
THE KINGDOMS OF THE LOWER DANUBE. 143 
 
 their good offices on behalf of the Montenegrins, 
 whUst France and Great Britain counselled the Porte 
 to respect the de facto Independence of Montenegro, 
 without abandoning its de jure Title over the Country. 
 The Montenegrins, however, failed to obtain any im- 
 provement of their international Status through the 
 good offices of the Christian Powers who took part 
 in the Congress of Paris (1856), when the Ottoman Congreae 
 Plenipotentiaries took occasion to declare that "the "[fg^^ 
 Sublime Porte considers Montenegro to be an integral 
 part of the Ottoman Empire, but that it has no in- 
 tention to alter the actual state of things in that 
 Country 26," During the interval which elapsed 
 between the Peace of Paris of 1856 and the Treaty 
 of San Stefano, the relations between the Prince of 
 Montenegro and the Ottoman Porte have been re- 
 peatedly troubled, but the Porte always succeeded 
 in maintaining its Sovereignty over the Principahty 
 until Montenegro declared war overtly against Turkey 
 on 2 July, 1876, from sympathy with the insurrection 
 in Herzegovina. In the correspondence 2" which en- 
 sued between Austria-Hungary and the Porte, in 
 consequence of the former Power objecting to the 
 Porte's use of the harbour of Klek for belligerent 
 purposes, Austria-Hungary intimated her opinion, 
 that as the Prince of Montenegro neither received 
 investiture from the Porte nor paid tribute to the 
 Porte, he was to be considered de facto independent 
 of the Porte (30 July, 1876). The Christian Powers 
 who had been parties to the Treaty of Paris, 1856, 
 felt themselves called upon in the course of the follow- 
 ing autumn to attempt to mediate between the Porte 
 
 ^^ Protocols of Conferences 25 '^^ Kecueil General des Trait^s, 
 and 26 March, 1856. Martens, par Samwer et Hopf. 2™e 
 N. R. G6n6ral, XV, p. 736, 738. S6rie. Tom. III. p. 26. 
 
144 THE KINGDOMS OP THE LOWER DANUBE. 
 
 and the Principality, and they endeavoured in a 
 series of Conferences held at Constantinople (11-22 
 Dec, 1876), to reestablish relations of peace between 
 them on the basis of the Status quo ante, subject to 
 a certain rectification of the frontier of the Princi- 
 pality and to the concession to it on the part of the 
 Porte of the free navigation of the River Bojana, so 
 as to afford to the Principality access to the Sea, 
 from which it had been hitherto debarred. Upon 
 the failure of the Christian Powers to come to a 
 satisfactory imderstanding with the Porte as to the 
 amelioration of the condition of its Christian subjects 
 generally in Bosnia, Herzegovina, and Bulgaria war 
 was declared by Eussia against the Porte on 24 April, 
 1877, and the result was that the Porte was compel- 
 led by a series of reverses to agree to the conditions 
 of the Treaty of San Stefano of 3 March, 1878". 
 Under Article II of this treaty the Sublime Porte 
 recognised definitively the independence of the Princi- 
 pality of Montenegro. A more general recognition of 
 its Independence on the part of the European Powers 
 was subsequently placed on record in Article XXVI 
 of the Treaty of Berlin of 13 July, 1878 ^^ and perfect 
 liberty of religious worship was at the same time 
 assured to all the inhabitants of the Principality. It 
 was further provided in Article XXIX, by which 
 Antivari and its coast was annexed to Montenegro, 
 that the port of Antivari and all the waters of Mon- 
 tenegro should be closed against the war-vessels of 
 all nations. Montenegro was also forbidden to have a 
 war-flag or to keep any vessels of war. Austria-Hungary 
 undertook meanwhile that her light-guardships should 
 maintain the police of the Montenegrin Coast. 
 
 ^^ Nouveau Kecueil G6n6ral, par Martens et Samwer. 2™® S6rie. 
 Tom. III. p. 246. ''^ Ibid. p. 449. 
 
CHAPTER VI. 
 
 SOURCES or THE LAW OF NATIONS. 
 
 Natural and Positive Law — Natural Law of Nations — Positive or 
 Voluntary Law of Nations— Vattel's Subdivision of Positive Law — 
 Customary and Conventional Law — Identity of the Law of Nations 
 with the Law of Nature, according to Hobbes and Puffendorf — The 
 Law of Nations a Special Science, according to De Wolff and 
 Vattel — Essential Difference between Nations and Individual Hu- 
 man Beings — The Law of Nature — Identical Natural Law of Eude 
 and Civilised Nations — Growth of the Positive Law of Nations — 
 Study of the Law of Nations in England — Courts of the Law of 
 Nations — Customary or Consuetudinary Law of Nations — Customary 
 Relations with Non-Christian Powers Exceptional — The Primary 
 Principles of European Public Law applied to Mahoramedan States 
 — The Diplomatic Science — Conventional Law of Nations — Views 
 of Martens and others contrasted with those of Schmalz and others 
 — Ortolan's View of the Effect of Conventions on General Law — 
 Wheaton's Earlier and Later Views — Illustration as to Contraband 
 of War — Declaration of Maritime Law at Paris, i6 April, 1856 — ■ 
 Preambles and Recitals of a Declaratory Character — Objections to 
 the Idea of any Law, as such, between Nations — International 
 Morality distinct from the Law of Nations. 
 
 ^82. The proper and immediate subjects of the Natural 
 Law of Nations being those political communities tive Law. 
 which are in a state of Independence, and the test of 
 their Independence being their aptitude or capacity to 
 discharge the obligations of Natural Society towards 
 other political communities and to regulate the mode 
 of discharging those obligations without the consent 
 of any Political Superior, the rules which result 
 from their mutual relations, and which govern their 
 intercourse, resolve themselves into Natural rules and 
 Positive rules, and the aggregate body of those rules, 
 which admit of being enforced, constitute the Law of 
 
 PART I. L 
 
146 SOURCES OF THE LAW OF NATIONS, 
 
 Nations in the most extensive sense of the term. The 
 Law of Nations accordingly divides itself into Natural 
 or Necessary Law, and Positive or Instituted Law ^ 
 Natural ^83. The Natural Law of Nations is founded on 
 
 NaTio°ns. the Nature of Independent States, as such, and is the 
 result of the relations observed to exist in Nature 
 between Nations as Independent Communities^. The 
 Positive Law of Nations, on the other hand, is based 
 on the consent of Nations, and is the result of the 
 relations instituted between them by their own free 
 will. The sanction of the Natural Law of Nations is 
 found in the fact that its violation terminates the ex- 
 istence of an Independent State, as such. The sanc- 
 tion of the Positive Law of Nations is found in the 
 isolation of the State which disregards it. The obli- 
 gation of the former is involuntary, whereas the obli- 
 gation of the latter is consensual ', and the consent 
 of Nations to it is either substantially evidenced by 
 
 ^ Natural Law, according to A priori, si ostendatur.rei alicu- 
 
 Puffendorf, is that whicli is so jus convenientia aut disconveni- 
 
 exactly fitted to suit with the entia neoessaria cum natura ra- 
 
 rational and social nature of man, tionali et social!. A posteriori 
 
 that human kind cannot maintain vero, si non certissima fide, certe 
 
 an honest and peaceful Fellowship probabiliter admodum, juris na- 
 
 without it. Positive Law, on the turalis colligitur id, quod apud 
 
 other hand, he writes, is some- omnes gentes, aut moratiores 
 
 times called by the name of Vo- omnes tale esse creditur. Nam 
 
 luntary, because no positive law universalis effectus universalem 
 
 has such an agreeableness with requirit causam ; talis autem 
 
 Human Nature as to be neces- existimationis causa vix ulla 
 
 Sary in general for the preserva- videtur esse posse prseter sensum 
 
 tion of mankind, or as to be ipsum, communis qui dicitur. 
 
 known or discovered without the Grotius de Jure Belli et Pacis, 
 
 help of express and peculiar pro- L. I. c. i. § 12. 
 
 mulgation. Law of Nature and * Pacto obligamur ; lege obli- 
 
 of Nations, B. I. c. 4. § 18. gati tenemur. Pactum obligat 
 
 ^ Esse autem aliquid juris na- per se ; lex obligatum tenet vir- 
 
 turalis probari solet ab eo quod tute pacti universalis de prse- 
 
 prius est, tum ab eo quod poste- standa obedientia. Hobbes, De 
 
 rius, quarum proband! rationum Civ. Imperium, c. 14. § 2. 
 ilia subtilior est, hsec popularior. 
 
SOUECES OF THE LAW OF NATIONS. 147 
 
 their unvarying practice, or has been formally re- 
 corded in some Public Act or Convention. 
 
 § 84. Grotius in constructing his system of Public Positive or 
 Law had perceived that certain rules of International LiTw'of*'^^ 
 Life, which were universally observed, could not be ^a'»<"^s- 
 fairly deduced from any admitted principles of Na- 
 tural Eight. He concluded accordingly that they 
 had been introduced by the Consent of Nations, and 
 rested upon Custom and tacit Compact (moribus et 
 pacto tacito introductum*). It was this entire Body 
 of Law which Grotius comprised under the head of 
 Jus Gentium Voluntarium or Jus Constitutum ^. De 
 Wolff, on the other hand, distinguished the Jus Volun- 
 tarium from the Jus Paditium and Jus Consuetudi- 
 narium, and whilst Grotius considered the Voluntary 
 Law of Nations to be based upon the general consent 
 of Nations as evidenced by their practice, De Wolff 
 regarded it as a body of rules deduced from the 
 nature of the Social Union amongst Nations, and 
 from the operation of which no civilised Nation can 
 withdraw itself De Wolff accordingly held the Vo- 
 luntary Law of Nations to be universally binding 
 upon civilised Nations, whilst the obligation of theCus- 
 tomary Law of Nations was hmited to those Nations, 
 amongst whom it had been established by long usage. 
 
 De Wolff in establishing the foundations of that 
 species of the Law of Nations, which he termed Vo- 
 
 * Sed sicut cujusque civitatis ^ Grotius divided Voluntary, 
 jura utilitatem suse civitatis re- as distinguished from Natural 
 spiciunt, ita inter civitates aut Law, into law directly instituted 
 omnes aut plerasque ex consensu by God and law instituted by 
 jura qusedam nasoi potuerunt, et Man, but he considered the in- 
 nata apparent, quse utilitatem stituted Law of God, as far as 
 respicerent non ccetuum singulo- Nations are regarded, to be con- 
 rum, sed magnse illius universita- fined to the Jewish Nation. De 
 tis. De Jure Belli et Pacis, Jure Belli et Pacis, L. I. c. i. 
 Proleg. § 17. § 15, 16. 
 
 L a 
 
148 SOUHCES OF THE LAW OF NATIONS. 
 
 luntary, had assumed the existence of a Great Com- 
 monwealth (Civitas Maxima) ^ of which all civilised 
 nations were members. The Jus Gentium Volunta- 
 rium accordingly occupied a place in the Great Com- 
 monwealth analogous to that which the Jus Civile 
 holds in Individual States. 
 
 Vattel, however, has not followed De Wolff in his 
 fiction of a Great Commonwealth of Nations ; he holds 
 that fiction to be neither very just nor very solid, but 
 he has retained the division of Voluntary Law as dis- 
 tinct from Customary and Conventional Law. Vattel 
 however does not agree with De Wolff in the grounds 
 upon which the latter rests the obligation of Voluntary 
 Law ; on the contrary, he regards it as a branch of 
 Positive Law derived from the presumed consent of 
 Nations, whilst he rests the Conventional Law upon 
 their express consent, and the Customary Law upon 
 their tacit consent. As there can be no other mode of 
 deducing any law fi"om the will of Nations, there are 
 only, he says, these three Species of Positive Law. 
 Subdivi- § 85. This threefold subdivision of the Positive Law 
 sXe'Law! of Natious, which Vattel has popularised, is objection- 
 able in principle, and it is at the same time prac- 
 tically inconvenient. It is objectionable in principle, 
 as it involves what Logicians term a cross-division, 
 for Conventional and Customary Law are evidently 
 subordinate branches of Voluntary Law, and it will 
 tend rather to confuse than to elucidate the subject, 
 if we should class them by the side of Voluntary Law 
 as coordinate Species of one and the same Genus. In 
 the second place, the threefold subdivision is prac- 
 tically inconvenient, for certain rules of international 
 
 ' Civitas, in quam Gentes coi- Civitas Maxima. Jus Gentium, 
 visse intelliguntur, et cujus ipsae § 10. 
 sunt membra, sive cives, vocatur 
 
SOURCES OF THE LAW OF NATIOKS. 149 
 
 intercourse which Vattel, following the authority of 
 De Wolff, ranks under the head of Voluntary as dis- 
 tinguished from Conventional and Customary Law, 
 would seem rather to partake of the character of Na- 
 tural Law, as they are derived from the natural rela- 
 tions of independent political societies. For instance, 
 in discussing the foundation of Voluntary Law Vattel 
 says '', " It is therefore necessary on many occasions 
 that Nations should suffer certain things to be done, 
 though in their own nature unjust and condemnable, 
 because they cannot oppose them by open force with- 
 out violating the liberty of some particular States, 
 and destroying the foundation of their natural society. 
 And since they are bound to cultivate that Society, 
 it is de jure presumed, that all Nations have con- 
 sented to the principle which we have just established. 
 The rules which are deducible from it constitute 
 what De Wolff calls the Voluntary Law of Nations." 
 It is obvious, however, that Nations are under a na- 
 tural obligation to refrain from all acts which tend to 
 destroy their Natural Society. A scrupulous respect 
 for the independence of Individual States, evidenced 
 by a systematic abstinence from all encroachments 
 upon that independence, is a necessary condition of 
 Permanent Fellowship amongst Nations. Non-inter- 
 ference to such an extent would thus seem to be a 
 natural law of international hfe, and it is superfluous 
 to presume a consent of Nations as an authority for 
 the rule of such Non-interference. On the contrary, 
 we should rather weaken the s'anctions of such a rule, 
 if we were to class it under, the head of Voluntary as 
 opposed to Necessary Law, and were to suppose it to 
 rest upon the will of Nations rather than to be essen- 
 tial to their Fellowship. Voluntary Law, as a matter of 
 ' Droit des Gens, Preliminaires, § 21. 
 
150 SOURCES OF THE LAW OF NATIONS. 
 
 fact, ends where the Independence of Nations becomes 
 imperilled, and it is not an optional matter to respect 
 the liberty of individual Nations, when a disregard for 
 that liberty would entail the dissolution of interna- 
 tional Society. 
 Customary ^ 86. The identification of the Voluntary Law of 
 ventionai Nations with the entire body of Instituted or Positive 
 ^^' Law, and the employment of the term Voluntary Law 
 to designate a Genus, of which Conventional and Cus- 
 tomary Law are the Species, has been approved by the 
 more distinguished American Jurists. Mr. Wheaton* 
 observes, that it is almost superfluous to point out 
 the confusion in Vattel's enumeration, of the different 
 species of International Law, wliich might easily 
 have been avoided by reserving the expression Volun- 
 tary Law of Nations to designate the Genus, includ- 
 ing all the rules introduced by positive consent for 
 the regulation of international conduct, and divided' 
 into the two species of Conventional and Customary 
 Law. To the same effect Mr. Justice Story has ob- 
 served, " By the Law of Nations we understand not 
 merely that portion of Public Law which is generally 
 recognised amongst Nations, (as seems to have been 
 the prevailing use of the phrase in the -Roman Code,) 
 but that portion of the Public Law which regulates 
 the intercourse, adjusts the rights, and forms the basis 
 of the Commercial and Political Eelations of States 
 with each other. Perhaps the most appropriate name 
 would be International Law, Jus inter Gentes. It has 
 in this view been correctly subdivided into three sorts, 
 first, the Natural or Necessary Law of Nations, in 
 which the principles of Natural Justice are applied to 
 -the intercourse between States ; secondly, the (7ms- 
 tomary Law of Nations, which embodies those usages 
 * Elements of International Law, c. i. § 9. 
 
SOURCES OF THE LAW OF NATIONS. 151 
 
 wliich the continued habit of Nations has sanctioned 
 for their mutual interest and convenience ; and thirdly, 
 the Conventional or Diplomatic Law of Nations, which 
 embraces positive compacts by treaties and conven- 
 tions between Nations, and derives its sole obligation 
 from the same sources as other contracts. Under 
 this last head many regulations will now be found 
 which had first resulted from custom or a general 
 sense of justice, and are now made of positive obliga- 
 tion for the purpose of preventing National disputes 
 and collisions '." 
 
 f 87. The Natural Law of Nations is capable of identity 
 being distinguished from the Law of Nature, which °f ^srations 
 ffoverns the mutual relations and the intercourse of 7'*^ '5® 
 
 Y , , , Law 01 Na- 
 
 individual human beings. Hobbes" and Puffendorf ^^ ture, ac- 
 have maintained the identity of the rules, which Hobbes 
 result from the natural relations of States, with those ^orff "^^°' 
 which result from the natural relations of individual 
 men, considering Nations to be aggregate bodies of 
 human beings, having in the mass rights and obliga- 
 tions, which difier only in degree from those which 
 /the individuals have in their several capacities. Ac- 
 cording to this view there is no distinct Science of 
 the Law of Nations. But these writers in maintain- 
 ing that Natural Law, such as it is in reference to 
 individual human beings, is identical with the Natural 
 Law which governs the intercourse of Nations, have 
 not discriminated sufficiently between Law and the 
 Principles of Eight which are embodied in Law. The 
 Principles of Right (Droit) are beyond doubt invari- 
 able, but the mode in which those principles are 
 
 " Story's Miscellaneous Writ- c. 14. § 4. 
 ings, p. 536. " On the value and " Puffendorf, Law of Nature 
 
 importance of Legal Studies." and of Nations, L. III. c. 3. 
 
 ^^ Hobbes, De Civ. Imperium, § 23. 
 
152 SOUECES OF THE LAW OF NATIONS. 
 
 applied and developed undergoes infinite variations in 
 
 accordance with the varying nature of the subjects to 
 
 which they must be adapted. Law is, in fact, not an 
 
 • abstract principle of Duty or Eight, but a System of 
 
 applied principles. 
 
 The Law ^ 88. Barbeyrac, the translator and commentator 
 
 a special both of Grotius and of Puffendorf, in combating the 
 
 cordiror to' notion of a Positive Law of Nations, which he treats 
 
 De Wolff as "a chimera," and in contending that the principles 
 
 and Vattel. * p -ht • i i 
 
 and rules oi the Law oi Nations are the same as those 
 of the Law of Nature, is constrained to admit that there 
 is a difference with respect to the mode in which 
 those principles are applied in the two Laws'^^. De 
 Wolff developed this doctrine more fully, perceiving 
 that Nations were Composite Bodies, having in their 
 collective capacities a Moral Being of their own, which 
 in its nature and essence differed in many respects 
 from the Moral Being of the individuals which com- 
 posed the Nation". Vattel followed in the direct 
 track of De Wolff: "A State," he writes, "is a 
 subject very different from an individual of the human 
 race, from which circumstance, pursuant to the Law 
 of Nature itself, there result in many cases very dif- 
 ferent obligations and rights, since the same general 
 rules applied to two subjects cannot produce exactly 
 the same decisions when the subjects are different, and 
 a particular rule, which is perfectly just with respect 
 to one subject, is not applicable to another subject of 
 quite a different nature. There are many cases, there- 
 fore, in which the Law of Nature does not decide 
 between State and State, as it would between Man 
 
 ^* Note on Grotius, De Jure plicatio eorundem ad Gentes, 
 
 Belli et Pads, L. I. c. i. § 14. quse diversitatem quandam parit 
 
 ^' Jus Gentium, Prolegomena in eo, quod infertur, quatenus 
 
 § 3. Alia enim sunt principia natura Gentis non est eadem 
 
 Juris Naturae, alia vero est ap- cum natura humana. 
 
SOURCES OF THE LAW OF NATIONS. 153 
 
 and Man. We must therefore know how to accom- 
 modate the application of it to different objects, and 
 it is the art of thus applying it with a precision 
 founded on right reason, which renders the Law of 
 Nations a distinct and special Science ^*. 
 
 ^ 89. A Nation is essentially an Independent Po- Essential 
 htical Society, whereas an individual human Being is between^ 
 a Dependent Member of a Political Society, It is ob- Nations n 
 
 ,/. 1 . .., ,. , , and Intti- 
 
 vious therefore, that certain principles which may be viduai 
 applied absolutely to the intercourse of Nations by bebJgsi! 
 reason of their mutual independence, can only be ap- 
 plied sub modo to the intercourse of individual citizens; 
 for instance, the principle of self-preservation is appli- 
 cable to the mutual relations both of Nations and of 
 individual human beings, but its application results in 
 very different rules in the one case and in the other. 
 Thus a Nation may freely confederate with other 
 Nations against a common neighbour, but the prin- 
 ciple of self-preservation may not be carried out in the 
 same absolute manner by the individual members of 
 a Political Society. What would be a perfectly law- 
 ful League in the case of Nations, might be an unlaw- 
 ful combination amongst individual citizens. Again, 
 the principle of suum cuique is applicable in the miost 
 absolute manner to Nations, but its application to the 
 individual members of a Pohtical Society is modified 
 by a variety of considerations arising out of the rela- 
 tions which have been estabhshed between the indivi- 
 duals and the Society of which they are members, and 
 is conditional upon its adaptation to. those relations. 
 
 § 90. Man is sometimes spoken of as living in a The Law- 
 state of Nature when he is living under the rudest ° **"'^' 
 forms of physical life, and the law of his existence 
 under such forms is by certain writers laid down to 
 " Droit des Gens, Prdliminaires, § 6. 
 
154 SOURCES or THE LAW OE NATIONS. 
 
 be the Law of Nature applicable to human beings. 
 Such a view of the Law of Nature would indeed 
 harmonize in substance with the Jus Naturale of 
 Ulpian, who defines it to be that Law which Nature 
 teaches all animals". In a still looser sense men 
 speak of the Law of Nature in regard to inanimate 
 things. Thus it is said to be the Law of Nature 
 that vegetables grow with their roots downwards 
 and their stalks upwards, or to use the more fc- 
 curate language of art, "that a seed in vegetating 
 directs its radicle downwards and its plumule up- 
 wards." It is likewise said to be the Law of Na- 
 ture that matter lighter than water floats upon 
 its surface, as well as that water rises to the level 
 from which it flows. But when men speak of the 
 Law of Nature in this sense, they only mean to de- 
 note an universal fad, and the conformity of indivi- 
 dual cases to the general rule is that which is said to 
 constitute the Law of Nature. Thus the Jus Natu- 
 rale of the Eoman Jurists represents little more than 
 a general fact traceable to the instinct of physical 
 life, and the illustration which is given, e.g. conjunctio 
 maris et foeminae ", is applicable to the vegetable as 
 well as to the animal world. 
 Identical ^91- The Law of Nature, in the sense in which 
 L^w^of Writers on International Jurisprudence apply the 
 S'vSsed^ term, corresponds in the main not with the Jus Na- 
 Nationa. turale of the Eoman Jurist, but with that division of 
 law which is described in the Institutes'^, as "the 
 law which Natural Keason teaches all mankind." 
 Whether we regard man in a rude state of what is 
 
 " Jus Naturale, quod natura apud omnes peraeque custoditur, 
 
 omnia animalia docuit. Inst, vocaturque Jus Gentium, quaM 
 
 L. I. Tit. II. quo jure omnes gentes utuntur. 
 
 " Quod Naturalis Ratio in- Inst. L. I. Tit. ii. 
 
 ter omnes homines constituit, id *' Just. Ijist. L. I. Tit. lo. 
 
SOURCES OF THE LAW OE NATIONS. 155 
 
 termed savage life, or in a refined state of what is 
 called civilised society, the one condition being equally 
 natural with the other, the law which Reason sug- 
 gests to him in either case will be equally the Law 
 of Nature. It is accordingly not necessary to adopt 
 a distinction which has been introduced by certain 
 writers upon the authority of Von Ompteda ^^ be- 
 tween the Absolute Natural Law and the Modified 
 Natural Law. 
 
 Mr. Eeddie 2° in commenting upon this subdivision 
 of Natural Law, has happily observed, that the Inter- 
 national Law of civilised Nations is as natural, and 
 results as much from the le^al relations actually 
 existing in nature amongst those Nations as the 
 International Law of rude Nations, and that as 
 Von Ompteda rests his Modified Natural Law of 
 States upon the general conviction of civilised Na- 
 tions, there is really no ground for propounding it as 
 a separate species of International Law distinct from 
 what is viewed as the Primary Natural and Necessary 
 Law of Nations. 
 
 ^92. It was not until the Peace of Westphalia Growth 
 that suflScient materials were forthcoming for reduc- siti*re w 
 ing into a system the Positive or Instituted Law ^of Nationa. 
 Nations. The principal writers during the Seven- 
 teenth Century had treated almost exclusively of the 
 Natural Law of Nations, and the followers of Puifen- 
 dorf, who expounded the Law of Nations entirely 
 from the Law of Nature, were at the end of that 
 Century the predominant school on the Continent 
 of Europe. The contemporaneous English School of 
 International Jurists was, on the contrary, always of 
 a practical character. This was partly attributable to 
 those common causes, whatever they may be, which 
 " ■ Litt. des Volkerrectits, 1758. *"• Inq. in Internat. Law, p. 1 2 7. 
 
156 SOUECES OF THE LAW OF NATIONS. 
 
 give a peculiar practical turn to the course of EngHsh 
 thought on all subjects, but it was partly due to the 
 existence of a special jurisdiction in England which 
 took cognizance of questions touching the Jus inter 
 Gentes. It has been well observed by Mr. Chancellor 
 Kent ^^, in reviewing the growth of the existing sys- 
 tem of International Law, that "many of the most 
 important principles of public law have been brought 
 into use and received a practical application, and been 
 reduced to legal precision since the age of Grotius 
 and of Puffendorf, and we must resort to the judicial 
 decisions of the Prize Tribunals of Europe and in this 
 country (the United States of North America) for in- 
 formation and authority on a great many points on 
 which all the leading Text- Writers have preserved a 
 total silence." From the Thirteenth to the Sixteenth 
 Century, the controversies of Nations had been ad- 
 judged by the rules of the Civil Law, and Albericus 
 Gentilis, the earliest Jurist who rendered any essen- 
 tial service to International Law as a Science, in his 
 Treatise de Jure Belli, which appeared in England 
 towards the close of the Sixteenth Century, supports 
 his positions of law by reference to the Civil Law of 
 the Komans, and appeals to the authority of the 
 Commentators on that Law. Grotius himself has 
 recourse to the rules and distinctions of the Eoman 
 Law, sometimes as illustrating the application of the 
 principles of Natural Justice, at other times as sup- 
 plying the best evidence of the usage of mankind, or 
 at least of that which he conceived to be the most 
 civilised portion of it. For instance, Grotius supported 
 his position, that no Nation could acquire rights of 
 property over the sea, so as to exclude others from 
 fishing in it, by reference to the Eoman Law, show- 
 " Commentaries on American Law, Part I. § 71. 
 
SOURCES OF THE LAW OF NATIONS. 157 
 
 ing from the Digest and the Text- Writers, that there 
 had always been a rule founded on common consent 
 in restraint of the Law of Nature with regard to 
 prior occupancy, whereby the open sea was precluded 
 from SO being entirely reduced into possession by any 
 Nation, as to found in it absolute and exclusive rights 
 of property. " Wherever this Law of Nations is in 
 force and has not been repealed by common consent, 
 the most inconsiderable part of the sea, nay, though 
 it be almost enclosed by the shore, can never be the 
 property of any particular people 2^." 
 
 § 93. The study of the Civil Law in England had study of 
 always been fostered by the Universities of Oxford Nation! in 
 and Cambridge, at a time when the Courts of West- ^"s^""^- 
 minster undervalued and disparaged it, and a privi- 
 leged career was preserved for the Civilians in the 
 High Cqjirt of Admiralty, where a knowledge of the 
 Unwritten Law of the civilised World was of necessity 
 maintained to meet the exigencies of the cases which 
 might come before it. The threefold division of the 
 Law of Nations into Natural, Conventional, and Cus- 
 tomary, was adopted as early as the middle of the 
 Seventeenth Century by Dr. Richard Zouch, who was 
 at that time Judge of the High Court of Admiralty, 
 and at the same time Eegius Professor of Civil Law 
 at Oxford. His Treatise on Fetial Law, or as he 
 termed it. Jus inter Gentes ^*, which appeared within 
 a quarter of a century after the great work of Grotius, 
 although small in bulk, was in substance very complete. 
 His words are precise, " Cum multi diversis tempori- 
 bus idem affirmant, id ad causam universalem referri 
 debet, quae alia esse non potest, quam recta conclusio 
 
 ^^ De Jure Belli et Pacis, L. II. sive Juris inter Gentes, et quae- 
 c. 3. § 10. 3. stionum de eodem explicatio, 
 
 *' Juris et Judicii Fetialis, anno 1650. 
 
158 SOURCES OF THE LAW OF NATIONS. 
 
 ex Natures principiis proveniens, aut communis ali- 
 quis consensus, e quibus ilia Jus Naturae indicat, hie 
 Jus Gentium. Deinde prseter mores communes, pro 
 Jure etiam inter Gentes habendum est, id quod Gentes 
 singulse cum singuhs inter se consentiunt; utpoteper 
 pacta, con-ventiones, et foedera, cum communis reipub- 
 licEe sponsio legem constituat, et populi universi, non 
 minus quam singuli, suo consensu obligentur." Dr. 
 Zouch was the first to adopt the expression Jus inter 
 G'entes in preference to that of Jus Gentium. In later 
 times the Chancellor d'Aguesseau has suggested the 
 substitution of the term Droit entre Gens for Droit 
 des Gens. Neither of these modifications in the ter- 
 minology of the Science has taken root, and it was 
 reserved for Mr. Bentham in more modern times to 
 suggest the phrase "International Law^*," which bids 
 fair to maintain itself in permanent use. 
 Courts of ^ 94. It has been the peculiar duty of the Tribunals 
 Nations." of the Law of Nations to investigate with precision 
 the Jus Consuetudinarium, and to separate the fluc- 
 tuating institutions of particular Nations from the es- 
 tablished practice of mankind. " It is my duty," says 
 one of the most distinguisbed administrators of the 
 Law of Nations, (Lord Stowell,) " not to admit, because 
 one Nation has thought fit to depart from the common 
 usage of the world and to meet the notice of mankind 
 in a new and unprecedented manner, that I am on 
 that account under the necessity of acknowledging 
 the efficacy of such a novel institution, merely be- 
 
 ^* Heffter considers the term holds to embrace the mutual re- 
 " International Law" not to ex- lations of individuals, as well as 
 press the idea of the Jus Gen- of States, so far as concerns their 
 tium of the Koman Jurisconsults, respective rights and obligations, 
 The former he considers to be having everywhere the same 
 identical with the external Pub- character and effect, independent- 
 lie Law of States ; the latter he ly of all positive institutions, § 1. 
 
Sources of the law of nations. 159 
 
 cause general theoty might give it a degree of coun- 
 tenance independent of all practice from the earliest 
 history of mankind. The institution must conform 
 to the Text-Law and likewise to the constant Usage 
 of the matter, and when I am told that before the 
 present war, no sentence of this kind has ever been 
 produced in the annals of mankind, and that it is 
 produced by one Nation only in this war, I require 
 Nothing more to satisfy me that it is the duty of this 
 Court to reject such a sentence as inadmissible^*^." 
 The same accomplished Jurist has also noted on 
 another occasion, how the practice of Nations controls 
 the application of abstract principles. " It has been 
 contended," he says, "that a sentence of condemna- 
 tion passed before the tribunal of an ally upon a 
 vessel lying in a neutral port is perfectly legal both 
 on principle and authority. It is said, that on prin- 
 ciple the security and condemnation of the capture are 
 as complete in a neutral port, as in the port of the 
 belligerent himself On the mere principle of secu- 
 rity it may perhaps be so, but it must be remembered 
 that this is a matter not to be governed by abstract 
 principles alone. The use and practice of Nations 
 have intervened and shifted the matter from its foun- 
 dation of that species. The expression which Grotius 
 uses on these occasions, jalacuit gentihvs, is in my 
 opinion perfectly correct, intimating that there is an 
 use and practice of Nations, to which we are now 
 expected to conform ^^." 
 
 § 95. The Jus Consuetudinarium of Nations is to be Customary 
 gathered from a variety of sources. Ancient collec- tudinary 
 tions of Maritime Usages, such as are to be found in ^*7ioM_ 
 the Consolato del Mare and the Koles d'Oleron, supply 
 
 ^^ The Fladoyen, i Kobinson's "' Th^ Henrich and Maria, 
 Keports, p. 141. 4 Kobinson's Reports, p. 54. 
 
160 SOURCES OF THE LAW OE NATIONS. 
 
 evidence of a very early practice. Thus the Rule 
 that enemy's goods found on board of neutral vessels 
 may be captured and condemned as Prize of War is 
 supported by a long established practice, of which 
 evidence has been recorded in the Consolato del Mare, 
 c. 231^''. On the other hand, a consuetudo may be in- 
 ferred from a succession of Public Treaties, in which 
 exceptions to it have been made for temporary pur- 
 poses, or in which regulations have been agreed upon 
 as to the manner of enforcing it. Thus there are 
 numerous instances of Treaties since the middle of the 
 Seventeenth Century, whereby Nations bound them- 
 selves to make exception towards one another in re- 
 gard to the practice of confiscating the goods of an 
 enemy found on board of the vessel of a friend. 
 Such exceptions, however, were matters of Treaty-En- 
 gagement, and when the Treaty expired, the excep- 
 tional engagement ceased, and the general rule came 
 into operation again. So likewise the consuetudo 
 under which the Sound Dues were levied by Denmark 
 upon all vessels passing into or out of the Baltic by 
 the narrow seas of the Sound or the Belts, was matter 
 of inference, as against the Nations of Europe, from a 
 series of Treaties commencing in the Fourteenth Cen- 
 tury, in which the European Powers have tacitly ad- 
 mitted the right of Denmark to levy tolls by nego- 
 ciating for and agreeing to a tariff of the tolls. Again, 
 a consuetudo may be directly recognised by the Eu- 
 ropean Powers in a formal Convention, such for in- 
 stance as the Convention of London 13 July, 1841, 
 whereby the Five Principal Powers of Europe recog- 
 nised the ancient Rule of the Ottoman Porte to keep 
 the passage of the Straits of the Dardanelles closed 
 against foreign vessels of war, whilst the Ottoman 
 *' Black Book of the Admiralty, KoUs Edition, yol.iii. p. 539. 
 
SOURCES OF THE LAW OF NATIONS. 161 
 
 Porte is at peace, and declared their unanimous de- 
 termination to conform themselves to it. Again, a 
 consuetudo may be inferred from the Ordinances 
 of Princes on matters touching their relations with 
 other Powers, where an uniformity of principles is 
 observed to pervade them, and their enactments in 
 joari materia are identical. 
 
 ^96. Savigny28 has observed, that "there may Relations 
 exist, between different Nations a common conscious- christian 
 ness of Eight similar to that which engenders the f^°^p™ 
 Positive Law of a particular Nation. The foundation tion^i. 
 of this community of feeling rests partly on a com- 
 munity of origin, partly on common religious convic- 
 tions ; and upon this Community of feeling has been 
 built up a Positive Law of Nations, as it especially 
 exists amongst the Christian States of Europe, But 
 this Positive Law of Nations, in his opinion, is only 
 imperfect Positive Law ; partly, on account of its in- 
 determinate character; partly, because it has not that 
 solid basis which the Power of the Government and 
 the authority of the tribunals give to the Positive 
 Law of particular States. The progress of Civili- 
 sation, grounded on Christianity, has led the Natioiis 
 of Europe to observe a rule analogous to this Posi- 
 tive Law of Nations in their dealings with Non- 
 Christian Powers, from whom they do not always 
 expect a similarity of conduct ; but this extended 
 application of the rule is of a purely moral character, 
 and is not in the nature of Positive Law." The Con- 
 suetudinary Law of Christendom has been accord- 
 ingly not invoked as the governing rule of inter- 
 course between Christian and Mahommedan Powers 
 with the same absoluteness as between Christian 
 Powers. In matters however of substance, and 
 '' System des heutigen Komischen Rechts, L. I. c. 1 1. § 1 1. 
 
 PART I. M. 
 
162 SOUECES OF THE LAW OF NATIONS. 
 
 where a primary question of International Eight is 
 involved, the European Powers have enforced against 
 the Ottoman Porte and her dependencies on the 
 Barbary Coast, the same rule of conduct which has 
 been accepted amongst Christian Nations. "On 
 many accounts," says Lord Stowell, " they are un- 
 doubtedly not strictly considered on the same footing 
 as European Merchants ; they may on some points of 
 the Law of Nations be entitled to a very relaxed 
 application of the principles established between the 
 (States of Europe, holding an intimate and constant 
 intercourse with one another. It is a Law made up 
 of a good deal of complex reasoning, although deiived 
 from very simple rules, and altogether composing a 
 pretty, artificial system, which is not familiar to their 
 knowledge or their observance. Upon such consider- 
 ations, the Court has on some occasions laid it down 
 that the European Law of Nations is not to be 
 applied in its full vigour to the transactions of per- 
 sons of the description of the present claimants, and 
 residing in that part of the world, (i. e. Mahommedan 
 merchants residing in the kingdom of Morocco.) 
 But on a point like this, the breach of a blockade, 
 one of the most simple and iiniversal operations of 
 war in all ages and countries, excepting such as are 
 merely savage, no such indulgence can be shown. It 
 must not be understood by them, that if an Euro- 
 pean army or fleet is blockading a town or port, they 
 are at liberty to trade with that port. If that could 
 be maintained, it would render the obligation of a 
 blockade perfectly nugatory. They in common with 
 all other Nations must be subject to this first and 
 elementary principle of blockade. It is not a new 
 operation of war ; it is as old and general as war 
 itself The subjects of the Barbary States could 
 
SOUECES OF THE LAW OF NATIONS. 163 
 
 not be ignorant of the general rules applying to a 
 blockaded port so far as concerns the interests and 
 duties of neutrals ^^" But in a matter of form which 
 involved only a secondary question of International 
 Eight, the same eminent Jurist upheld the transfer 
 of a ship which had been captured by an Algerine 
 Cruiser, and subsequently sold bond Jide to a Christ- 
 ian Merchant, although it was not established that 
 the ship had been formally condemned by the sen- 
 tence of a Prize tribunal. The Court presumed from 
 the fact that the sale was authorized by the State, 
 and as no remonstrance had been made against it by 
 the owner of the vessel, that there had been adequate 
 grounds for the confiscation of the vessel according 
 to their notion for some breach of Treaty-Regulations, 
 " as it is by the Law of Treaty only that these 
 Nations hold themselves to be bound, conceiving (as 
 some other people have foolishly imagined) that there 
 is no other Law of Nations, but that which is derived 
 from Positive Compact and Convention^". 
 
 ^97. The Conventional Law of Nations is some- The Dipio- 
 ■ times spoken of as the Diplomatic branch of the Law ™^e° 
 of Nations, and Diplomacy, in accordance with this 
 view, is the Science which is conversant with Nego- 
 tiations and Treaties. This distinction has not been 
 hitherto noted, and Diplomacy has been in general 
 regarded merely as an Art. It must be admitted 
 that the practice of Sovereigns in the selection of 
 Diplomatic Envoys has given some colour to the pre- 
 judices of mankind against the very name of Diplo- 
 macy ; and an able Diplomatist has come to be a 
 proverbial designation for a skilful negotiator, who 
 can bring about an arrangement quocunque modo in 
 
 ^ The Hurtige Hane, 3 Eobinson's Reports, p. 325. 
 =0 The Helena, 4 Bob. p. 4. 
 
 u 2, 
 
164 SOURCES OF THE LAW OF NATIONS. 
 
 favour of the party whose interests he represents. 
 But Diplomacy as a Science has higher ends in view, 
 and the true art of the Diplomatist is shown in 
 easing the friction of International intercourse, and 
 in smoothing the difficulties which may occasion- 
 ally embarrass that intercourse, either by a candid 
 interpretation of existing Treaty- engagements, or by 
 negociating the adjustment of a fluctuating practice 
 upon a sound basis of Conventional Law. For this 
 purpose, however, the Diplomatist requires not merely 
 a technical knowledge of the general rules which 
 govern the intercourse of Nations, but a perfect ac- 
 quaintance with the principles involved in those 
 rules, and which must be respected in the application 
 of them ; and it is indispensable for his success in 
 administering the Law of Nations, that he should 
 have mastered the elements of its Philosophy. 
 Conven- §9^- "Treaties," it has been well observed by 
 ofNationI ^^ American Statesman, " may be considered under 
 several relations to the Law of Nations according 
 to the several questions to be decided by them. 
 They may be considered as simply repeating or 
 affirming the General Law ^^ : they may be considered 
 as making exceptions to the General Law, which are 
 to be a particular Law to the parties themselves : 
 they may be considered as explanatory of the Law of 
 Nations on points where its meaning is otherwise 
 obscure or unsettled, in which case they are first a 
 Law between the parties themselves, and next a 
 sanction to the General Law, according to the rea- 
 sonableness of the explanation, and the number and 
 character of the parties to it : lastly, treaties may be 
 
 " The preambles or recitals of the party who makes them, 
 
 of Treaties furnish sometimes Edinburgh Review, LXXVII. p. 
 
 valuable evidence in this respect, 312. 
 when they are against the interest 
 
SOURCES OF THE LAW OF NATIONS. 165 
 
 regarded as forming a voluntary or positive Law of 
 Nations. Whether the stipulations of a treaty are to 
 be considered as an affirmance, or an exception, or an 
 explanation, may sometimes appear upon the face of 
 the treaty; sometimes being naked stipulations, their 
 character must be determined by resorting to other 
 evidences of the Law of Nations. In other words, 
 the question concerning the Treaty must be decided 
 by the Law, not the question concerning the Law 
 by the Treaty ^^." Mr. Madison's observations in the 
 above passage are valuable, as they show that trea- 
 ties may be operative in very different ways. For 
 instance, the effect of a treaty, if it is of a restrictive 
 character, must be limited to the parties between 
 whom the compact is made ; if on the other hand it 
 should be of a beneficial character, and should relax 
 the rigour of the customary liaw in their mutual 
 favour, its operation may extend to other Nations. 
 But this indirect result will depend not upon the 
 force of the Convention as a Contract, for that only 
 binds the parties to it, but on certain considerations 
 of Right (Jus) dehors the treaty ; and which may 
 involve the nicest questions of International Juris- 
 prudence. 
 
 § 99. Mr. Reddie, in his Inquiries in International views of 
 Law ^^ has suggested, that German writers generally, and^others 
 and particularly Martens and Kltiber, have, in framing co^^'^a'Sted. 
 or constructing the science which they have denomi- 
 nated Droit des Gens Moderne de VEurope, ascribed 
 too much to express Conventions or Treaties, as 
 sources of this Law. Their language ^* is considered 
 by him to imply, that besides the obligation which 
 
 '^ Madison's Examination of national Law, pp. 157, and 339. 
 the British Doctrine, London, '* Martens, Precis du Droit 
 
 1806, p. 39. des Gens, Introduction, § 7. Klii- 
 
 2' Reddie, Inquiries in Inter- ber, Droit des Gens, § 2. 
 
166 SOURCES OF THE LAW OP NATIONS. 
 
 Treaties impose upon the immediate parties to the 
 contract, some more General Law may be gathered 
 from them, resulting from a concurrent mode of con- 
 tracting, which will be binding upon Nations which are 
 not parties to the treaties. "It is obvious, however, 
 that no Common or General Law of Nations can be 
 derived from the particular Treaties or Conventions 
 of Nations, however similar they may be. Those 
 treaties can be used for the construction of the Sci- 
 ence, only in order to ascertain what has been pro- 
 pounded or recognised in them as their basis, and 
 that basis is nothing else than Custom or Usage." 
 Such is the reply which is given by an opposite 
 school of writers represented by the Prussian Privy 
 Councillor Schmalz ^°, and by the anonymous author 
 of the Trait6 Complet de Diplomatic. The former 
 writer observes that Leibnitz, whose Codex Diplo- 
 maticus may be regarded as the foundation of the 
 Diplomatic Science, "commenced his collection of 
 treaties not with the idea that the contents of these 
 treaties would supply a body of International Law, 
 but because there would be found in them pre-emi- 
 nently what principles the European Powers have 
 recognised as right and just, or what they have pro- 
 nounced or held to be so recognised, and to be un- 
 questionable." The author of the Traits .Complet de 
 Diplomatie in a similar manner says, " Cependant il 
 est evi(^ent, qu'on ne sauroit former un droit positif 
 de I'ensemble des Conventions particuliferes des peu- 
 ples, quelque semblables qu'elles fussent. Ces pactes 
 ne peuvent servir de materiaux pour ^difier la sci- 
 ence, s'ils ne montrent ce que Ton y a reconnu pour 
 base ; et cette base n'est autre chose, que la coutume ^^." 
 
 °° Schmalz, EuropaischesVijlk- '* Traits Complet de Diplo- 
 errecht, B. I. § lo. and § 28. matie, T. I. p. 41. 
 
SOURCES OF THE LAW OF NATIONS. 167 
 
 The difference is important between these two 
 schools of Jurists. The former regard the principles 
 as commending themselves to our acceptance by rea- 
 son of their recognition in the treaties ; the latter 
 consider the treaties to demand our respect, so far as 
 they furnish evidence of a very general and long pre- 
 vailing usage. 
 
 § loo. M. Ortolan in his work on the Diplomacy ofo>^oian's 
 the Sea^'', has combated Mr. Reddie's criticisms, andlffeTtsof^ 
 has vindicated the doctrine of Martens and Kltiber, 5°"''™' 
 
 ^ _ ' tions on 
 
 from what he considers to be a misapprehension of its General 
 true import. M. Ortolan holds that those eminent 
 publicists did not pretend that the stipulations of a 
 particular treaty could be a rule binding upon any but 
 the parties to it, but that a series of treaties concluded 
 at different epochs between different civilised Nations, 
 exhibited an uniformity of principle in their stipula- 
 tions, from which a theory of what is generally prac^ 
 tised amongst Nations may be formed by abstraction, 
 and this theory constitutes the Conventional Law of 
 Nations. M. Ortolan then proceeds to cite a passage 
 from one of the authors criticised by Mr. Reddie, in 
 which it is contended that "the principle which is 
 established in the greatest number of treaties ought 
 to be regarded as the rule, and that which is found in 
 the least number as the exception. That the ques- 
 tion in dispute ought to be decided according to the 
 principle contained in the greatest number of trea- 
 ties, particularly if the greatest number are at the same 
 time the most recent. For it may be inferred from 
 this circumstance, that Nations have gradually aban- 
 doned an old principle for a new principle, and that 
 
 " Efegles Internationales et Diplomatie de la Mer, Tom. II. Ap- 
 pendice, p. 442. 
 
168 SOURCES OF THE LAW OF NATIONS. 
 
 by a change of principles they have worked a change 
 in the Law of Nations." 
 wheaton's ^ loi. Wheaton, in a similar manner, in the earHer 
 ut'er^^ewl editions of his Elements of International Law, seems 
 to have been inclined to assign to treaties too import- 
 ant a part in the formation of General International 
 Law. " The effect of Treaties and Conventions be- 
 tween Nations," he observes, " is not necessarily re- 
 stricted, as Eutherforth has supposed, to those States 
 which are direct parties to these compacts. They 
 cannot, indeed, modify the original and preexisting 
 International Law, to the disadvantage of those 
 States which are not direct parties to the particular 
 treaty in question. But if such a treaty (i) relaxes 
 the rigour of the primitive Law of Nations in their 
 favour, or (2) is merely declaratory of the preexisting 
 Law, or (3) furnishes a more definite rule in cases 
 where the practice of States has given rise to con- 
 flicting pretensions, the Conventional Law thus intro- 
 duced is not only ohligatory as hetween the contract- 
 ing parties, hut constitutes a rule to he ohserved hy 
 them to all the rest of the world ^*. In support of this 
 view, Wheaton refers to his History of the Law of 
 Nations, and the remarks therein contained upon 
 Conven- the Maritime Convention concluded in 1801 between 
 i8'oi°be- Russia and Great Britain, which put the seal to the 
 tweenRue- dissolutiou of the Secoud Armed Neutrality of the 
 
 sia and -n i • -r-> 
 
 Great Bri- Baltic PoWCrS ^'. 
 
 A difficulty at once suggests itself in the way of 
 the first and third of Wheaton's positions, namely, 
 that as International obligations are under the Com- 
 mon Law of Nations reciprocal, if a State under 
 
 "' Elements of International '° History of the Law of 
 Law, third edition, Philadelphia, Nations, p. 14. § 9. pp. 408 — 
 1846, part L c, I. s. XVI. § 7. 420. 
 
SOURCES or THE LAW OF NATIONS. 169 
 
 treaty-engagements with one Power, whicli come un- 
 der either of those heads, is bound by the Common 
 Law of Nations to observe the rule which accords 
 with those treaty-engagements, not merely in its in- 
 tercourse with that Power, but in its intercourse with 
 all other Powers, those other Powers will be bound 
 to reciprocate the rule, and they will thus be indi- 
 rectly involved in engagements to which they are not 
 consenting parties. This anomaly will be still more 
 striking in the case, where the treaty-engagements 
 are on a subject, "where the practice of different 
 States has given rise to conflicting pretensions," and 
 the States which are not parties to the treaties should 
 be those which pursue a difierent practice from that, 
 which the treaty has introduced between the con- 
 tracting parties. 
 
 § 1 02. In regard to Wheaton's second position, the iiiuatra- 
 Law of Contraband of War may be referred to by cont™- ° 
 way of illustrating his mode of applying the prin- ^^^ °^ 
 ciple. By the third section of the third Article of 
 the Convention of 1801, Great Britain and Eussia 
 agreed to the same definition of Contraband of War 
 which had been agreed upon between the two Powers 
 in the temporary Convention of 1797. Wheaton*" 
 observes that this section does not contain " the con- 
 cession of any special privilege to be thenceforth en- 
 joyed by the contracting parties only, but the recog- 
 nition of an universal and preexisting right, which, 
 as such, could not justly be refused to any other 
 Independent State," and that " it must be taken as 
 laying down a general rule for all further discussions 
 with any power upon the subject of Military and 
 Naval Stores, and as establishing a principle of law 
 which was to decide universally on a just interpre- 
 *" History of the Law of Nations, p. 415, 416. 
 
170 SOURCES OP THE LAW OF NATIONS. 
 
 tation of the teclinical term of Contraband of War." 
 Bynker- The doctrins of Bynkershoeck*! does not harmonize 
 doctrine, with Wheaton's view, for Bynkershoeck holds, that 
 there is a Common Law of Nations as to Contraband 
 of War, which has been deduced from reason and 
 usage, and the usage of manMnd is evidenced by the 
 tenor of an almost perpetual series of treaties and 
 ordinances on the subject. 
 
 There is also a reservation contained in the con- 
 cluding part of the third Section of the third Article 
 of the Convention of 1801, which seems to be irre- 
 concilable with Wheaton's Interpretation. It is 
 agreed that the stipulations of the present Article 
 shall not prejudice in any way the particular stipu- 
 lations of either Crown with other Powers ; whereby 
 objects of a like kind shall be reserved, prohibited, or 
 permitted*^! Wheaton considers this clause to ap- 
 ply only to subsisting treaties, and contends that its 
 insertion countenances his construction of the Article, 
 inasmuch as it was necessary for Great Britain, when 
 she undertook to lay down an universal principle, ap- 
 plicable to all her transactions with every Independent 
 State, to reserve the more favourable practice which 
 her subsisting treaties had established with some 
 other Powers. But the words of the Article seem to 
 bear a more extensive meaning, and apply rather to 
 contingent than to subsisting treaties, and are not 
 limited necessarily to treaties more favourable to 
 
 , *' Questiones Juris Public! article, ne portera aucune pr6ju- 
 
 L. I. c. 10. " Dixi ex perpetua dice aux stipulations particuliferes 
 
 quodammodo consuetudine pa- de I'une ou de I'autre couronne 
 
 ciscendi edicendique, quia unum avec d'autres puissances, par les- 
 
 forte alterumve pactum quod a quelles des objets de pareil genre 
 
 consuetudine recedit,jus Gentium seroient reserves, 2)rohibes ou per- 
 
 non mutat." mis." Martens, Eecueil, VII. 
 
 *'' ''II est aussi convenu, que p. 262. 
 ce qui est stipule dans le present 
 
SOURCES OF THE LAW OF NATIONS. 171 
 
 G-reat Britain, as it speaks of Treaties which should 
 permit, as well as of those which should prohibit 
 similar objects. 
 
 It was unnecessary for the two Powers to declare 
 that this treaty should not prejudice the subsisting 
 treaties of Great Britain with other powers, excepting 
 ex majori cauteld, to prevent any possible question 
 between them on the subject ; for Great Britain could 
 not set aside, under any circumstances, her Treaties 
 with other Powers on the subject of Contraband of 
 War, on the grounds that she had concluded a Treaty 
 on other terms with Russia. On the other hand, this 
 proviso would have been idle, had there been any 
 principle of the Common Law of Nations which enti- 
 tled any third Power to insist upon Great Britain and 
 Russia observing towards itself a rule which accorded 
 ■with their particular Treaty-engagements. In further 
 illustration of the untenable nature of WheatOn's 
 positions in regard to the particular subject of Con- 
 traband of War, the practice of Nations may be ap- 
 pealed to. Thus Great Britain during the war of 
 the Spanish Succession made a Treaty with Denmark, 
 under which ship-timber was recognised between the 
 Two Powers as Contraband of War, and not to be 
 imported into the enemy's port. France, being at 
 such time at war with England, did not claim from 
 Denmark, under the Law of Nations, the observance 
 of a like rule in her favour, but insisted upon Den- 
 mark concluding an analogous Treaty with the French 
 Crown. Such a measure would have been unneces- 
 sary, if the Ijaw of Nations had bound Denmark to 
 observe the same rule as to Contraband of War 
 towards the enemies of other Powers with which she 
 was at amity, as she had engaged herself by Treaty 
 with Great Britain to observe towards the enemies 
 
172 SOURCES OF THE LAW OF NATIONS. 
 
 of that Power. Yet there is no subject which concerns 
 SO intimately the interests of every Member of the 
 Family of Nations, as the rights and obligations of 
 NeutraHty. Again, if the rule of Law was such as 
 has been suggested by Wheaton, we should not find 
 a special provision in treaties to the effect that the 
 contracting party shall grant to each other the same 
 immunities and privileges which they should grant 
 to any other Nation, in other words, what is termed 
 "the most favoured Nation clause." But this sub- 
 ject wiU be more fully discussed when we come to 
 speak specially of Conventions. Meanwhile it may 
 be useful to remark, that the Plenipotentiaries of the 
 Seven Powers assembled in Congress at Paris on 
 1 6th April, 1856, who signed the Declaration respect- 
 Deeiarar ing Maritime Law in time of War, with a view to 
 *|°jj^°*^^ establish an uniform doctrine and more beneficial 
 *fi A*"n pi^a-ctice, agreed to bring it to the notice of the 
 1856. ' States which did not take part in the Congress, and 
 to invite them to -accede to it. The Declaration was 
 meanwhile to be binding only between the Powers 
 who had acceded to it. But this proviso is idle, if 
 Wheaton's Theory be correct, that the Conventional 
 Law thus introduced, seeing that it relaxes the rigour 
 of the primitive Law of Nations, and at the same 
 time furnishes " a more definite rule in a case where 
 the practice of states has given rise to conflicting 
 pretensions," is not only binding on the contracting 
 parties, but "constitutes a rule to be observed by 
 them to all the rest of the world." The United States 
 of North America, for instance, have been formally 
 invited to accede to the Convention of Paris, but they 
 have declined so to do, unless the European Powers 
 will agree to modify still further their practice as to 
 Prize of War on the High Seas. The remaining 
 
SOURCES OF THE LAW OP NATIONS. 173 
 
 Powers of Europe who were not parties to the original 
 Declaration, have since formally acceded to it*^. 
 
 § 103. There may be exceptional cases in which Preambles 
 articles of a Declaratory character are inserted in thecHfifofa 
 Text of Public Acts of an International character, by P^^'^ra- 
 
 ,-, ' 1 n 1 ' «/ tory Cha« 
 
 the side of articles which are strictly the foundation raoter. 
 of a Contract, and those Declaratory articles may ap- 
 ply to all Nations. Thus in the Final Act of the Con- 
 gress of Vienna (9 June, 18 15) several Declaratory 
 Acts of one or more of the Powers assembled in Con- 
 gress were in substance incorporated in the form of 
 Articles, or formally recognised as if annexed in ex- 
 tenso. Amongst these the rogth Article may be 
 specially referred to as expressly applicable to all 
 Nations, which declares the navigation of all rivers, 
 which traverse or separate the territories of the 
 Powers which have signed the Treaty, to be free to 
 all the world. " La navigation dans tout le cours des 
 riviferes indiqu^es dans 1' article pr^c6dent, du point 
 ou chacun d'elles devient navigable jusqu'^ son em- 
 bouchure, sera entiferement Hbre, et ne pourra, sous le 
 rapport de commerce, 6tre interdite d personne, bien 
 entendu que Ton se conformera aux r^glemens relatifs 
 k la police de cette navigation, lesquels seront con^us 
 d'une maniere uniforme pour tous, et aussi favorable 
 que possible au commerce de toutes les Nations **." 
 The Regulation, on the other hand, respecting the 
 
 *' It is most satisfactory to contain the reference to Mr. 
 find,that in the last (sixth) edition Rutherforth's work, as well as 
 of Wheaton's Elements, (Boston, Wheaton's three positions, are 
 1857,) edited after his death by discarded, and their place is sup- 
 Mr. William Beach Laurence, the plied by some general remarks 
 objectionable doctrine which has which are more in accordance 
 been discussed in the preceding with the doctrine of Bynker- 
 sections is no longer maintained, shoeck. 
 
 The passages which appear in " Martens, Nouveau Recueil, 
 
 the earlier editions, and which II. p. 427. 
 
174 SOURCES OP THE LAW OF NATIONS. 
 
 rank of Diplomatic Agents which, was incorporated in 
 the General Act*^, is an instance of a provision vir- 
 tually applicable to all Nations, but the Powers 
 which agreed to the Eegxilation were extremely care- 
 ful to disclaim any right to impose it upon other 
 Powers. Again, in the Treaty of Paris, (30 March, 
 1856), Article XV is to this effect: " The Act of the 
 Congress of Vienna having established the principles 
 intended to regulate the navigation of rivers which 
 separate or traverse different States, the Contracting 
 Parties stipulate amongst themselves that those prin- 
 ciples shall in future be equally applied to the Danube 
 and its mouths. They declare that this arrangement 
 henceforth forms fart of the Public Law of Europe, 
 and take it under their guaranty." 
 objectiona ^ 104. Certain writers, both in England and in 
 of any France, have expressed a doubt how far the Eules of 
 ^m;h' be- conduct which prevail amongst Nations can properly 
 tween Na- be regarded or spoken of as Laws, on the ground 
 that they are not prescribed by any superior Power. 
 Thus Mr. Austin says*®, " that the Law of Nations 
 obtaining between Nations is not Positive Law, for 
 every Positive Law is set by a given Sovereign to 
 a person or persons in a state of subjection to 
 its author." He observes further, that, " the law 
 obtaining between Nations is law (improperly so 
 called) set by general opinion. The duties which it 
 imposes are enforced by .moral sanctions ; by fear 
 on the part of Nations, or by fear on the part of 
 Sovereigns of provoking general hostility, and incur- 
 ring its probable evils, in case they shaU violate 
 maxims generally received and respected." Mr. Au- 
 stin accordingly considers that the science which is 
 conversant with the positive rights and obhgations 
 *■' Art. CXVIII. *'' Austin on Jurisprudence, p. 208. 
 
SOURCES or THE LAW OF NATIONS. 175 
 
 of Nations should be styled the science of Positive In- 
 ternational Morality, To a similar effect M. de Ray- 
 neval writes*', "there can be no right (droit) where 
 there can be no law (loi), and there is no law where 
 there is no Superior ; without law, obligations, pro- 
 perly so called, cannot exist ; there is only a moral 
 obligation resulting from natural reason ; such is the 
 case between Nation and Nation." He further says, 
 that " law is a rule of conduct, deriving its obligation 
 from sovereign authority, and binding only on those 
 persons who are subject to its authority. Nations 
 being independent of one another acknowledge no 
 Sovereign from whom they can receive Law (loi), and 
 all their relative duties result from right or wrong, 
 from convention or usage, to none of which can the 
 term Law be properly applied." 
 
 § 105. It is however not a valid objection to the intema- 
 existence of juridical relations between Nations, that Ja^iy aia-' 
 they are not, like the domestic law of a State, defined tj^ot from 
 
 •^ . ' the Law of 
 
 by the Sovereign Power, or that they are not enforced Nations. 
 by the executive authority of a political Superior. If 
 those relations can be accurately defined howsoever, 
 and can be enforced at all, they are not merely rela- 
 tions of Morality, but relations of Law. The History 
 of the European Law of Nations shows that the more 
 powerful Nations have, as occasion required, used their 
 individual strength to enforce its rules, and that the 
 less powerful Nations have combined their forces from 
 time to time, and by their united strength compelled 
 the more Powerful States to respect them. Such 
 leagues for the enforcement of the reciprocal rights 
 and obligations of Nations have been the means of 
 maintaining a Balance of Power amongst the European 
 
 " De Rayneval, Institutions du droit de la Nature et des Gens, 
 L. I. p. 8. n. 10. 
 
176 SOURCES OF THE LAW OE NATIONS. 
 
 Nations, whereby the independence of the weaker 
 states is protected from aggression, and the observance 
 of settled rules of intercourse amongst Nations is se- 
 cured. Wherever a Eule of Conduct is thus capable 
 of being enforced it ceases to be a mere Eule of Mo- 
 rality, binding on the conscience of men, and may in 
 contradistinction be termed without risk of confusion 
 a Rule of Law **. There are, however, many ques- 
 tions between Nations which involve matters of In- 
 ternational Morality, and the Eules of International 
 Morality **• are supplemental to the Eules of Interna- 
 tional Law. Law may prevent wrong, but it cannot 
 always secure right, and Morality here steps in to 
 the aid of Law between Nations, precisely as it comes 
 to the aid of Law between individual human beings. 
 Mr. Chancellor Kent has well observed, "that the 
 Law of Nations is a complex system, composed of 
 various ingredients ; it consists of general principles 
 of right and justice, equally suitable to the govern- 
 ment of individuals in a state of natural equahty, 
 and to the relation and conduct of Nations ; of a 
 collection of usages and customs^ the growth of civi- 
 lisation and commerce ; and a code of Conventional 
 and Positive Law. In the absence of these latter 
 regulations, the intercourse and conduct of Nations 
 are to be governed by principles fairly to be deduced 
 
 *' It appears to be a well Morality as distinguished from 
 
 founded distinction between Law Law. 
 
 and Morality, that wherever *' Mr. Senior proposes to dis- 
 the sanctions of a rule of conduct tinguish the Natural Law of Na- 
 are Physical, namely, wherever tions by the term International 
 the sanction is fear of injury to Morality, and to confine the term 
 person or property, the rule may International Law to the rules 
 be properly ranked under the of conduct, whether consistent or 
 head of Law ', where the sane- not with International Morality, 
 tions of a rule of conduct are which are sanctioned by the pub- 
 only to be discovered in the lie opinion of Nations. Edin- 
 human conscience, it is a rule of burgh Review, LXXYII. p. 306. 
 
SOURCES OF THE LAW OF NATIONS. 177 
 
 from the rights and duties of Nations and the nature 
 of moral obligations ; and we have the authority of 
 lawyers of antiquity, and some of the first masters 
 in the modem school of Public Law, for placing the 
 moral obligation of Nations and of individuals 
 on similar grounds, and for considering individual 
 and national Morality as parts of one and the same 
 Science «»." 
 
 °° Kent's Commentaries of American Law, Part I. Lecture i . 
 
 PAET I. 
 
CHAPTEE VII. 
 
 RIGHT OF SELF-PRESERVATION. 
 
 Absolute and Conditional Eights of Nations — Eight of Self- 
 Defence — Treaty Limitations of such Eight — Eight of Self- Aggran- 
 disement — Eight of anticipating Attack — Eight of Confederation — 
 The Balance of Power. 
 
 Absolute § 1 06. Every Nation has certain rights with regard 
 ditionaf' to other Nations, which pertain to its moral being as 
 N^bns*' an Independent Pohtical Body, and the enjoyment of 
 which is indispensable to its existence as such. These 
 Rights may be termed Primary and Absolute Rights^, 
 as they are coordinate with the Being of a Nation, 
 and are not dependent upon particular conditions of 
 International Life. There are other rights to which 
 all Nations are entitled, but not under all circum- 
 stances, which arise out of the intercourse of Nations 
 with one another, and which cease with the circum- 
 stances which give rise to them. These may be dis- 
 tinguished as Secondary or Conditional Eights, some of 
 them being incident to a state of amity, others being 
 coincident only with a state of war. The Primary or 
 Absolute Eights of Nations rest upon a foundation 
 of Moral Truth, " the proofs of which are to be re- 
 ferred to some such certain notions," to use the lan- 
 guage of Grotius ^ " as none can deny without doing 
 violence to his own judgment." The Secondary or 
 Conditional Eights rest upon a basis of historical 
 fact. The former are inseparably connected with the 
 free Moral agency of Independent Political Bodies, the 
 
 ' Kluber, § 36. Wheaton, Elements, pt. II. c. i. § i. 
 ^ De Jure Belli et Pacis, Prolegomena, § 39. 
 
EIGHT OF SELF-PRESEEVATION. 179 
 
 latter have grown up with the exercise of that free 
 Moral agency, and with the mutual recognition of its 
 consistency with the varying circumstances of Inter- 
 national intercourse. 
 
 § loy. Of the Primary or Absolute Eights of a Na- Eight of 
 tion the most essential, and as it were the Cardinal knaH"' 
 Eight, upon which all others hinge, is that of Self- 
 Preservation. This Eight necessarily involves, as sub- 
 ordinate Eights, aU other Eights which are essential 
 as means to secure this principal end. Amongst these, 
 the foremost is the Eight of Self-Defence. An Inde- 
 pendent Political Society, which is not in a condition 
 to repel aggression against its Territory, or against 
 the Persons or Property of its Members, is unequal 
 to the object of its Institution. " The Nation," writes 
 Vattel ^, " ought to put itself in such a state as to be 
 able to repel and humble an unjust enemy. This is an 
 important duty which the care of its own perfection and 
 even its Self-Preservation imposes both on the State 
 and on its Conductor." Hence a Nation is entitled, 
 consistently with the maintenance of peaceful relations 
 towards other Nations, to fortify its Territories, to train 
 up its Population'generally in the use of arms, to main- 
 tain a portion of its Population under arms, in the form 
 either of a standing army or a permanent war-navy, 
 to equip itself with stores and munitions of war, and 
 to form defensive alliances with other Nations. The 
 presumption of Natural Law is, that all measures of 
 this kind which do not endanger the safety of other 
 Nations, are undertaken bond Jide for the security of 
 National Independence, and the exercise of the Na- 
 tural Eight of a Nation in these matters is only con- 
 trolled de jure by the equal and corresponding Eights 
 of other Nations. "A Nation," writes Vattel*, "is 
 = Droit des Gens, L. I. c. 14. § 177. * Ibid. § 185. 
 
 N 2 
 
180 RIGHT OP SELF-PEESERVATION. 
 
 sufficiently powerful, when it is capable of causing 
 itself to be respected, and of repelling whoever would 
 attack it." Within these limits no Nation is bound 
 to give account of its conduct to any other Nation. 
 But the equal and corresponding Eights of other 
 Nations come at once into play, if a Nation should 
 increase its armaments to an extraordinary extent. 
 Under such circumstances, any other Nation, in pur- 
 suance of its own right of Self-Defence, may ask for 
 explanation, if it either sees in the armaments of its 
 Neighbour immediate occasion for alarm, or antici- 
 pates possible danger to itself or its Allies. A refusal 
 to furnish explanation, when it has been asked for in 
 a courteous tone and with an amicable spirit, will 
 justify counter-armaments, and may sometimes even 
 justify immediate measures of hostile repression ^. 
 Treaty Li- ^ 1 08. Exceptional cases occur de facto, in which 
 of Eight of the limits, within which a Nation may lawfully exer- 
 fence^* cisc its Eight of Self-Defcnce, have been narrowed, 
 by special conventions freely entered into with other 
 Nations. 
 
 Thus the exercise of the Right of a Nation to fortify 
 its territory has been sometimes limited by treaty- 
 engagements. In such cases the exercise of that Eight 
 by the erection of fortifications of a particular kind 
 has been deemed to be inconsistent with the safety 
 of another Nation. Thus by the Treaty of Utrecht, 
 (anno 171 3,) confirmed by the subsequent treaties of 
 Aix-la-Chapelle, (anno 1 748,) and of Paris,(anno 1 763,) 
 France engaged herself to Great Britain not to for- 
 tify the town of Dunkirk towards the sea, as such 
 fortifications were deemed by Great Britain to be 
 inconsistent with her just security. By the treaty of 
 
 ° Klilber, Droit des Gens, 118; Wheaton's Elements, part 
 § 40; Martens, Prdcis, § 117, II. c. i. 
 
EIGHT OF SELF-PRESBKVATION. 181 
 
 Luneville^ (anno 1801,) France restored to the Princes 
 of the Germanic Empire all the conquests which her 
 armies had made on the right bank of the Rhine, on 
 the express condition however, that the ceded fortresses 
 should continue permanently in the state in which 
 they were at the time of their evacuation by the 
 French armies. By the Treaty of Paris, (anno 1 8 1 5 '',) 
 France engaged herself to the Allied Powers not to 
 rebuild the Fortifications of Huningen, which had 
 been a source of disquietude to the City of Bisle, and 
 not to replace them by any other Fortifications at a 
 distance of less than three miles from that city. Again, 
 the exercise of the Right of a Nation to maintain a 
 portion of its population under arms, has been sub- 
 jected to limitation by treaty-engagements, more parti- 
 cularly with regard to a war navy. Thus the Genoese 
 in their Treaty with France, (anno 1683,) undertook 
 to reduce the number of their vessels of war in com- 
 mission, and the Ottoman Porte and Eussia respec- 
 tively engaged themselves to the European Powers 
 who signed in conjunction with them the Treaty of 
 Paris*, (anno 1856,) by a special Convention annexed 
 to that Treaty, and declared by Article XIV of that 
 Treaty to -form part of it, not to maintain severally 
 more than ten vessels of war of a limited tonnage on 
 the waters of the Black Sea ^. 
 
 § 109. A Nation is not entitled to oppose itself to Eigtt of 
 the territorial aggrandisement of another nation, un- grandife- 
 less that aggrandisement be actually prejudicial to its '"^'■ 
 rights, or visibly threatens to become so". War is not 
 
 ° Martens, Eecueil, vii. p. 296. the Signatory Powers of the 
 
 ' Martens, Nouveau Recueil, Treaty of Paris at the Confer- 
 
 n. p. 682. ences of London, January 17, 
 
 8 Martens, N. E. Qin. XV, 187 1. 
 
 p, 1^86. ^° Grotius de Jure Belli et 
 
 = This Gonyention was ab- Pacis, L. II. c. i. § 17. "Wolff, 
 
 rogated with the consent of all Jus Gentium, § 640. 
 
182 RIGHT OF SELF-PRESERVATION. 
 
 justifiable on any other ground than that of redressing 
 actual wrong, or of preventing intended aggression. 
 A Nation, which by any just means enlarges its do- 
 minions by the incorporation of new Provinces with 
 the free will of their inhabitants, or by the occupation 
 of vacant territory to which no other Nation can lay 
 claim, is pursuing the legitimate object of its Being, 
 as a Political Society instituted for the promotion of 
 the common welfare of its members ^^ "A State," 
 writes Vattel, " that increases her power by all the 
 acts of good government, does no more than what 
 is commendable : she fulfils her duty towards herself 
 without violating those which she owes to other 
 Nations ^^." " The right of every Independent State," 
 writes Mr. Wheaton, " to increase its national domin- 
 ions, wealth, population, and power, by aU innocent 
 and lawful means — such as the pacific acquisition of 
 new territory, the discovery and settlement of new 
 countries, the extension of its navigation and fisheries, 
 the improvement of its revenues, arts, agriculture, 
 and commerce, the increase of its military and naval 
 force — is an incontrovertible right of Sovereignty, 
 generally recognised by the usage and opinion of 
 Nations." AU writers on Public Law^* agree that an 
 increase of Power cannot alone, and of itself, give any 
 Nation a right to take up arms in order to oppose 
 it. The internal development of the resources of a 
 country, although the increase of its population and 
 wealth is the surest means of augmenting its power, 
 has never yet been considered a just cause of alarm 
 to other Nations, for such augmentation is in perfect 
 accordance with the moral end of a Nation's Being, 
 
 " Kluber, § 41. " Elements of International 
 
 '^ Droit des Gens, L. III. c. 3. Law, pt. II. c. i. § 3. 
 § 42. 
 
BIGHT or SELF-PRESERVATION. 183 
 
 and, being gradual, is not suggestive of any evil in- 
 tention towards others. In the same way the settlement 
 of Colonies in distant lands, and the acquisition of De- 
 pendencies in remote quarters of the world, have been 
 regarded as legitimate means of external develop- 
 ment, which a Nation may pursue without giving to 
 other Nations just cause of apprehension for their own 
 safety. It would be contrary to Morality for Nations 
 to combine for the purpose of retarding the innocent 
 growth of the power of a State, which owing to the 
 superior merits of its PoUtical Institutions, or through 
 the enlightened guidance of wise rulers, is enabled to 
 advance more rapidly in the career of civilisation than 
 its neighbours, and, as a consequence of such advance, 
 to attain to greater material prosperity. The usage 
 of Nations in this respect accords with the dictates 
 of right Keason. 
 
 ^ no. On the other hand, an increase of power, if Eight of 
 it be accompanied by the will to abuse that power, f^^auack. 
 creates good ground for alarm, and may justify 
 a recourse to arms'*. "A Nation," writes Vattel, 
 " which has a neighbour at once powerful and ambi- 
 tious, has her all at stake. As men are under the 
 necessity of regulating their conduct in most cases by 
 probabilities, those probabilities claim their attention 
 in proportion to the importance of the subject ; and, 
 to make use of a geometrical expression, their right 
 to obviate a danger is in a compound ratio of the 
 degree of probability and the greatness of the evil 
 threatened. If the evil in question be of a support- 
 able nature, if it be only some slight loss, matters are 
 not to be precipitated ; there is no great danger in 
 delaying our opposition to it, until there be a certainty 
 of our being threatened. But if the safety of the 
 " Wolff, Jus Gentium, §§ 651, 652. 
 
184 RIGHT OP SBLP-PRESEBVATION. 
 
 State lies at stake, our precaution and foresight can- 
 not be carried too fari«." Accordingly, as experience 
 shows that there is in human nature a tendency to 
 abuse power wherever it may be done with im- 
 punity, the circumstance, that the possession of power 
 is generally accompanied with the wUl to abuse it, 
 entitles a State, when its safety is at stake, to treat 
 the first appearance of such a combination of power 
 and will as a sufficient warning^''. Further, if a Nation 
 has exhibited unmistakable signs of undue ambition or 
 rapacity, she becomes an object of suspicion to her 
 neighbours, whose duty it is to stand their ground 
 against her, and if she is at any moment on the point 
 of acquiring a formidable accession of power, they 
 may demand securities from her, and if she hesitates 
 to give them, they may prevent the probable danger 
 to themselves by force of arms". When the safety 
 of the State is at stake, the Right of Self-Preserva- 
 tion may warrant a Nation in extending its precau- 
 tionary measures beyond the limits of its own domin- 
 ions, and even in trespassing with that object on 
 a neighbour's territory. As the Eight of Self-Pre- 
 servation is prior and paramount to the Eight of Do- 
 minion and Property in the case of individuals, so the 
 Right of Self-Preservation is prior and paramount to 
 the Eight of Territorial Inviolability in the case of 
 Nations", and if ever these Rights conflict, the former 
 is entitled to prevail within the Hmits of the neces- 
 sity of the case ". Thus, if a Nation takes possession 
 
 15 Droit des Gens, Lib. III. " Vattel, L. m. c. 3. § 49, 50. 
 
 c. 3. § 44. 1^ Phillimore, Tom. I. § 214. 
 
 " Potentia igitur crescens in ^^ Genti unicuique competit 
 
 hoc casu non mode inter rationes jus ad ea quibus periculum inte- 
 
 suasorias locum habet, sed in ritus avertere et ea, quae interi- 
 
 ipsas quoque justificas influit, turn afferrepossunt,vitare potest, 
 
 quatenus abusus potentise non quantum datur. Wolff, Jus Gen- 
 
 ampliTis dubius. Wolff, § 650. tium, § 34. 
 
EIGHT OF SELF-PEESERVATION. 185 
 
 of another Nation's territory with a view to conduct 
 hostile operations against a third Nation, the third 
 Nation may in virtue of its Eight of Self-Preservation 
 lawfully pass the frontier of the territory, which has 
 been so occupied, for the purpose of dislodging its 
 enemy from it. Urgent and indisputable danger 
 may even authorise a Nation to occupy the territory 
 of a neutral Nation, in order to prevent the execution 
 of an enemy's intention to occupy it for the purposes 
 of carrying on its hostilities with greater advantage, 
 whenever the Nation to which the territory belongs 
 is unable or unwilling to defend it. But the exercise 
 of this Eight, which Kluber^" regards as a Right of 
 Necessity, entails the obligation to make compensation 
 to the neutral State for any damages which may have 
 accrued to it^^. 
 
 § I ri. Two or more Nations have a right to unite Eight of 
 themselves into one Independent Political Body, so as ra'tion.* 
 to become one Nation, provided the views, by which 
 they are so actuated, be not prejudicial to other Na- 
 tions. But if each of the Nations in question be able 
 separately and without assistance to govern and sup- 
 port itself, and to defend itself from insult and aggres- 
 sion, it may be reasonably presumed, that the object of 
 their union is to obtain dominion over their neigh- 
 bours, and on occasions where it is impossible or too 
 dangerous to wait for an absolute certainty, other 
 Nations will be justified in acting on a reasonable 
 
 ^° Kliiber, Pt. II. § 44. reign is not able to defend it. 
 
 " Extreme necessity may But when the danger is over, 
 
 even authorise the temporary we must immediately restore the 
 
 seizure of a neutral town, and place, and pay all the charges, 
 
 the putting a garrison therein, inconveniences, and damages, 
 
 with a view to cover ourselves which we have occasioned by 
 
 from the enemy, or to prevent seizing it. Vattel, L. III. c. 3. 
 
 the execution of his designs § 122. 
 against that town, when the sove- 
 
186 RIGHT OF SELF-PRESERVATION. 
 
 presumption, and may forthwith have recourse to 
 measures of Self-Defence. On these grounds, Vattel^^ 
 maintains, that the Nations of Europe would have 
 been justified in combining together against Louis 
 XIV of France, if he had attempted to unite the 
 Monarchy of Spain to that of France ; for to have 
 tamely suffered an union of the two Monarchies in 
 the person of a Prince who had already given proofs of 
 imperious pride and insatiable ambition, " would have 
 been, according to all the rules of human probability, 
 equivalent to surrendering the rest of Europe into 
 servitude, or at least would have rendered the condi- 
 tion of each European State too critical and precari- 
 ous to be endurable by Independent Political Bodies. 
 The safety, therefore, of the other Nations of Europe 
 would have justified them in opposing by anticipation 
 such a formidable accession to the power of so ambi- 
 tious a Prince." The right is stiU clearer, if a formid- 
 able Power should betray an unjust and ambitious 
 disposition by doing the least injustice to another 
 Power ^^. " In such a case, all Nations may avail 
 themselves of the occasion," writes Vattel, " and by 
 joining the injured Party thus form a Coalition of 
 strength, in order to humble the ambitious Potentate, 
 and disable him from so easily oppressing his neigh- 
 bours, or keeping them in continual awe and fear. 
 For an injury gives to the injured Party a right to 
 provide for his future safety by depriving an unjust 
 Aggressor of the means of doing injury, and it is law- 
 ful and even praiseworthy to assist an injured Party, 
 and to aid him in obtaining redress and in protecting 
 himself from injury 2*." The supreme arbitrator be- 
 tween Nations is the sword, but force of arms is not 
 
 '■'^ Droit des Gens, L. III. c. 3. '■^ "Wolff, Jus Gentium, § 651. 
 § 44- '* Vattel, L. III. c, 3. § 45. 
 
EIGHT OF SELF-PRESERVATION. 187 
 
 the only expedient by which Nations may guard 
 themselves against a Formidable Power. There is a 
 moral sanction to the mutual duties of Nations, in the 
 fear of provoking general hostility and incurring its 
 probable evils, in case a Nation should violate the Com- 
 mon Law ; and these mutual sanctions are enhanced 
 by the formation of Confederacies amongst the less 
 powerful Nations for the purpose of maintaining the 
 Balance against a Nation, whose Power causes them 
 alarm ^®. 
 
 §112. The Eight of Confederacy under the Natural The Ba- 
 Law of Nations is at the foundation of the Right of Power. 
 Intervention in the interest of what has been termed, 
 since the Peace of Utrecht, (anno 171 3,) the Balance 
 of Power. The System of Balance, or European Equili- 
 brium, is a creation of Positive Law. The outlines of 
 the System may be discovered in the Provisions of 
 the Treaty of Westphalia, (anno 1648,) and of the 
 Treaties of Copenhagen, (anno 1648,) and of Oliva, 
 (anno 1 660,) but the express recognition of the Sys- 
 tem of Balance, as a rule of Positive Law, dates from 
 the Treaties of Utrecht, (anno 1713,) concluded ex- 
 pressly according to the recital ia the Treaty between 
 Great Britain and Spain, "Ad formandam stabilien- 
 damque pacem ac tranqiiillitatem Christiani orbis 
 Justo Potentiae ^quilibrio^^." The maintenance of 
 the Balance of Power in Europe is expressly set forth 
 in the Acts of Renunciation to the Crown of Spain 
 executed by the French Princes of the House of 
 Bourbon, which are inserted in the body of the 
 Treaties of Utrecht, as the motive cause of their 
 Renunciation. The European System of Positive 
 Law may be said to have rested upon the Treaties 
 
 ^^ Wolff, Jus Gentium, § 652. ^' Schmauss. Corp. Jur. Gent. 
 Kluber, § 42. Academicum, p. 14 19. 
 
188 EIGHT OP SELF-PRESERVATION. 
 
 of Utrecht down to the French Revolution, (anno 
 1789,) although during that period various elements 
 were introduced into that System, which were cal- 
 culated to derange the Balance of Power established 
 at Utrecht. The wars of the French Revolution 
 crumbled that System into atoms, and one main 
 object of the Congress of Vienna, next only to that 
 of settling a G-eneral Peace, was to secure the main- 
 tenance of the repose of Europe by a readjustment 
 of the Balance of Power. The intentions of the 
 Alhed Powers in this sense had been avowed by 
 them in the Preamble of the Convention of Paris 
 (23 April, 18 14)". That the Balance of Power is 
 a principle at the foundation of the Positive Law of 
 Europe, and that the Powers which were Parties to 
 the Treaties of Vienna acted upon that principle in 
 framing the Great European Settlement of 181 5, 
 has been recorded by the Five Powers in several 
 important International Acts. Thus the Five Great 
 Powers, which were Parties to the Treaty of Paris, 
 having been invited by the King of Holland to 
 assist him in the settlement of the disturbed rela- 
 tions between the Belgian Provinces and the Dutch 
 Crown, placed formally on record their view of the 
 grounds which justified their Intervention. Having 
 expressly stated 2*, that the original object of uniting 
 the Belgian Provinces with Holland was to establish 
 a Just Equilibrium in Europe, they proceed to say 
 that the Five Powers had a right, and that events 
 imposed upon them a duty, to prevent the Belgian 
 Provinces, as an Independent State, causing any 
 disturbance of the general security and the European 
 
 " Martens, N. R. I. p. 706. (19 Feb. 1831.) Martens, N. R. 
 ^^ Nineteenth Protocol of the X. p. 197. British and Foreign 
 Conferences of the Five Powers, State Papers, XVIII. p, 779. 
 
RIGHT OP SELF-PRESERVATION. 189 
 
 Equilibrium. The same principle was affirmed in 
 the Treaty of London (8 May, 1852)^^ concluded 
 between the Five Powers and Sweden on the one 
 hand, and the King of Denmark on the other hand, 
 in recognition of the establishment of an order of 
 Succession in the Danish Provinces of the Monarchy, 
 which should harmonize with that already existing 
 in the German Duchies. It was on that occasion 
 formally declared, "that the maintenance of the 
 integrity of the Danish Monarchy was intimately 
 connected with the general interests of the Euro- 
 pean Equilibrium," The same principle was relied 
 upon by the Governments of Great Britain and 
 France, when they protested in 1851 against the 
 proposed incorporation of any non-German States 
 into the Germanic Confederation^", as a derangement 
 of the European Equilibrium. The last great occa- 
 sion for the recognition of the principle of the 
 Balance of Power, as lying at the foundation of that 
 branch of the Positive Law of European Nations, 
 which may be termed the Public Conventional Law 
 of Europe, was furnished by the latest settlement 
 of the Eastern Question. The Preamble of the 
 Treaty of Constantinople, concluded between Great 
 Britain and France on the one hand, and the Otto- 
 man Porte on the other (March 12, 1854)^^ recites, 
 " that her Majesty the Queen of Great Britain and 
 Ireland, and his Majesty the Emperor of the French, 
 have been requested by his Highness the Sultan to 
 assist him in repelling the attack, which has been 
 made by his Majesty the Emperor of all the Kussias 
 
 "' Annuaire Historique Uni- randum. App. p. 176. English 
 versel, 1851. Appendix, p. note. App. p. 181. 
 191. ' ° ^i" SI Martens, N. E. G6n. XV. 
 
 "o Annuaire. French Memo- p. 565. 
 
190 EIGHT OF SELF-PRESERVATION, 
 
 on the Territory of the Sublime Porte, an attack 
 whereby the Integrity of the Ottoman Porte and the 
 Independence of the Sultan's throne are endangered, 
 and as their Majesties are perfectly convinced that 
 the existence of the Ottoman Empire in its present 
 extent is of essential importance to the Balance of 
 Power amongst the States of Europe ; and as they 
 have in consequence agreed to afford his Highness the 
 Sultan the assistance which he has requested to this 
 end, their aforesaid Majesties and his Highness the 
 Sultan have deemed it proper to conclude a Treaty, 
 so as to attest their intentions in conformity with 
 the above." 
 
 In the Conferences subsequently held at Vienna 
 in 1855 between France, G-reat Britain, Austria, the 
 Ottoman Porte, and Russia, the principle of main- 
 taining the European Equilibrium was repeatedly 
 invoked by all Parties, as supplying a rule for ap- 
 proving or rejecting the various proposals of accom- 
 modation. This principle was more especially reHed 
 upon in reference to the Neutralisation of the Black 
 Sea, and to the maintenance of the ancient Eule of 
 the Ottoman Porte, according to which the Passage 
 of the Straits leading from the Mediterranean into 
 the Black Sea is closed against the vessels of war 
 of all Nations, whilst the Ottoman Porte remains at 
 peace with all Nations ^^. 
 
 ^^ Protocol to the 12th Conference, (21 April, 1155.) Mar- 
 tens, N. R. G^n. XV. p. 676. 
 
CHAPTER VIII. 
 
 EIGHT OF ACQUISITION. 
 
 Establishment of a Nation in a Country — Juridical Notion of 
 Possession — Possession as founding a Right of Property — Primitive 
 and Derivative Acquisition — Settlement of a Nation — Right of 
 Occupation — Right of Discovery — Notification of Discovery — Acts 
 Confirmatoiy of Occupation — Discovery followed by Settlement 
 constitutes a Perfect Title — Extent of Right of Discovery — Extent 
 of Right of Occupation — Principles of Law advanced by the 
 United States of America — Discovery of the Mouth of a River — 
 Conflict with Acknowledged Law — Right of Settlement — Usucaption 
 or Prescription — Territory of the Hudson's Bay Company — Right 
 of contiguity — Arcifinious States — Discovery of the New World — 
 Settlements in the New "World — Possessory Right of Native 
 Indians — Agriculture in relation to Pasture — The Indian Title — 
 Derivative Acquisition — Title by Cession. 
 
 ^113. Bv virtue of its Independence and its Eight Establish- 
 of Self-Preservation, every Nation is entitled to per- Nation in 
 feet freedom of action with a view to promote its own * ^°""*''y- 
 welfare within a sphere, which is consistent with the 
 Independence and Self-Preservation of other Nations. 
 It may accordingly not merely make use of the gifts 
 of nature for the satisfaction of its immediate wants, 
 but, if they are susceptible of exclusive possession, it 
 may appropriate them to meet its future wants. 
 This Right of a Nation to possess a thing {Jus Possi- 
 dendi) applies not merely to the fruits of the earth, 
 but to the soil which produces it. Vattel regards 
 the right of a Nation to possess a territory as inci- 
 dent to its Eight of Self-Preservation, " The earth," 
 he writes^, " belongs to mankind in general, destined 
 by the Creator to be their common habitation, and to 
 supply them with food ; they all possess a Natural 
 ' Droit des Gens, L. I. § 203. 
 
192 RIGHT OF ACQUISITION. 
 
 Eight to inhabit it, and to derive from it whatever is 
 necessary for their sustenance and suitable to their 
 wants. But when the human race became extremely 
 multiplied, the earth was no longer capable of furnish- 
 ing spontaneously and without culture sufficient sup- 
 port for its inhabitants ; neither could it have re- 
 ceived proper cultivation from wandering tribes of 
 men continuing to possess it in common. It there- 
 fore became necessary that those tribes should fix 
 themselves somewhere, and appropriate to themselves 
 portions of land, in order that they might, without 
 being disturbed in their labour, or being disappointed 
 in the fruits of their industry, apply themselves to 
 render those lands fertile, and thence derive their 
 sustenance. Such must have been the origin of the 
 Eights of Property and Domain, and it was a suffi- 
 cient ground to justify their establishment. Since 
 their introduction, the Right, which was common to 
 all mankind, is individually restricted to what each 
 lawfully possesses. The country which a Nation in- 
 habits, whether that Nation has emigrated thither in 
 a body, or the different families of which it consists 
 were previously scattered over the country, and there 
 uniting formed themselves into a political society, 
 that country, I say, is the Settlement of the Nation, 
 and it has a peculiar and exclusive right to it." 
 Juridical J 1 14. The Eight of a Nation to possess a territory 
 Possession, being admitted, it follows that we should consider 
 what constitutes Lawful Possession ; in other words, 
 what constitutes Possession, not merely as the conse- 
 quence of a Eight, but as itself the Foundation of 
 Eights. "All Definitions of Possession," writes Sa- 
 vigny^, "however much they may differ from one 
 
 '^ Das Recht des Besitzes. hasbeentranslatedintoEnglishby 
 Giessen, 1837, p. 2, 3. This work Sir Erskhie Perry. London, 1848. 
 
RIGHT OF ACQUISITION. 193 
 
 another in terms, and even in substance, contain the 
 same general principle as their basis, from which 
 every inquiry into the subject must proceed. By the 
 possession of a thing, we always conceive the con- 
 dition, in which not only one's own dealing with the 
 thing is physically possible, but every other person's 
 deaHng with it may be prevented. Thus the seaman 
 possesses his ship, but not the water in which it 
 moves, although he makes each of them subserve his 
 purpose. The condition of a thing, which is termed 
 Detention, and upon which aU our notions of Posses- 
 sion are founded, is not by itself in any way an object 
 of Legislation, and the Notion of it is not in itself a 
 Juridical Notion, but it bears an immediate relation 
 to a Juridical Notion, whereby it becomes itself an 
 object of Legislation. For as Property consists in 
 the legal power of dealing with a thing at will, and 
 of excluding every one else from its enjoyment, the 
 exercise of Property takes place by Detention, and 
 Detention is accordingly the condition of Fact, which 
 corresponds to Property as the condition of Law." 
 The Eight to possess {Jus Possidendi) thus forms 
 part of the Theory of Property, and the act of 
 Detention acquires a Juridical character in connec- 
 tion with the Right to possess. 
 
 ^115. The lawfulness of all possession depends Possession 
 upon what the later Eoman Jurists call the mocZws bright of ^ 
 acquirendi. The Act of Detention ]per se in the case P^P^^'y- 
 of a person detaining a thing constitutes a condition 
 of Fact, which has been termed by Jurists Natural 
 Possession. The condition of Fact involved in bare 
 Detention (nuda rei prehensio) is regarded as ter- 
 minable at any moment ; but if a person detains a 
 thing animo sili habendi, and manifests his inten- 
 tion of exercising, ownership for himself, siich con^ 
 
 PART I. 
 
194 RIGHT OF ACQUISITION. 
 
 tinuing Detention gives rise to a condition of Law, 
 and it has consequently been termed Legal Posses- 
 sion. " Apiscimur possessionem animo et facto, neque 
 per se animo aut per se corpore *." The condition of 
 Law arises in this manner. There is an obligation of 
 Natural Law upon all persons to refrain from Per- 
 sonal violence, for Personal inviolability is a Natural 
 Right. But the continuing Detention of a thing, 
 animo sihi hdbendi, cannot be interrupted or put an 
 end to against the wiU of the party so detaining it, 
 without violence to his person. There thus arises an 
 obligation of Natural Law to refrain from disturbing 
 a party who is in possession of a thing, as the In- 
 violability of the Person extends to those acts of 
 disturbance, whereby the Person might at the same 
 time be, however indirectly, interfered with. The 
 Eight of Property is thus a Corollary to the Right 
 of Personal Inviolability, for the Bight of Property 
 in a thing, or the lawful power of dealing with it at 
 will, may be said to have arisen, when all persons 
 recognise the party in Possession of a thing to have 
 a Right of excluding them from dealing with it, and 
 that Eight is de facto recognised, when aU persons 
 admit an obHgation on themselves to refrain from 
 disturbing him in his possession of it. Possession 
 accordingly, that is, a continuing Detention animo sibi 
 hdbendi as distinguished from bare Detention, gives 
 rise to the right of not being disturbed ; and when 
 the Possession itself is rightful in its origin, the 
 Eight which ensues is a perfect Bight. In respect 
 of this Right, certain rules*, as to the acquisition and 
 
 ° Dig. L. XLI. Tit. 11. § 3. Eoman Jurisconsults, who held 
 
 * These rules, and many others them to be institutions of the 
 
 which refer to Dominion and its Jus Gentium, or common Law 
 
 incidents, are borrowed from the of all Nations. 
 
EIGHT OF ACQUISITION. 195 
 
 loss of Possession, have been established. The first 
 rule is, that a person may take possession of a thing 
 which has no owner, so as to acquire Eightful Posses- 
 sion of it ; and Property is in such case acquired 
 simultaneously with Possession. " Quod enim nullius 
 est, id ratione naturali occupanti conceditur ^." The 
 second rule is, that a person may acquire Rightful 
 Possession of a thing of which the previous owner 
 has renounced Possession, either relatively in his 
 favour by Cession, or absolutely to the first comer 
 by Abandonment. 
 
 § ii6. Bightful Acquisition, as the foundation of Primitive, 
 the Eight of Property in individuals, is accordingly vafiv^*^"- 
 either primitive or derivative *. Primitive Acqui- ^™'ti°"- 
 sition is termed Occupation. " On appelle occupa- 
 tion un fait, par lequel quelqu'un declare qu'une 
 chose, qui n'est h. personne, doit dtre h, lui, et la i6- 
 duit en tel 6tat qu'elle pent 6tre sa chose. II parolt 
 de Ik que le droit d'occuper une chose, ou de s'en 
 emparer, appartient naturellement k chacun indiffd- 
 remment, ou bien que c'est un droit commun de tous 
 les hommes, et comme on appelle manifere primitive 
 d'acqu^rir celle par laquelle on acquiert le domaine 
 d'une chose qui n'est k personne, il s'ensuit que I'occu- 
 pation est la mani^re primitive d'acqu^rir ''." 
 
 Such being the Law of Nature in regard to primi- 
 tive acquisition on the part of individuals, the Law 
 of Nations is in perfect accord with it. " All man- 
 kind," writes Vattel, " have an equal right to things 
 that have not yet fallen into the hands of any one ; 
 and those things belong to the person who first takes 
 possession of them. When, therefore, a Nation finds 
 a country uninhabited and without an owner, it may 
 
 » Dig. L. XLI. Tit. I. § 3. ' Wolff, Institutions du Droit 
 
 ° Grotius, L. II. c. 3. § i. de la Nature et des Gens, § 210. 
 
 3 
 
196 RIGHT OF ACQUISITION. 
 
 lawfully take possession of it ; and after it has suflfi- 
 ciently made known its will in this respect, it cannot 
 be deprived of it by another Nation. Thus navi- 
 gators going on voyages of discovery, and meeting 
 with islands or other lands in a desert state, have 
 taken possession of them in the name of their Nation, 
 and this title has been usually respected, provided it 
 was soon after followed by a real possession *." 
 Settlement § X 1 7. Settlement accordingly in a country in the 
 '°"' case of a Nation corresponds to the continuing Deten- 
 tion of a thing in the case of an individual, and the 
 Natural Right of a Nation founded on Settlement 
 corresponds to the Natural Eight of an individual 
 founded on Possession. There is thus an obhgation 
 of Natural Law upon all Nations to refrain from dis- 
 turbing a Nation which has settled in a country, 
 which -vpas /vjacant at the time of its settlement. 
 " Un 6tf»t peut acqu^rir des, choses qui n'appartiennent 
 k personne (res nulKus) par Voccupation (originaire), 
 les biens d'autrui au moyen de conventions (occupa- 
 tion derivative) . . . Pour que Voccujiation soit legitime, 
 la chose doit dtre susceptible d'une propriety exclu- 
 sive, elle ne doit appartenir k personne ; I'^tat doit 
 avoir I'intention d'en acqu^rir la propriety et en 
 prendre possession, c'est h dire, la mettre entiferement 
 h, sa disposition et dans son pouvoir physique. Ceci 
 a lieu lorsqu'il a teUement influd sur la chose, quelle 
 ne peut lui 6tre enlevde sans lui ravir en meme temps 
 le fruit du changement legitime qu'il y a op^re '." 
 iRightof §118. The exclusive Eight of a Nation to Territory 
 occupation, ^j^j^^]^ j^^ }^j^g acquired by Occupation, has been uni- 
 versally recognised by the Nations of Europe, and 
 in respect of such Eight certain rules have become 
 
 ' Droit des Gens, L. I. § " Kliiber, Droit des Gens, 
 207. Part II. c. I. § 125. 
 
RIGHT OP ACQUISITION. 197 
 
 established by usage, whereby the condition of Law 
 constituting Occwpation may be placed beyond doubt. 
 The Natural Eight of an individual to appropriate 
 the object of his discovery rests upon the presump- 
 tion that it has no owner, which presumption, in the 
 case of the first comer, is a necessary presumption, 
 and consequently a prsesumjptio juris et de jure. But 
 the act of discovery alone does not constitute Occu- 
 pation by the Law of Nations. The title which results 
 from Discovery is only an inchoate title. It is not 
 recognised in the Roman Law, nor has it a place in 
 the system of Grrotius or of Puffendorf The prin- 
 ciple, however, upon which it is based, is noticed by 
 De Wolff. 
 
 " Pareillement si quelqu'un renferme un fond de 
 terre dans des limites, ou le destine k quelque usage 
 par un acte non passager, ou que se tenant sur ce 
 fond limits, il disc en presence d'autres hommes 
 qu'y. veut que ce fond soit h, lui, il s'en empare "." 
 M. Luzac has appended to this passage the following 
 note, " Nous ne trouvons pas cette occupation dans 
 le droit Eomain. Cest sur elle que sont fondds les 
 droits, que les puissances s'attribuent, en vertu des 
 d^couvertes." 
 
 § 119. A Nation is under an obligation towards Right of 
 other Nations analogous to that under which an in- ^^°°'^^'^' 
 dividual stands towards other individuals with regard 
 to the discovery of a thing, if it seeks to found an 
 exclusive title to its possession upon the Eight of 
 Discovery. It must manifest in some way or other 
 to other Nations its intention to appropriate the ter- 
 ritory to its own purposes. The Comity of Nations 
 then sanctions a presumption, that the execution of 
 the intention will follow within a reasonable time the 
 >" Wolff, Institutions du Droit iie la Nature et des Gens, § 213. 
 
198 EIGHT OP ACQUISITION. 
 
 announcement of it. But Natural Eeason requires 
 that the Discovery should be notified to other Nations, 
 otherwise if actual Possession has not ensued, the ob- 
 vious inference would be that the Discovery was a 
 transient act, and that the territory was never taken 
 possession of animo et facto. A Discovery according- 
 ly, which has been concealed from other Nations, has 
 never been recognised as a good title to bar them 
 from settling in a territory : it is an inoperative act. 
 Lord Stowell " has accordingly noticed, as an indis- 
 putable fact, that in newly discovered countries, where 
 a title is meant to be established for the first time, 
 some act of Possession is usually done and proclaimed 
 as a Notification of the fact. 
 Notifioa-_ § 1 20. The mode of Notification, in other words, 
 covery, what acts should be respected by the Comity of Na- 
 tions, and be held sufficient to make known the in- 
 tention of a Nation to avail itself of a discovery, has 
 been a subject of much dispute. The disposition how- 
 ever of Writers, as well as of Statesmen, has been to 
 limit rather than to extend the Comity of Nations in 
 this respect. Thus Vattel writes, " The Law of Na- 
 tions will therefore not acknowledge the Property and 
 Sovereignty of a Nation over any uninhabited coun- 
 tries except those of which it has really taken posses- 
 sion, in which it has formed settlements, or of which 
 it has -actual use. In effect, when Navigators have 
 met with desert countries in which those of other 
 Nations had in their transient visits erected some 
 monuments to show their having taken some possession 
 of them, they have paid as little regard to that empty 
 ceremony, as to the regulation of the Popes, who di- 
 vided a great part of the world between the Crowns 
 of Castile and Portugal 12." 
 " The Fama, 5 Eobinson, p. 1 1 5. ^'^ Droit des Gens, L. I. § 208. 
 
BIGHT OF ACQUISITION, 199 
 
 To the same purport, Martens writes, "Suppose 
 que roccupation soit possible, il faut encore qu elle ait 
 eu lieu effectivement ; que le fait de la prise de pos- 
 session ait concouru avec la volont^ manifesto de s'en 
 approprier I'objet. La simple declaration de volonte 
 d'une Nation ne suffit pas, non plus qu'une Donation 
 Papale, ou qu'une Convention entre deux Nations 
 pour imposer h, d'autres le devoir de s'abstenir de 
 I'usage ou de I'occupation de I'objet en question. Le 
 simple fait d'avoir 6te le premier h, d^couvrir ou h, 
 visiter une lie, &c., abandonnde ensuite, semble insuf- 
 fissant, mdme de I'aveu des Nations, tant qu'on n'a 
 point laiss^ de traces permanentes de possession et de 
 volenti ; et ce n est pas sans raison qu'on a souvent 
 dispute entre les Nations, si des croix, des poteaux, 
 des inscriptions, &c., suflSsent pour acqudrir ou pour 
 conserver la propriety exclusive d'un pays, qu'on ne 
 cultive pas "." 
 
 Kltiber to the same effect, writes thus, " Pour ac- 
 qu6rir une chose par le moyen de roccupation, il ne 
 suflSt point d'en avoir seulement I'intention, ou de 
 s'attribuer une possession purement mentale ; la de- 
 claration mdme de vouloir occuper,faite anterieurement 
 k I'occupation effectude par un autre, ne suffirait pas. 
 II faut qu'on ait rdellement occupd le premier, et c'est 
 par cela seul, qu'en acquerant un droit exclusif sur la 
 chose, on impose k tout tiers I'obligation de s'en ab- 
 stenir. L'occupation d'une partie iahabitle et sans 
 maitre du Globe de la Terre, ne peut done s'etendre 
 plus loin qu'on ne peut tenir pour constant qu'il y ait 
 eu effectivement prise de possession, dans I'intention 
 de s'attribuer la propridte. Comme preuves d'une 
 pareille prise de possession, ainsi que de la continu- 
 ation de la possession en propri6te, peuvent servir 
 ^^ Precis du Droit des Gens, § 37. 
 
tiou 
 
 200 EIGHT OP ACQUISITION. 
 
 tous les signes ext^rieurs qui marquent roccupation 
 et la possession continue i*-" To this passage there is 
 appended the following note. " Le droit de propri^t^ 
 d'etat pent, apres le droit des Gens, continuer k ex- 
 ister, sans que I'dtat continue la possession corporelle. 
 II suffit qu'il existe un signe, qui dit que la chose n'est 
 ni res nullius, ni delaissee. En pareil cas, person ne 
 ne saurait s'approprier la chose, sans ravir de fait a 
 celui, qui I'a poss^d^e jusqu'alors en propriety, ce qu'il 
 y a op^re de son influence d'une manifere legitime : en- 
 lever ceci, ce serait blesser le droit du propri^taire." 
 Acta con- § 121. It is difficult to lay down absolutely what 
 ofOccu^- constitutes a sufficient sign, that a territory has been 
 effectively reduced into Possession after Discovery. 
 Bynkershoek, who was originally opposed to the con- 
 tinuance of any exclusive Right founded on Occu- 
 pation, unless natural Possession was maintained, 
 subsequently qualified his view in deference to the 
 objections of Christian Thomasius : " Res immo- 
 bUes," writes Thomasius ^°, " quae sunt nullius, occu- 
 patae esse censentur, si cceptse sunt custodiri, aut 
 si coeperim solo uti ad id, ad quod destinatum 
 est natur^, et usus durat ; V. G. Si sedificaverim 
 in solo, si solum vallo et fossa vel ssepibus circum- 
 dederim, conservatur possessio, quamdiu continu- 
 atur custodia, etiamsi non incu.mbam possession!, sed 
 abeam. V. G. Si ager consitus sit, et fructus a me 
 satos ferat, si ager circumseptus sit, si sedes extructae 
 maneant, si clavem ad aedes habeam, si alios arceam 
 ab usu rei." " Hsec ille," writes Bynkershoek, " et 
 recte, nam omnibus his, quos recenset, modis possessio 
 ex apprehensione coepta, porro continuatur, et conti- 
 nuata possessione continuatur dominium. Cultura 
 
 " Droit des Gens, §^126. HuberumdeJureCivitatis,L. II. 
 
 " Annotationes ad Ulrioum s. 11. §43. 
 
RIGHT OF ACQUISITION. 201 
 
 itaque et cura agri possessionem quam maxime indi- 
 cat. Neque enim desidero vel desideravi unquam, ut 
 tunc demum videatur quis possidere, si res mobiles 
 ad instar testudinum dorso ferat suo, vel rebus im- 
 mobilibus incubet corpore, ut gallinse solent incubare 
 ovis. Prseter animum possessionem desidero, sed 
 qualemcunque, quse prolet me nee corpore desiisse 
 possidere '^." 
 
 J 122. When Discovery has been followed by the Discovery 
 Settlement of a Nation, other Nations in accordance s°ettiement^ 
 with the Law of Nature recognise a perfect title in «°»s'i*"'«» 
 
 o i _ a perfect 
 
 the occupant. Where discovery has not been imme- title. 
 diately followed by settlement, but the fact of dis- 
 covery has been notified, other Nations by courtesy 
 pay respect to the notification, and the Usage of Na- 
 tions has been to presume that Settlement will take 
 place within a reasonable time j but unless discovery 
 has been followed within a reasonable time by some 
 sort of settlement, the presumption arising out of 
 notification is rebutted by non user, and lapse of time 
 gives rise to the opposite presumption of Abandon- 
 ment. Thus in the Conference ^^ held at London be- 
 tween the Commissioners of Great Britain and of the 
 United States of North America in 1826, the British 
 Commissioaers, Mes^s. Huskisson and Addington, 
 maintained these views : " Upon the question how 
 far prior discovery constitutes a legal claim of Sove- 
 reignty, the Law of Nations is somewhat vague and 
 undefined. It is however admitted by the most 
 approved writers, that mere accidental discovery, 
 unattended by exploration, by formally taking pos- 
 session in the name of the discoverer's Sovereign, by 
 occupation and settlement more or less permanent, 
 
 " De Dom. Maris, c. i. " British Statements annexed to the 
 Protocol of the Sixth Conference. 
 
202 EIGHT OF ACQUISITION. 
 
 by purchase of the territory on receiving the Sove- 
 reignty from the Nation, constitutes the lowest 
 degree of title ; and that it is only in proportion as 
 first discovery is followed by any or all of these acts, 
 that such title is strengthened and confirmed." Mr. 
 Gallatin, on the other hand, the Plenipotentiary of 
 the United States i^, thus states the American view, 
 " It may be admitted, as an abstract principle, that, 
 in the origin of Society, first occupancy and culti- 
 vation were the foundation of the rights of private 
 property and of National Sovereignty. But that 
 principle, on which principally, if not exclusively, it 
 would seem that the British Grovernment wishes to 
 rely, could be permitted, in either case, to operate 
 alone and without restriction, so long only as the 
 extent of vacant territory was such, in proportion to 
 the population, that there was ample room for every 
 individual and for every distinct community or Na- 
 tion, without danger of collision with others. As in 
 every Society, it had soon become necessary to make 
 laws, regulating the manner in which its members 
 should be permitted to occupy and to acquire vacant 
 land within its acknowledged boundaries ; so also 
 Nations found it indispensable for the preservation of 
 peace, and for the exercise of distinct jurisdiction, 
 to adopt, particularly after the discovery of America, 
 some -general rules, which should determine the im- 
 portant previous question, 'Who had a right -to 
 occupy.' 
 
 " The two rules generally, perhaps universally, re- 
 cognised and consecrated by the Usage of Nations, 
 have followed from the nature of the subject. 
 
 "By virtue of the first, prior discovery gave a right 
 
 " American Couuterstatement annexed to the Protocol of the 
 Seventh Conference. 
 
EIGHT OF ACQUISITION. 203 
 
 to occupy, provided that occupancy took place within 
 a reasonable time, and was ultimately followed by 
 permanent settlement and by the cultivation of the 
 soil." ■ 
 
 " In conformity with the second, the right derived 
 from prior discovery and settlement, was not confined 
 to the spot discovered or first settled. The extent of 
 territory which would attach to such first discovery 
 or settlement, might not in every case be precisely 
 determined. But that the first discovery and subse- 
 quent settlement within a reasonable time of the 
 mouth of a river, particularly if none of its branches 
 had been explored prior to such discovery, gave the 
 right of occupancy and ultimately of Sovereignty to 
 the whole country drained by such river and its seve- 
 ral branches, has been generally admitted. And in a 
 question between the IJnited States and Great Bri- 
 tain, her acts have with propriety been appealed to, 
 as showing that the principles on which they rely 
 accord with their own ^^." 
 
 ^ \2'\. The question as to the extent of territory Extent of 
 
 ^- 1 ^1 J- P i. • • J. 4.1, Bight of 
 
 over which the discovery oi a part gives rise to the Discovery, 
 right of occupancy, may receive a solution by refer- 
 ence to the principles of Law, which decide to what 
 extent natural possession must go in order to give a 
 title to more than is actually inhabited. It is not 
 necessary in order to constitute the occupant of a 
 thing the legal proprietor of it, that he should have 
 natural possession of the whole of it ; if he has pos- 
 session of a part, which cannot be separated from the 
 whole, he is in possession of the whole. The Koman 
 Jurists applied this principle to the possession of 
 land, "Quod autem diximus et corpore et animo 
 acquirere nos dehere possessionem, non utique ita 
 '' Message of President Adams to Congress, Dec. 28, 1827. 
 
204 KIGHT OP ACQUISITION. 
 
 accipiendum est, ut qui fundum possidere velit, 
 omnes glebas circumambulet, sed suflScit quamlibet 
 partem ejus fundi introire, dum mente et cogitatione 
 hac sit, uti totum fundum usque ad terminum velit 
 possidere ^''." In the case of a Legal Entity, as for 
 instance the projperty of a farm or garden, the Law 
 enables us to ascertain its boundaries by reference to 
 records, and there is no practical difficulty in deter- 
 mining the extent of land over which the possession 
 of a part carries with it the Eight of Possession, (Jus 
 Possessionis.) But in the case of an unoccupied 
 country, the natural possession of a part cannot carry 
 with it the legal possession of the whole ; as if it 
 were so, there would be no territory legally vacant on 
 the mainland, seeing that the first settlers in any 
 part of a great Continent would by virtue of occupy- 
 ing that part be in rightful possession of the whole. 
 Extent of ^ 1 24. " If at the same time," writes VatteP^ "two 
 Occupa^^ or more Nations discover and take possession of an 
 *i°"- island or any other desert land without an owner, 
 they ought to agree between themselves and make 
 an equitable partition ; but if they cannot agree, 
 each will have the Right of Empire and the Domain' 
 in the parts in which they have first settled." So far 
 Vattel seems to restrict the Right of Possession to 
 the country actually taken possession of; but in an- 
 other passage he indirectly points to something more. 
 " It may happen ^^, that a Nation is contented with 
 possessing only certain places, or appropriating to 
 itself certain rights in a country which has not an 
 owner, without being solicitous to take possession of 
 the whole country. In this case, another Nation may 
 take possession of what the first has neglected : but 
 
 '" Dig. XLI. Tit. II. § 3. " Droit des Gens, L. II. § 9. 
 
 « Ibid. § 98. 
 
RIGHT OF ACQUISITION. 205 
 
 this cannot be done without allowing aU the rights 
 acquired by the jSrst to subsist in their full and abso- 
 lute Independence." Hence if a Nation has occupied 
 a territory, it has a right to every thing, as appurte- 
 nant to the territory, which is necessary for the in- 
 tegrity and security of its possession. Upon an ana- 
 logous principle, when a Nation has discovered a 
 country, and notified its discovery, it is presumed 
 to intend to take possession of the whole country 
 within those natural boundaries which are essential 
 to the Independence and Security of its Settlement, 
 and its Right of Discovery is coextensive with such 
 limits. 
 
 J 125. The principles applicable to such questions Principles 
 were discussed by the Commissioners of the United adva*nMd 
 States of America, in the negociations with the Com- ^J^^^ 
 missioners of Spain, on the subject of the Western states of 
 boundary of Louisiana. " The principles," they ob- 
 serve, " which are applicable to the case, are such as 
 are dictated by reason, and have been adopted in 
 practice by European Nations in the discoveries and 
 acquisitions which they have respectively made in 
 the New World. They are few, simple, intelligible, 
 and at the same time founded in strict justice. The 
 first of these is that, when any European Nation 
 takes possession of any extent of sea-coast, that pos- 
 session is understood as extending into the interior 
 Country, to the sources of the rivers emptying within 
 that coast, to all their branches, and the country they 
 cover, and to give it a right in exclusion of aU other 
 Nations to the same ^s. It is evident that some rule 
 or principle must govern the rights of European 
 Powers in regard to each other, in all such cases, 
 and it is certain that none can be adopted, in those 
 2' MImoire de rAm^rique, p. 116. 
 
206 EIGHT OF ACQUISITION. 
 
 cases to wHch it applies, more reasonable or more 
 just than the present one. Many weighty considera- 
 tions show the propriety of it. Nature seems to have 
 destined a larger range of territory so described 
 for the same Society ; to have connected its several 
 parts together by a common interest, and to have 
 detached them from others. If this principle is 
 departed from, it must be by attaching to such dis- 
 covery and possession a more enlarged or contracted 
 scope of acquisition r but a slight attention to the 
 subject will demonstrate the absurdity of either. 
 The latter would be to restrict the rights of an 
 European Power, who discovered and took possession 
 of a new country, to the spot on which its troops or 
 settlements rested : a doctrine which has been totally 
 disclaimed by all the Powers who made discoveries 
 and acquired possession in America. The other 
 extreme would be equally improper ; that is, that 
 the Nation, who made such discovery should, in aU 
 cases, be entitled to the whole territory so discovered. 
 In the case of an Island, whose extent was seen, 
 which might be soon sailed round and preserved by 
 a few forts, it may apply with justice ; but in that of 
 a Continent it would be absolutely absurd. Accord- 
 ingly we find that this opposite extreme has been 
 equally disclaimed and disavowed by the doctrine 
 and practice of European Nations. The Great Con- 
 tinent of America, North and South, was never 
 claimed or held by any one European Nation, nor 
 was either great section of it. Their pretensions 
 have always been bounded by more moderate and 
 rational principles. The one laid down has obtained 
 general assent^*." 
 PoseesBion The Commissioners of the United States on this 
 '* British and Foreign State Papers, 1817-18, p. 327, 
 
RIGHT OF ACQUISITION. 207 
 
 occasion, in applying the above principle to the claim includes 
 of their Nation, were careful not to press the doctrine terelt^. 
 of virtual possession beyond those limits within 
 which the Nations of Europe would be in accord 
 with them. On the authority of the principle above 
 stated, they say, " it is evident that by the discovery 
 and possession of the River Mississippi in its whole 
 length, and the Coast adjoining it, the United States 
 are entitled to the whole country dependent on that 
 Biver, the waters which empty into it, and their 
 several branches within the limits on that coast." 
 In other words, they maintain that the occupation of 
 the sea-coast entitles a Nation to the possession of 
 the inland territory, and of the navigable rivers in- 
 cluded within it ; in which position of Law all Euro- 
 pean -Nations agree. But such a position of Law 
 differs materially from that, which was contended for 
 by Mr. Gallatin on behalf of the United States in the 
 Conferences in London in 1827, already alluded to, 
 ^ 122). 
 
 ^126. The position of Law maintained on behalf Discovery 
 of the United States by Mr. Gallatin in 1827, above^„^t^i,ofa 
 alluded to, (^ 122,) had been previously advanced ^"*'"- 
 by Mr. Eush in 1824, when resident as Minister 
 Plenipotentiary of the United States in London. " I 
 asserted," he writes to the American Secretary of 
 State, Hon. J. Quincy Adams, " that a Nation dis- 
 covering a country hy entering the mouth of its prin- 
 ci^al river at the sea-coast, must necessarily be 
 allowed to claim and hold as great an extent of the 
 Interior country as was described by the course of 
 such principal river and its tributary streams ^^." 
 
 The Plenipotentiaries of the United States in sup- 
 port of their position, appealed to the language of 
 25 British and Foreign State Papers, 1825-26, p. 506. 
 
208 EIGHT OF ACQUISITION. 
 
 ancient Charters accorded to Companies of Adven- 
 turers and to individual explorers by various Euro- 
 pean Sovereigns, as evidence of the practice of Euro- 
 pean Nations in regard to the rights resulting from 
 discovery. It was replied on behalf of the British 
 Plenipotentiaries, that those Charters had no valid 
 force or effect against the subjects of other Sove- 
 reigns, but could only bind and restrain vigore sua 
 those who were under the Jurisdiction of the Grantor 
 of the Charters, and that although they might confer 
 on the Grantees an exclusive title against the sub- 
 jects of the same Sovereign Power, they could only 
 affect the subjects of other Sovereign Powers, so far 
 as the latter might be bound by the Common Law of 
 Nations to respect acts of Discovery and Occupation, 
 effected by the members of other Independent Poli- 
 tical Communities. The reply of the British Com- 
 missioners was in perfect harmony with the principle 
 under which Great Britain, France, and Holland 
 refused to recognise the authority of the Papal Do- 
 nation ; by virtue whereof Spain and Portugal 
 claimed to exclude aU other European Nations from 
 the possession and use of the lands and seas which 
 had been granted to them in the famous Bull of Pope 
 Alexander VI (anno 1493). Accordingly when Men- 
 doza the Spanish Ambassador remonstrated against 
 the expedition of Drake, Queen Elizabeth replied, 
 that " she did not understand why either her subjects 
 or those of any other European Power should be 
 debarred from traflfick in the Indies : that she did 
 not acknowledge the Spaniards to have any title by 
 donation of the Bishop of Eome, so she knew no 
 right they had to any places other than those they 
 were in actual possession of ; for their having touched 
 only here and there upon a Coast, and given names 
 
RIGHT OF ACQUISITION. 209 
 
 to a few rivers and capes, were such insignificant 
 things as could in no way entitle them to property 
 (proprietas) further than in the parts where they 
 actually settled and continued to inhabit ^^" 
 
 ^127- The principle involved in the position of Conflict 
 Law, advanced by the United States on the above tnow^ 
 occasions, seems not to be reconcilable with other ^^'^s^d 
 
 . . . . Law. 
 
 positions of Law, in which all Nations agree. It is 
 inconsistent, in the first place, with one of the posi- 
 tions of Law upon which the United States them- 
 selves rested their claims against Spain respecting 
 the boundary of Louisiana in 1805, (§ 125,) namely, 
 that the discovery and occupation of an extent of sea- 
 coast by a Nation are understood to convey to that 
 Nation a right of possession over the interior country 
 as far as the watershed-line, which position of Law 
 Messrs. Monroe and Pinckney, the Commissioners of 
 the United States, then alleged to have been com- 
 pletely established by the Controversy between 
 France and Spain on the one hand, and Great Britain 
 on the other, which produced the War of 1755 be- 
 tween those Nations. 
 
 It is obvious that a claim to all the lands watered 
 by a river and its tributaries, founded on the dis- 
 covery and occupation of the mouth of the river, must 
 conflict with a claim to all the inland territory as far 
 as the line of watershed, founded on the discovery 
 and occupation of an extent of sea-coast, about which 
 latter position of Law there is no dispute amongst 
 Nations. Such a claim is, in the second place, incon- 
 sistent with the position of Law, that the occiipatioi} 
 de facto of one bank of a river and the river itself by 
 one Nation, does not establish a Right of Possession 
 over the opposite bank, so as to exclude another Na- 
 ^° Camdeni Annales, anno 1580. 
 
 PAKT I. P 
 
210 RIGHT OF ACQUISITION. 
 
 tion from settling upon it, if it should be vacant de 
 facto. The doctrine of the United States Commis- 
 sioners against which Great Britain considered it 
 equally due to herself and to other Powers to enter 
 her protest, may therefore be regarded as extrava- 
 gant, since it derives no countenance from the Law 
 of Nature, which regards rivers as appurtenant to 
 land, and not land as adherent to rivers, and it can- 
 not be admitted without derogating from established 
 rules of Public Law acknowledged by all Nations. 
 Eight of § 128, Settlement, ■y^h.&a. it has supervened on Dis- 
 ett emeu . ^^^^^y^ coustitutes a perfect title, but a title by settle- 
 ment when not combined with a title by discovery is 
 in itself imperfect, and its immediate validity wiU 
 depend apon one or other condition, that the right of 
 discovery has been waived de jure by non-user, or 
 that the right of occupancy has been renounced de 
 facto by the abandonment of the territory. Acqui- 
 sition by settlement is distinguished from acquisition 
 by discovery and acquisition by occupancy in this 
 respect, that no second discovery, no second occu- 
 pancy can take place, whereas a series of settlements 
 may have been successively made, and each of them 
 in its turn abandoned, and the last settlement may, 
 under given circumstances, constitute an exclusive 
 title. Again, the presumption of Law will always be 
 in favour of a title by settlement. " Commodum pos- 
 sidentis in eo est, quod etiamsi ejus res non sit, qui 
 possidet, si modo actor non potuerit suam esse pro- 
 bare, remanet suo loco possessio ; propter quam cau- 
 sam, cum obscura sint utriusque jura, contra petite- 
 rem judicari solet^'." 
 
 Where title by settlement is superadded to title by 
 discovery, the Law of Nations will acknowledge the 
 2' Justin. Institut. L. IV. Tit. 15. § 4. 
 
RIGHT OF ACQUISITION. 211 
 
 settlers to have a perfect title ; but where title by 
 settlement is opposed to title by discovery, although 
 no Convention can be appealed to in' proof of the dis- 
 covery having been waived, still, a tacit acquiescence 
 on the part of the Nation, that asserts the discovery, 
 during a reasonable lapse of time since the settlement 
 has taken place, will bar its claim to disturb the set- 
 tlement. Thus Mr. Wheaton writes : — "The constant 
 and approved practice of Nations shows, that by 
 whatever name it be called, the uninterrupted pos- 
 session of territory or other property for a certain 
 length of time by one State excludes the claim of 
 every other, in the same manner as by the Law of 
 Nations, and by the Muinicipal Code of every Civilised 
 Nation, a similar possession by an individual excludes 
 the claim of every other person to the article of pro- 
 perty in- question. This rule is founded upon the 
 supposition, confirmed by constant experience, that 
 every person will naturally seek to enjoy that which 
 belongs to him ; and upon the inference, fairly to be 
 drawn from his silence and neglect, of the original de- 
 fect of his title, or of his intention to relinquish it^^." 
 Title by settlement, though originally imperfect, 
 may be thus perfected by enjoyment during a reason- 
 able lapse of time, the presumption of Law from un- 
 disturbed possession being, that there is no prior 
 owner, because there is no claimant, and no better 
 proprietary right, because there is no asserted right. 
 The silence of other parties raises a presumption of 
 their acquiescence, and their acquiescence raises a 
 presumption of a defect of title on their part, or of an 
 abandonment of their title. A title once abandoned, 
 whether tacitly or expressly, cannot be resumed. 
 " Celui qui abandonne une chose cesse d'en §tre le 
 ^^ Elements of International Law, part 11. c. iv. § 5. 
 p a 
 
212 RIGHT OF ACQUISITION. 
 
 maltre, et par consequent une chose abandonnde de- 
 vient une chose qui n'est h, personne^^" 
 Usucaption ^129. Title by Settlement, then, as distinguished 
 tion. from title by discovery, when set up as a perfect 
 
 title, resolves itself into title by usucaption or pre- 
 scription. Wolff defines usucaption to be an ac- 
 quisition of domain founded on a presumed deser- 
 tion. Vattel^" says it is the acquisition of domain 
 founded on a long possession, uninterrupted and 
 undisturbed, that is to say, an acquisition solely 
 proved by this possession. Prescription, on the 
 other hand, according to the same author, is the ex- 
 clusion of all pretensions to a right, an exclusion 
 founded on the length of time during which that 
 right has been neglected, or, according to De Wolff's 
 definition, it is the loss of. an inherent right by virtue 
 of a presumed consent. Vattel writing in French, and 
 observing that the word usucaption was but little 
 used in that language, made use of the word prescrip- 
 tion, wherever there were no particular reasons for 
 employing the other expression. The same remark 
 may be applied in reference to our own language, 
 and thus this title is generally spoken of as title by 
 prescription. What lapse of time is requisite to 
 found a valid title by prescription has not been defi- 
 nitely settled. The Law of Nature suggests no 
 rule. Where, however, the claimant cannot allege 
 undoubted ignorance on his part or on the part of 
 those from whom he derives his right, or cannot 
 justify his silence by lawful and substantial reasons, 
 or has neglected his right for such a number of years 
 as to allow the respective rights of the two parties to 
 become doubtful, the presumption of abandonment 
 
 *"■ Wolff, Institutions du Droit de la Nature et dea Gens, § 23. 
 '" Droit des Gens, L. II, c. 1 1 . § 1 40. 
 
HlGHT OF ACQUISITION. 213 
 
 will be established against him, and he will be ex- 
 cluded by ordinary prescription. Lapse of time, in 
 the case equally of Nations as of individuals, robs the 
 parties of the means of proof; so that if a hondjide 
 possession were allowed to be questioned by those 
 who have acquiesced for a long time in the enjoyment 
 of a thing by the possessor of it, length of possession, 
 instead of strengthening, would impair the title of 
 the possessor : the inconvenience of such a result is so 
 obvious, that the practice of Nations and individuals 
 has equally repudiated it. 
 
 § 1 30. Thus in regard to the territory of the Hudson's Territory 
 Bay Company, it was alleged in the negociations pre- son'^^^y'*" 
 liminary to the Treaty of Utrecht, that the French Company. 
 had acquiesced in the settlement of the Bay of Hud- 
 son by the Company incorporated by Charles II. in 
 1663, since M. Fontenac, the Governor of Canada, in 
 his correspondence with Mr. Baily, who was Governor 
 of the Factories in 1637, never complained, "for se- 
 veral years, of any pretended injury done to the 
 French by the said Company's settling a trade, and 
 buUding of forts at the bottom of the Bay^^" The 
 King of England, it is true, in his Charter had set 
 forth the Title of the British Crown, as founded on 
 discovery ; the title by discovery, however, required 
 to be perfected by settlement ; and thus, in the ne- 
 gociations, the subsidiary title by settlement was like- 
 wise set up by the British Commissioners, and the 
 acquiescence of the French was alleged, either as a 
 bar to their setting up any conflicting title by dis- 
 covery, or as establishing the presumption of their 
 having abandoned their asserted rights of discovery ^^ 
 
 " General Collection of Trea- ^^ Twiss on The Oregon Ques- 
 ties,&o., London, 17 10-33, vol. I. tion, p. 171. 
 p. 446. 
 
214 EiaHT OF ACQUISITION. 
 
 Eight of § 131. What extent of territory is de jure append- 
 on igui y. ^^- ^^ ^^^ settlement of a Nation in a given place by 
 reason of Contiguity, must depend upon the circum- 
 stances of each case. It may sometimes be determined 
 without difficulty by the geographical features of the 
 Country, but in many cases it wiU be governed by 
 considerations founded on the necessary uses of the 
 settlers. The principle of Vicinitas, as applied in the 
 Jurisprudence of Imperial Eome, has been admitted 
 by the usage of Nations to control this question in 
 the absence of special circumstances. Thus in the 
 case of alluvial deposits, the Eoman Jurists held that 
 the possessor of the adjoining bank of a river had a 
 proprietary title to them, and if an island were formed 
 in the channel of the river, the possessor of the 
 neighbouring bank had a right of property in it ; on 
 the other hand, if an island were formed in the mid- 
 channel, it would be the common property of the 
 owners of the two banks. Thus, " Quod per aHuvio-^ 
 nem agro nostro flumen adjecit, jure gentium nobis 
 acquiritur^^;" again, "Insula nata in flumine, quod 
 frequenter accidit, si quidem mediam partem fluminis 
 tenet, communis est eorum, qui ab utraque parte flu- 
 minis prope ripam prgedia possident, pro modo latitu- 
 dinis cujusque fundi, quse latitudo prope ripam sit ; 
 quod si alteri parti proximior est, eorum est tantum, 
 qui ab ea parte prope ripam prsedia possident^*." A 
 different practice in the case of Nations, whereby such 
 newly formed lands should be open to the occupancy 
 of the first comer, would manifestly be inconsistent 
 with the security of the Nation, which had previously 
 established itself on the adjoining or neighbouring 
 bank. Upon the like considerations of security, Islands 
 which have been formed by the accumulation of mud 
 "" Dig., 1. XL. t. 1. § 7. 5* Inst, II. tit. I. § 22, '._ 
 
EIGHT OF ACQUISITION. 215 
 
 and drift at the mouth of a river, and which keep 
 sentinel as it were over the approaches to the main- 
 land, are regarded as natural or necessary append- 
 ages of the Coast on which they border, and from 
 which they are formed. " Consider," says Lord Stowell 
 in the case of certain islands at the entrance of the 
 Eiver Mississippi, " what the consequences would be, 
 if lands of this description were not considered as ap- 
 pendant to the mainland, and as comprised within 
 the bounds of territory. If they do not belong to the 
 United States of America, any other Power may 
 occupy them, they might be embanked and fortified. 
 What a thorn would this be in the side of America ! 
 It is physically possible at least, that they might be 
 so occupied by European Nations, and then the com- 
 mand of the river would be no longer in America, but 
 in such settlements. The possibility of such a conse- 
 quence is enough to expose the fallacy of any argu- 
 ments that are addressed to show, that these islands 
 are not to be considered as part of the Territory of 
 America ^^" 
 
 ^132. A title to Territory by reason of contiguity, Arcifinioua 
 (ratione vicinitatis,) in the case of arcifinious States, 
 so called according to Varro^^ because their territory 
 admits of boundaries fit to keep the enemy out, (fines 
 arcendis hostibus idoneos,) in other words, of States 
 whose territory admits of practical limits, such as 
 rivers and mountains, is a reciprocal title. In such 
 cases each State has an equality of right, so that the 
 watershed-line or line of greatest elevation in the case 
 
 " The Anna, 3 Ch. Kobinson's because such lands had no boun- 
 
 Eep. p. 385. daries (fines) fixed and deter- 
 
 '^ Grotius adopts the deriva- mined by any artificial measure, 
 
 tion of Varro. His Commentator De Jure Belli et Pacis, L. II, 
 
 Barbeyrac approves the etymo- c. 3. § 16. 
 logy given by Gronovius, namely. 
 
216 RIGHT OF ACQUISITION. 
 
 of mountains, and the Thalweg or mid-channel, in the 
 case of rivers, which corresponds to a line drawn along 
 the lowest part of the bed of the river or the line of 
 deepest depression, forms the juridical boundary be- 
 tween two such States. The practice of Nations has 
 conformed to this principle in regard to territory which 
 is not arcifinious, in cases where there is intermediate 
 vacant land contiguous to the settlements of two 
 nations. Each Nation has an equal title to extend 
 its settlement over the intermediate vacant land, and 
 thus it happens that the middle distance satisfies the 
 juridical title, whilst it is the nearest approximation 
 to a natural boundary, and the most convenient to 
 determine. Thus the United States of America in 
 their discussions with Spain respecting the Western 
 boundary of Louisiana, contended that " whenever one 
 European Nation makes a discovery, and takes pos- 
 session of any portion of that Continent, (America,) 
 and another afterwards does the same at some dis- 
 tance from it, when the boundary between them is 
 not determined by the principle above mentioned, 
 (namely, that when a Nation takes possession of an 
 extent of sea-coast, it has a right of possession over 
 the interior country coextensive with the waters of the 
 rivers emptying within that coast,) the middle distance 
 becomes such of course ^^." 
 
 So, in the case of a river, the opposite banks of 
 which are possessed by different Nations, the Thalweg 
 or mid-channel is the Normal water-boundary be- 
 tween them. Circumstances however may create ex- 
 ceptions, as, for instance, when the control of a district 
 not actually reduced into the possession of a Nation, 
 is necessary for its security, and is not essential to 
 the security of the conterminous State . " No Nation,' ' 
 
 " British and Foreign State Papers, 1817-18, p. 328. 
 
EIGHT OF ACQUISITION. 217 
 
 Writes Vattel, " can lawfully appropriate to herself a 
 too disproportionate extent of country, and reduce 
 other Nations to want subsistence and a place of abode. 
 A German Chief in the time of Nero said to the 
 Eomans, ' As Heaven belongs to the Gods, so the 
 Earth is given to the human race, and desert countries 
 are common to alP',' giving those proud conquerors to 
 understand that they had no right to reserve and 
 appropriate to themselves a country which they left 
 desert. The Romans had laid waste a chain of coun- 
 try along the Rhine, to cover their provinces from the 
 incursions of the Barbarians. The remonstrance of 
 the German Chief would have had a good foundation, 
 had the Romans pretended to keep without reason a 
 vast country which was of no use to them ; but those 
 lands which they would not suffer to be inhabited, 
 serving as a rampart against foreign Nations, were 
 of considerable use to the Empire ^^" 
 
 § 133. "There is anothercelebrated question," writes Discovery 
 Vattel, "to which the discovery of the New World worid.^'"" 
 has given rise. It is asked whether a Nation may 
 lawfully take possession of some part of a vast coun- 
 try in which there are none but erratic Nations, whose 
 scanty population is incapable of occupying the whole. 
 We have already observed in establishing the obliga- 
 tion to cultivate the Earth, that those Nations cannot 
 exclusively appropriate to themselves more land than 
 they have occasion for, or more than they are able 
 to settle and cultivate. Their unsettled habitation 
 in those immense regions cannot be accounted a true 
 and legal possession, and the people of Europe too 
 closely pent up at home, finding land of which the 
 savages stood in no particular need, and of which they 
 
 '' Sicut cselum Diis, ita terras vacuse, eas publicas esse. 
 generi mortalium datas ; quseque '' Droit des Gens, L. II. § 86. 
 
218 EIGHT OF ACQUISITION, 
 
 made no actual or constant use, were lawfully entitled 
 to take possession of it, and settle it with colonies. 
 The Earth, as we have already observed, belongs to 
 mankind in general, and was designed to furnish them 
 with subsistence. If each Nation had from the begin- 
 ning resolved to appropriate to itself a vast country, 
 that the people might live only by hunting, fishing, 
 and wild fruits, our Globe would not be sufficient to 
 maintain a tenth part of its present inhabitants. We 
 do not therefore deviate from the views of Nature in 
 confining the Indians within narrow limits *"." Vattel 
 has elsewhere observed, " Those who still pursue this 
 idle mode of life, (namely, who to avoid labour choose 
 to live by hunting and by their flocks,) usurp more 
 extensive territory than with a reasonable share of 
 labour they would have occasion for, and have there- 
 fore no reason to complain if other Nations, more in- 
 dustrious and more closely confined, come and take 
 possession of part of those lands. Thus, though the 
 conquest of the civilised empires of Peru and Mexico 
 was a notorious usurpation, the establishment of 
 many Colonies on the Continent of North America, 
 might, on their confining themselves within just 
 bounds, be extremely lawful. The people of those 
 extensive tracts rather ranged through than inhabited 
 them "." 
 Settle- § 134. "OnthediscoveryofthisimmenseContinent," 
 
 th™New to quote the words of Chief Justice Marshall *^, " the 
 World. great Nations of Europe were eager to appropriate to 
 themselves so much of it as they could respectively 
 acquire. Its vast extent offered an ample field to the 
 ambition and enterprise of all ; and the character 
 and religion of its inhabitants afforded an apology for 
 
 " Droit des Gens, L. I. § 209. *'' Johnson v. Mcintosh. 8 
 *' Ibid. § 81. Wheatou, p. 573. 
 
RIGHT OF ACQUISITION. 219 
 
 considering them as a people over whom the superior 
 Genius of Europe might claim an ascendency. The 
 Potentates of the Old World found no difficulty in 
 convincing themselves that they made ample com- 
 pensation to the inhabitants of the New World, by 
 bestowing on them Civilisation and Christianity in 
 exchange for Independence. But as they were aJl in 
 pursuit of nearly the same object, it was necessary, in 
 order to avoid conflicting settlements and consequent 
 war with each other, to establish a principle, which 
 all should acknowledge as the law by which the 
 Right of Acquisition, which they all asserted, should 
 be regulated as between themselves. This principle 
 was, that Discovery gave title to the Government, by 
 whose subjects or by whose authority it was made, 
 against all other European Governments, which title 
 might be consummated by possession. The exclusion 
 of aU other Europeans necessarily gave to the Nation, 
 making the discovery, the sole right of acquiring the 
 soil from the Natives and establishing settlements 
 upon it. It was a right with which no Europeans 
 could interfere. It was a right which all asserted for 
 themselves, and to the assertion of which by others 
 all assented. Those relations, which were to exist 
 between the Discoverer and the Natives, were to be 
 regulated by themselves. The Eight thus acquired 
 being exclusive, no other Power could interfere be- 
 tween them." 
 
 "In the establishment of these relations, the Rights 
 of the original Inhabitants were in no instance en- 
 tirely disregarded, but were necessarily, to a consider- 
 able extent, impaired. They were admitted to be the 
 rightful occupants of the soil, with a legal as weU as 
 a just claim to retain possession of it, and to use it 
 according to their own discretion ; but their Rights to 
 
220 EIGHT OF ACQUISITION. 
 
 complete Sovereignty, as Independent Nations, were 
 necessarily diminished, and their power to dispose of 
 the soil at their own will to whomsoever they pleased, 
 was denied by the original fundamental principle, that 
 discovery gave exclusive title to those who made it. 
 While the different nations of Europe respected the 
 Bight of the Natives, as occupants, they asserted the 
 ultimate dominion to be in themselves ; and obtained 
 and exercised, as a consequence of this ultimate do- 
 minion, a power to grant the soil, while yet in the 
 possession of the Natives, These grants have been 
 understood by all to convey a title to the grantees, 
 subject only to the Indian Right of Occupancy." 
 Possessory § 1 3S- The United States have consequently ad- 
 Native* hered to the customary rule amongst European Na- 
 Indians, ^-^^g ^-^j^ regard to Territorial Title. " The title of 
 the European Nations," says Chancellor Kent *^, "and 
 which passed to the United States, to this immense 
 Territorial Empire was founded on Discovery and 
 Conquest ; and by the European customary Law of 
 Nations, prior discovery gave this title to the soil, 
 subject to the Possessory Right of the Natives, and 
 which occupancy was aU the Eight which European 
 conquerors and discoverers, and which the United 
 States, as succeeding to their title, would admit to 
 reside in the native Indians. The principle is, that 
 the Indians are to be considered merely as occupants, 
 to be protected while in peace in the possession of 
 their lands ; but to be incapable of transferring the 
 absolute title to any other than the Sovereign of the 
 country, who has an exclusive right to extinguish 
 the Indian title of occupancy either by purchase or 
 by conquest." 
 
 § 136. The question whether agriculturists and 
 " Commentaries on American Law, B. I. p. 258. 
 
EIGHT OP ACQUISITION. 221 
 
 manufacturers have a right on abstract principles Agncui- 
 to expel shepherds from their pasture-grounds, orreutimto 
 hunters from the territory over which they range p***™®- 
 in pursuit of game, or to contract the limits within 
 which they shall exercise their avocations, has thus 
 been discussed by Vattel ** : " Families which wander 
 in a country, as pastoral people, and which range 
 through it as their wants require, possess it in com- 
 mon. It belongs to them, to the exclusion of all 
 other Nations, and we cannot without injustice de- 
 prive them of the tracts of country of which they 
 make use. But let us here recollect what we have 
 said more than once*^. The Savages of America 
 had no right to appropriate all that vast Continent 
 to themselves, and since they were unable to inhabit 
 the whole of those regions, other Nations might, 
 without injustice, settle in some parts of them, pro- 
 vided they left the Natives a sufficiency of land. If 
 the pastoral Arabs would carefully cultivate the soil, 
 a less space might be sufficient for them. Never- 
 theless no other Nation has a right to narrow their 
 boundaries, unless it be binder an absolute want of 
 land. For in fact they possess their country ; they 
 make use of it after this manner ; they reap from it 
 an advantage suitable to their mode of life, respecting 
 which they have no laws to receive from any one. 
 In a case of pressing necessity, I think, people might 
 without injustice settle in a part of that country, on 
 teaching the Arabs the means of rendering it, by the 
 cultivation of the Earth, sufficient for their own wants 
 and those of the new inhabitants." 
 
 § 137. This question has been treated with great The indiaa 
 lucidity and moderation in a judgment of Chief Jus- 
 
 " L. II. § 97. *= L. I. § 81. and § 209. L. II. § 86, 
 
222 RIGHT OF ACQUISITION. 
 
 tice Marshall** ; "Although we do not mean to engage 
 in the defence of those principles which Europeans 
 have applied to Indian Title, they may, we think, 
 find some excuse, if not justification, in the character 
 and habits of the people whose rights have been 
 wrested from them. 
 
 " The Title by Conquest is acquired and main- 
 tained by force. The conqueror prescribes its limits. 
 Humanity, however, acting on public opinion, has 
 established as a general rule, that the conquered shall 
 not be wantonly oppressed, and that their condition 
 shall remain as eligible as is compatible with the 
 objects of the conquest. Most usually, they are in- 
 corporated with the victorious Nation, and become 
 siibjects or citizens of the government with which 
 they are connected. The new and old members of 
 the Society mingle with each other ; the distinction 
 between them is gradually lost, and they make one 
 People. Where this incorporation is practicable, 
 humanity demands, and a wise policy requires, that 
 the rights of the conquered to property should re- 
 main 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 connexions^ 
 and united by force to strangers. 
 
 "When the conquest is complete, and the con- 
 quered inhabitants can be blended with the con- 
 querors, or safely governed as a distinct people, 
 public opinion, which not even the conqueror can 
 disregard, imposes these restraints upon him ; and 
 he cannot neglect them without injury to his feme, 
 and hazard to his power. 
 
 "" Johnson and Graham's lessee against Mcintosh. 8 "Wheaton, 
 p. 589- 
 
RIGHT OF ACQUISITION. 223 
 
 " But the tribes of Indians inhabiting this country 
 were fierce savages, whose occupation was war, and 
 whose subsistence was drawn chiefly from the forest- 
 To leave them in possession of their country, was to 
 leave the country a wilderness ; to govern them as a 
 distinct people was impossible, because they were as 
 brave and high-spirited as they were fierce, and were 
 ready to repel by arms every attempt on their Inde- 
 pendence. 
 
 "What was the inevitable consequence of this 
 state of things 1 The Europeans were under the 
 necessity either of abandoning the country, and re- 
 linquishing their pompous claims to it, or of enforcing 
 those claims by the sword ; and by the adoption of 
 principles adapted to the condition of a people with 
 whom it was impossible to mix, and who could not 
 be governed as a distinct Society ; or of remaining 
 in their neighbourhood, and exposing themselves and 
 their families to the perpetual hazard of being mas- 
 sacred. 
 
 " Frequent and bloody wars in which the Whites 
 were not always the aggressors, unavoidably ensued. 
 European policy, numbers, and skiU prevailed. As 
 the white population advanced, that of the Indians 
 necessarily receded. The country in the immediate 
 neighbourhood of a,griculturists became unfit for them. 
 The game fled into thicker and more unbroken forests, 
 and the Indians followed. The soil to which the 
 Crown originally claimed title, being no longer oc- 
 cupied by its ancient inhabitants, was parcelled out 
 according to the will of the Sovereign Power, and 
 taken possession of by persons who claimed imme- 
 diately from the Crown, or mediately, through its 
 grantees or deputies. 
 
 " That Law which regulates, and ought to regulate 
 
224 EIGHT OF ACQUISITION. 
 
 in general, the relations between the conqueror and 
 conquered, was incapable of application to a people 
 under such circumstances. The resort to some new 
 and different rule, better adapted to the actual state 
 of things, was unavoidable. Every rule which can 
 be suggested will be found to be attended with great 
 difficulty. 
 
 " However extravagant the pretension of convert- 
 ing the discovery of an inhabited country into con- 
 quest may appear ; if the principle has been asserted 
 in the first instance, and afterwards sustained ; if a 
 country has been acquired and held under it ; if the 
 property of the great mass of the community origi- 
 nates in it, it becomes the Law of the Land, and can- 
 not be questioned. So too, with respect to the con- 
 comitant principle, that the Indian inhabitants are to 
 be considered merely as occupants, to be protected, 
 indeed, while in peace, in the possession of their lands, 
 but to be deemed incapable of transferring the abso- 
 lute title to others. However this restriction may be 
 opposed to Natural Right, and to the usages of Civil- 
 ised Nations, yet if it be indispensable to that system 
 under which the country has been settled, and be 
 adapted to the actual condition of the two people, it 
 may, perhaps, be supported by Reason, and certainly 
 cannot be rejected by Courts of Justice." 
 Derivative $ 1 38. Derivative Acquisition as distinguished from 
 tion"""" Original Acquisition results from Indirect or Direct 
 Cession. Indirect Cession takes place, when a Na- 
 tion vanquished in war abandons a territory, and the 
 Nation which has overrun it remains in possession 
 of it. Direct Cession, on the other hand, is announced 
 by some Act of a declaratory nature, whereby a Na- 
 tion explicitly devolves its territorial rights to another 
 Nation. The object of Direct Cession is sometimes 
 
RIGHT OF ACQUISITION. 225 
 
 to prevent a war, but most frequently to cement a 
 peace. The repeated occurrence of such Direct Ces- 
 sions in later times has led Jurists to make a distinc- 
 tion accordingly between Acts which place on record 
 such Cessions, and Treaties properly so called. " The 
 compacts," writes Yattel*'', "which have temporary 
 matters for their object are called agreements, con- 
 ventions, and pactions. They are accomplished by 
 one single Act and not by repeated Acts. The com- 
 pacts are perfected in their execution once for all ; 
 treaties receive a successive execution, whose duration 
 equals that of the treaty." Martens** to the same 
 purport writes, " On divise ensuite en g^n^ral les 
 trait^s en conventions transitoires, qui s'accomplis- 
 sent d'un seul coup, et en traites proprement dits, qui 
 obligent k des prestations successives, quoique dans la 
 pratique on ne suive pas toujours cette distinction dans 
 le choix des termes, dont on d^signe les arrangemens 
 faits entre les nations, Les traites de cession, de limites, 
 d'^change, et ceux m^me qui constituent une servitude 
 de droit public, ont la nature des conventions transi- 
 toires ; les traites d'amiti^, de commerce, de navigation, 
 les alliances dgales et in^gales, ont celle des traites 
 proprement dits (fcedera). Les conventions transi- 
 toires sont perpdtuelles par la nature des choses, de 
 sorte qu'une fois accomplies, elles subsistent indlpen- 
 damment des changemens survenus dans la personne 
 du monarque, dans la forme du gouvemement, et m^me 
 dans la Souveraintd de I'dtat contractant, tant qu'eUes 
 n'ont pas etd mutuellement revoqu^es ; une guerre 
 mdme, survenue pour un autre motif, ne les fait pas 
 tomber d' elles m^mes, quoiqu'elle autorise a en sus- 
 pendre I'eflFet et quelquefois h, les revoquer." To the 
 
 " L. II. § 163. 
 
 ** Precis de Droit des Gens, § 58. 
 
 PAET I. Q 
 
Cession. 
 
 226 BIGHT OF ACQUISITION. 
 
 same effect, Mr. Wheaton^^ says, "General Compacts 
 between Nations may be divided into what are called 
 transitory conventions and treaties properly so called. 
 The first are perpetual in their nature, so that, being 
 once carried into effect, they subsist independent of 
 any change in the Sovereignty and form of Govern- 
 ment of the Contracting Parties, and although their 
 operation may in some cases be suspended during 
 war, they revive on the return of peace without any 
 express stipulation. Such are treaties of cession, 
 houndary, or exchange of territory, or those which 
 create a permanent servitude in favour of one Nation 
 within the territory of another." 
 Title by J 1 39, In the case of Indirect Cession, which takes 
 place by abandonment to an invading enemy, a con- 
 firmation of it is for the most part supplied by a sub- 
 sequent treaty of peace concluded on the basis of " uti 
 possidetis," whereby it is agreed that either Nation 
 shall remain in possession of the territory which it 
 has acquired during the war. But such Indirect 
 Cession, although it remains incomplete during the 
 war, seeing that there may be a change at any mo- 
 ment in the fortune of arms, does not require any 
 such explicit confirmation in order to make it com- 
 plete. If peace be concluded, without any stipulation 
 for the restoration of territory on either side, the Na- 
 tion, which has wrested during the war a town or a 
 province from another Nation, acquires a lawful title 
 to it by the conclusion of a treaty of peace with that 
 Nation. The conclusion of the treaty of peace with- 
 out reference to any restitutions is a tacit consent on 
 the part of the Nation, from which a town or pro- 
 vince has been wrested, that it should permanently 
 remain in the hands of the conqueror ; seeing that 
 f Elements of laternational Law, Part II. c. 4. § 9. 
 
EIGHT OF ACQUISITION. 227 
 
 the worsted nation undertakes by concluding peace 
 not to have recourse to force of arms for the recovery 
 of its former possessions. " The effect of a treaty of 
 peace," writes VatteP", " is to put an end to the war, 
 and to abolish the subject of it. It leaves the Con- 
 tracting Parties no right to commit any acts of 
 hostility, on account either of the subject itself which 
 had given rise to the war, or of anything that was 
 done during its continuance ; wherefore they cannot 
 lawfully take up arms again for the same purpose." 
 Title by Conquest thus resolves itself juridically into 
 Title by Cession, and it is not the superior power of 
 the conqueror which gives right to his conquest, but 
 it is the consent of the conquered, which ultimately 
 sanctions the conqueror's right of possession. 
 
 ■"' Lib. IV. c. 2. § 19. Grotius de Jure B. et P. L. III. c. 9. § 4. 
 and c. 20. § 10. 
 
 Q 2 
 
CHAPTER IX. 
 
 RIGHTS OF POSSESSION. 
 
 The Territory of a Nation — Extension of Territory — Empire a 
 primary Territorial Eight— Empire distinct from Domain — Empire 
 over things which cannot be appropriated — Empire over Territorial 
 Eivers — Modification of Right of Empire by Compact — Empire 
 over Frontier Rivers — Treaty Stipulations as to use of Frontier 
 Eivers— Conventional Law of Europe as to Great Arterial Rivers — 
 Treaties of Vienna, of Paris, and of Berlin — Treaty of London of 
 1883 — The Thalweg or Midchannel the boundary of Conterminous 
 States — Right of Alluvion — Prescriptive Rights over Rivers — The 
 Stade or Brunshausen Toll. 
 
 Theterri- ^ 140. Having Considered in the previous chapter 
 Nation.* the Conditions under which a Nation may rightfully 
 acquire possession of a country, we may proceed to 
 consider the rights which a Nation may exercise by 
 virtue of such possession ; in other words, the jura 
 possessionis, as distinguished from the jus possidendi. 
 " When a Nation," writes Vattel^, " takes possession 
 of a country, it is considered as acquiring the empire 
 or sovereignty over it at the same time with the 
 domain^. For since the Nation is Free and Inde- 
 pendent, it cannot be its intention in settling in a 
 country to leave to others the right to command, or 
 any of those rights which constitute Sovereignty. 
 The whole space over which a Nation extends its 
 government becomes the seat of its jurisdiction, and 
 is called its territory." To the same effect De Wolif 
 writes, " Si gens quaedam regionem vacuam occupat, 
 imperium in ea simul occupat I" 
 
 ' Droit des Gens, L. I. § 205. quatenus ab imperio distinguitur. 
 
 ^ In his autem, quge proprie Grotius de Jure B. et P. L. II. 
 
 nuUius sunt, duo sunt oooupa- c. 3, § 4. 
 bilia, imperium et dominium ^ Jus Gentium, § 85. 
 
RIGHTS OF POSSESSION. 229 
 
 § 141. It is immaterial for the purposes of Empire Extension 
 as between Nations, whether a Nation acquires pos- toi^f"^"" 
 session of a country by extending its political body 
 coordinately, or by founding subordinate Political 
 Bodies in the nature of Dependencies. Thus the 
 Union of the North American States has extended 
 itself over the North American Continent, by the 
 admission of Coordinate States into the Union, on a 
 footing of equality with the older and Sister States ; 
 whereas the monarchical States of Europe have ex- 
 tended themselves by Colonisation or by founding 
 new States in Dependence upon themselves as Parent 
 States. The political peculiarities, which distinguish 
 these different forms of National growth, as practised 
 by the Nations of the New World and the Old World 
 respectively, are notable ; but they are matters which 
 concern the Internal organization of States, and have 
 no necessary bearing upon their International rela- 
 tions. The founding of a new State in a condition of 
 Political Dependence upon the Mother Country, con- 
 stitutes as much an extension of a Nation's territory 
 in regard to other Nations, as the incorporation of a 
 new State into a National system of Coordinate 
 States. In both cases the Nation consists of the 
 aggregate body of States, and in the language of 
 arithmeticians, the International Unit may be said to 
 be a multiple political number, of which the compo- 
 nent States are in the one case aU whole numbers, 
 and in the other case are one or more whole numbers -' 
 and several fractions of a whole number. 
 
 Accordingly, when a Nation takes possession of a 
 distant country and settles a colony there, that 
 Country, though separated from the principal esta- 
 blishment or Mother Country, naturally becomes a 
 part of the State equally with its ancient possessions. 
 
230 RIGHTS OP POSSESSION. 
 
 Whenever, therefore, the Political Laws or Treaties 
 make no distinction between them, anything said of a 
 Nation must also apply to its Colonies*. 
 Empire a ^142. The exercise of Empire as between Nations 
 territorial is thus an incident of territorial possession. Empire 
 "^ '■ is in fact a primary territorial right, and the Empire 
 of a Nation is supreme ratione loci over every 
 person and every thing within its territory. " Quic- 
 quid est in territorio, est de territories." Its opera- 
 tion, however, is sometimes suspended by Comity or 
 by Compact, but a claim of extra-territoriality, or of 
 immunity from the Law of the territory (lex loci), 
 is strictly exceptional ; the general presumption of 
 the Jus inter Gentes being adverse to it. There are 
 cases however in which the Comity of Nations has 
 suspended the exercise of certain rights of Empire 
 (Jura imperii)^ so uniformly, that a Custom has 
 grown up whereby the exception has acquired the 
 character of Law ; as for instance in regard to the 
 immunity from the Lex Loci, which is extended to 
 the Public Ministers of Foreign Princes, notwith- 
 standing they should be permanently resident within 
 the territory of another Nation, and thereby normally 
 subject to its Empire. 
 Empire ^ 143. The Right of Empire or Jurisdiction is dis- 
 
 from'domi- tiuguished from the Right of Dominion or Property, 
 mon. When a Nation takes possession of a vacant tract of 
 land, it acquires under ordinary circumstances the 
 Dominion or fullest Right of Property over it con-^ 
 currently with the Right of Empire. " Si gens re- 
 gionem quandam occupavit, omnis terra et quae in ea 
 
 * Vattel, L. I. § 210. ibidem commorentur, nisi sub 
 ^ Heffter, § 67. _ hac conditione ut legibus loci 
 
 * Dominus territorii non per- subsint eorum actiones. "Wolffii 
 mittere intelligitur peregrinis, ut Jus Gentium, § 299. Grotius, L. 
 in territoi'io suo versentur, vel II, c. 11. § 2. 
 
RIGHTS OF POSSESSION. 231 
 
 sint, in dominio ipsius sunt'." This Right of Domi- 
 nion or Property gives to a Nation a right to exclude 
 all other Nations from the enjoyment of the territory 
 of which it has taken possession, and its Eight of 
 Empire warrants a Nation to enforce its own sanc- 
 tions against all who would intrude upon its terri- 
 tory. Although, however, the Right of Empire 
 accompanies the Eight of Property in the case of 
 International Possession, they are not necessarily 
 concurrent rights ^ but the Right of Empire may be 
 enjoyed by a Nation over certain things, in which it 
 is incapable of acquiring an absolute Right of Pro- 
 perty. "Acquiri imperium potest, etsi res singulae 
 natur4 in dominium venire non possunt'," 
 
 § 144. The Roman Jurists regarded certain things Empire 
 as incapable by nature of being appropriated. "Et^Hchcan- 
 quidem natural! Jure communia sunt omnium haec, "°* ^*Pj 
 aer, aqua profluens, et mare, et per hoc litora maris ^''." 
 It is obvious that the air, running water, and the sea, 
 are not susceptible of detention, and consequently 
 cannot be physically reduced into possession, so as tq 
 give rise to that permanent relation, which is impHed 
 in the Juridical notion of property. "Again Nature 
 does not give to man a right of appropriating to him- 
 self things which may be innocently used, and which 
 are inexhaustible and sufficient for all. For since 
 those things, while common to all, are sufficient to 
 supply the wants of each, whoever should, to the 
 exclusion of all other participants, attempt to render 
 himself sole proprietor of them, would unreasonably 
 seek to wrest the bounteous gifts of Nature from the 
 
 ' Wolff, Jus Gentium, § 274. rium et dominium, sunt autem 
 
 * Gunther, L. II. § 17. distincta. Grotius, L. II. c. 3. 
 
 ' Quamquam autem plerum- § 4. 2. 
 que uno actu quseri sclent impe- " Just. Inst. L. II. Tit. I. § i. 
 
232 EIGHTS OF POSSESSION. 
 
 parties excluded". There is accordingly no warrant 
 of Natural Law for an absolute Eight of Property in 
 the running water of rivers (aqua perennis) any more 
 than in the tidal water of the sea. But if the free 
 and common use of a thing of this nature (namely 
 which is of itself inexhaustible) be prejudicial or 
 dangerous to a Nation, the care of its own safety will 
 entitle it so far, and so far only, to control the use of 
 it by others, as to secure that no prejudice or danger 
 result to itself from their use of it. A Nation may 
 accordingly have a Bight of Umpire over things 
 which are nevertheless by nature communis usus, 
 and over which it cannot acquire an absolute Bight 
 of Property ; as, for instance, over portions of the 
 High Seas, or over rivers which form the boundary 
 of its territory. The limits, within which the safety 
 of a Nation warrants such an exercise of Empire, will 
 be considered hereafter. 
 Empire _ § 1 45. A river, of which both banks are in the pos- 
 toriai session of one and the same Nation, may be regarded as 
 '^'"^^'- a stream of water contained in a certain channel, which 
 channel forms part of the territory of the Nation ^^. 
 Such water accordingly, whilst passing through the 
 territory of a Nation, is subject, like all other things 
 within its territory, to the Empire of the Nation, and 
 those who navigate upon it are subject to the Juris- 
 diction of the Nation ratione loci. The exercise of 
 the Eight of Empire over such a river by a Nation, 
 whilst it flows through its territory, does not in any 
 wise militate against the use of it as running water 
 by other Nations, or conflict with the exercise of their 
 corresponding Eight of Empire over it, whilst it flows 
 through their respective territories. We find accord- 
 
 " Vattel, L. I. § 280. 
 
 " Grotius de Jur. B. et P., L. II. c. 14. § 7. 
 
RIGHTS OF POSSESSION. 233 
 
 ingly by the practice of Nations, that a Nation having 
 physical possession of both banks of a river is held to 
 be in juridical possession of the stream of water con- 
 tained vpithin .its banks, and may rightfully exclude 
 at its pleasure every other Nation from the use of the 
 stream, whilst it is passing through its territory, and 
 this rule of Positive Law holds good whatever may 
 be the breadth of a river. Moreover, the fact, that 
 other Nations have freely navigated the stream before 
 both banks of a river have come into possession of 
 one and the same Nation, will not control the opera- 
 tion of this rule. Thus the recognition of the Inde- 
 pendence of the Seven United Provinces by the 
 peace of Munster on the part of Spain ^^ (Jan. 30, 
 1648) carried with it the recognition of their right to 
 close the navigation of the Eiver Scheldt in all its 
 branches within their territory. The same rule was 
 applied to the stream of the Mississippi, below the 
 point where the Southern Boundary of the United 
 States struck that river, by Spain, after the Spanish 
 Nation had acquired possession of both banks, al- 
 though the navigation of the entire river had been 
 previously common to all Nations whilst it formed a 
 common Boundary of the French and British Posses- 
 sions. The United States of North America con- 
 tested at first the claim of Spain, but were fain to 
 conclude the dispute by the Convention of San Lo- 
 renzo el Eeal ^*, under which the free navigation of 
 the entire river was conceded by Spain to citizens of 
 the United States in common with subjects of Spain. 
 At a subsequent period after Louisiana and Florida 
 had been ceded to the United States, the entire river 
 became included within the Territory of the North 
 
 " Schmauss, Corp. Jur. Gent. I. p. 618. 
 " Martens, Recueil, VI. p. 146. 
 
234 manrs of possession. 
 
 American Union ; the United States have thereupon 
 asserted in their turn their Eight of Exclusive Use 
 over the entire stream, and have, in virtue of their 
 Right of Possession, prohibited all other Nations from 
 the navigation of any portion of the river. In a simi- 
 lar manner Great Britain maintains her exclusive right 
 over the stream of the St. Lav^rence during its pas- 
 sage through British Territory. By the Treaty, how- 
 ever, of Washington ^3 (5 June, 1854), Great Britain 
 has agreed, that the citizens and inhabitants of the 
 United States shall have the right of navigating the 
 river St. Lawrence and the canals in Canada used as 
 the means of communication between the great Lakes 
 and the Atlantic Ocean, as fully and freely as the 
 subjects of her Britannic Majesty, it being understood, 
 however, that the British Government retains the right 
 of suspending this privilege on giving due notice there- 
 of to the Government of the United States. 
 
 It may be observed in regard to this Right of Ex- 
 clusive Use, which a Nation being in possession of 
 both banks exercises over the stream of a navigable 
 river, that a Nation so established has a physical 
 power of constantly acting upon the stream, and of 
 excluding at its pleasure the action of any other 
 Nation, which power constitutes Juridical Possession. 
 On the other hand the stream, whilst it is included 
 within the territory of a Nation, cannot be considered 
 to be destined by the Creator to continue open to 
 the common use of mankind any more than the banks 
 and adjacent lands, which have been appropriated 
 and so withdrawn from common use. Nature would 
 
 '' Martens, N. R. G6n. Tom. ration of twelve months after 
 
 XVI. p. 502. This Convention either Nation shall give notice 
 
 is to remain in force for ten to the other of its wish to termi- 
 
 years, and further, until the expi- nate the same. 
 
RIGHTS OF POSSESSION. 235 
 
 thus appear to have interposed neither a material 
 obstacle nor a moral impediment to the exclusive use 
 of a navigable river on the part of a Nation within 
 certain territorial limits. That a river, whilst it flows 
 through the territory of a Nation, should be regarded 
 in any other light than as part of its Possessions, 
 would seem to be inconsistent with the integrity of 
 its territory, whilst it might be incompatible with its 
 security, if the use of the river were not subject to its 
 exclusive control. 
 
 § 146. The exercise on the part of a Nation of its MocUfica- 
 right to exclude other Nations from the use of its compact. 
 territorial waters has often been modified either ex- 
 pressly or implicitly by Compact. Thus Spain, being 
 in possession of both banks of the river Mississippi 
 for some distance upwards from the sea, conceded to 
 the citizens of the United States by the Treaty of San 
 Lorenzo el Real, (anno 1795,) ^^^ ^^e navigation of 
 the river, from its source to its mouth, reserving 
 however the power to extend the same privileges to 
 the subjects of other Powers by a Special Convention. 
 In a similar manner it was agreed between Great 
 Britain and the United States by the Eighth Article 
 of the Treaty of Paris (17th Sept. 1783)1*, "that the 
 navigation of the river Mississippi, from its source to 
 the Ocean, should for ever remain free and open to 
 the subjects of Great Britain and the citizens of the 
 United States." "The subsequent acquisition," writes 
 Wheaton, " of Louisiana and Florida by the United 
 States having included within their territory the 
 whole river from its source to the Gulf of Mexico, 
 and the stipulation in the Treaty of 1 783, securing to 
 British subjects a right to participate in its naviga^ 
 tion, not having been renewed by the Treaty of Gheni. 
 " Martens, Kecueil, III. p. 559. 
 
236 EIGHTS OF POSSESSION. 
 
 in r8i4, the right of navigating the Mississippi is now 
 vested exclusively in the United States ^^." 
 Empire § 1 47. A Nation which has established itself on 
 
 tier Rivers, onc of the banks of a river, prior to the occupation 
 of the opposite bank by any other Nation, may, with 
 a view to its own security, reduce the channel of 
 the river into possession without occupying the other 
 bank^". It may for this purpose either station an 
 armed fleet upon its waters, and thereby occupy the 
 fairway of the river, or it may erect armed forts 
 upon its own bank, and thereby command the fair- 
 way, and in either case it will be able effectively to 
 exclude other Nations from the use of the river. Thus 
 the Romans became sole masters of the Rhine, the 
 Danube, and some other rivers, because the barba- 
 rians who inhabited on the other bank having no 
 boats, the Romans constantly kept what they called 
 " naves lusorise " upon them. So likewise the Republic 
 of Paraguay in South America has established its pos- 
 session of the channel of the river Paraguay which 
 separates the territory of Paraguay from El Gran 
 Chaco ^', and the Republic of Paraguay claims by 
 right of established possession to exclude not merely 
 the Indians of El Gran Chaco who inhabit the op- 
 posite bank, but Nations of European origin, such as 
 the Brazilian Nation which possesses the upper part 
 of the river, and the Argentine Confederation which is 
 in possession of the lower part of the river,from navigat- 
 
 ^^ Wheaton's Elements, Part police stationed by the govern- 
 
 II. c. 4. § 18. ment of Paraguay on board of 
 
 '" "Wolffii Jus Gentium, § io6. guardias and j>iquetes, each occu- 
 
 Vattel, Droit des Gens, L. I. pied by from six to twelve men. 
 
 § 266. La Plata and the Argentine 
 
 " The Indians of the Chaco Confederation and Paraguay, by 
 
 have no canoes. The river Thomas J. Page, U. S. N. 
 
 throughout the extent of Para- London, 1859, p. 108. 
 guay is occupied by a river- 
 
BIGHTS OF POSSESSION. 237 
 
 ing that portion of the river which separates the Ee- 
 public of Paraguay from the territory of the warlike 
 Chaco tribes^*. That a Nation which is settled on one 
 of the banks of a river may nevertheless have a Right 
 of Empire over the entire river, is thus noticed by 
 Grotius. " But though, as I have said in case of any 
 doubt, the jurisdictions on each side reach to the mid- 
 dle of the river that runs between them, yet it may 
 be, and in some places it has actually happened, that 
 the river belongs wholly to one party, either because 
 the other Nation had not yet possession of the 
 other bank till later, when their neighbours were 
 already in possession of the whole river, or else be- 
 cause matters were so stipulated by some treaty ^^." 
 The sanction, which Usucaption or established posses- 
 sion in such a case gives to the claim of a Nation to 
 exclude other Nations from the use of a river, has not 
 been overlooked by Vattel : "A long and undisputed 
 possession establishes the Right of a Nation, other- 
 wise there could be no peace, no stability between 
 them, and notorious facts must be admitted to prove 
 Possession. Thus, when from time immemorial a 
 Nation has without contradiction exercised the So- 
 vereignty upon a river which forms its boundary, 
 nobody can dispute with that Nation the supreme 
 dominion over it ^"J' 
 
 § 148, Grotius has remarked that a Riverain State Treaty sti- 
 may have jurisdiction over the entire channel of aartoWon- 
 river, to the exclusion of other Riverain States, " be- *'®'' ■^"^"• 
 cause matters have been so stipulated by some Treaty." 
 A remarkable instance of this occurs in the Treaty of 
 
 '* The warlike Chaco tribes power of the white man. 
 
 have alone, amid the degrada- " De Jure B. et P., L. II. c. 3. 
 
 tion of the native races upon the § 18. 
 
 American Continent, defied for '» Droit des Gens, L. I. § 
 
 more than three centuries the i66. 
 
238 RIGHTS OF POSSESSION. 
 
 St. Germain en Lay (29 March, 1679), whereby the 
 King of Sweden ceded to the Elector of Brandenburg 
 all his possessions on the right bank of the Oder, 
 retaining his possession of the left bank, and whereby 
 it was further expressly provided, that the river Oder 
 itself should for ever remain under the Sovereignty of 
 the Crown of Sweden, and that the Elector of Branden- 
 burg should not erect any fortifications upon the bank 
 ceded to him^". This exceptional arrangement had 
 its origin most probably in the previous dispositions 
 of the Treaty of Westphalia, by which the Sovereignty 
 of the Crown of Sweden over the river Oder was se- 
 cured for ever, and with which, as forming part of the 
 Public Conventional Law of Europe, the Treaty of 
 St. Germain en Lay was made to accord. 
 
 Treaties, whereby a river has been ceded in its en- 
 tirety (en entier), have been held to transfer not only 
 the possession of the entire channel of the river, but 
 both its banks as inseparable accessories to the river. 
 Thus by the Treaty of Warsaw ( 1 8 Sept. 1773), Poland 
 agreed that the entire river Netze should belong to 
 Prussia, and Prussia contended, and was ultimately 
 successful in her contention, that the cession of the 
 entire river implied the cession of the stream and 
 both its banks. By a like interpretation, Sweden 
 having obtained under the Treaty of Osnabruck (24 
 Oct. 1648) the cession of the entire river Oder from 
 the Emperor of Germany, was held to have acquired 
 thereby possession of a margin of two German miles 
 on the further bank, as an inseparable accessory to 
 
 ^° La rivifere de I'Oder, suivant denbourg d'eriger aucune forte- 
 
 les dispositions des trait^s de resse ou de fortifier aucune place 
 
 Westphalie, deraeurera toujours dans I'entrevue du Pays qui lui 
 
 en souveraint6 au Eoi et k la est c6d6 par le present Trait6. — 
 
 couronne de Su^de, et il ne sera Dumont, Corps Diplomatique, 
 
 pas libra au dit Electeur de Bran- XIII, p. 408. 
 
BIGHTS OF POSSESSION. 239 
 
 the stream. To what extent the use of the land on 
 the bank or banks of a river may be regarded as ac- 
 cessory to the use of the stream, has been a subject 
 of dispute. Prussia, in her dispute with Poland re- 
 specting the effect of her cession of the river Netze 
 en entier, went so far as to claim all such portions of 
 the opposite bank as the waters of the river in a 
 state of inundation overflowed, as well as the marshes 
 caused by such inundations, which claim Gunther ^^ 
 considers to have been in conformity with usage. 
 
 It is obvious however that such a principle, if ge- 
 nerally applied, might lead to great complications. A 
 different and a more definite principle was adopted 
 by Russia in the Treaty of Adrianople concluded with 
 the Ottoman Porte ^^ (24 Sept. 1829). By this Treaty, 
 the Porte in effect ceded the river Danube between 
 the Pruth and the Black Sea in its entirety to Russia, 
 for it was provided by Article III, that the frontier line 
 should follow the course of the Danube from the con- 
 fluence of the Pruth to the St. George's mouth, leaving 
 all the Islands in possession of Russia, and the right 
 bank of the Danube in possession, as heretofore, of 
 the Porte. But it was further agreed that from the 
 point where the St. George's branch separated from 
 the Sulina branch of the Danube, the right bank of 
 the river should remain uninhabited for the distance 
 of two hours ^^ and that no establishment of any kind 
 should be formed upon it within that limit. Such a 
 provision, whilst it effectively secured the navigation 
 of the river from any control on the part of the Porte 
 by virtue of its possession of the southern bank of 
 the Danube, did not tend in any way to impair the 
 
 "' Gunther, t. II. § 14. =" ' Deux heures,' probably 
 
 "" Martens, N. R., t. VIII. about two German miles, ' Zwei 
 p. 144. Stunde.' 
 
240 RIGHTS OF POSSESSION, 
 
 integrity of the Porte's possession of that bank. On the 
 other hand, the rule of interpretation, whereby the ces- 
 sion of a river en entier implies the cession of both its 
 banks, as contended for by Prussia in the case of the 
 river Netze, might operate to deprive a Nation of an 
 important land-frontier, although it has in terms only 
 ceded possession of a water-frontier. 
 Conven- § 1 49. It was formerly the policy of Nations to 
 aTto'the'^ consider rivers, equally with mountains, to be natural 
 ^f Euro^^''^ barriers, and to regard them as turned to the most 
 useful purpose when employed as lines of international 
 demarcation. Thus Grotius, borrowing a term of Law 
 from the Civilians, writes, " But in any doubt of the 
 bounds of a State, those lands that reach to some 
 river are to be reckoned as arcifinious, because no- 
 thing is so proper to distinguish jurisdiction as that 
 which is of such a nature that it is not easily passed 
 over ^*." The exclusive right to the use of a river has 
 been accordingly maintained with great jealousy by 
 Nations, as an important international right, seeing 
 that a river might under such circumstances be con- 
 verted into a fortified frontier. The Conventional Law 
 of Europe has, in modern times, been adapted to 
 larger and less selfish views. Thus the great naviga- 
 ble rivers of the Continent, which in their passage to 
 the Ocean intersect various lands, sometimes passing 
 through Territory in the exclusive possession of one 
 and the same Nation, at another time forming a com- 
 mon boundary between the Territories of two or more 
 Nations, and of which the navigation has been hereto- 
 fore in some parts totally impeded, and in others so 
 burdened with tolls, that they had ceased to be avail- 
 able as highways of general commerce, are now re- 
 garded as the instruments of Nature to cement the 
 
 2* De Jure B. et P., L. 11. c. 3. § 17. 2. 
 
ErGHTS OP POSSESSION. 241 
 
 peaceful relations of mankind, by facilitating their 
 mutual intercourse. It was one of the most benefi- 
 cent arrangements of the Congress of Vienna, that the 
 Powers there assembled agreed, that the navigable 
 rivers which traversed or separated their respective 
 States, should be open for commercial purposes to the 
 navigation of vessels of all Nations, from the places 
 where they became navigable to their mouths^ sub- 
 ject to an uniform system of police and tolls, to be 
 settled by common accord 2^. The Treaty of Paris 
 (30 March, 1856) has applied to the river Danube 
 and its mouths the same principles of Law which had 
 been applied by the Christian Powers assembled at 
 Vienna in 1 8 1 5 to the rivers traversing or separating 
 their respective territories, and has recorded that this 
 arrangement with the Ottoman Porte forms part of 
 the Public Law of Europe. The Right of Empire over 
 any of the great arterial Elvers of Europe has thus 
 ceased to confer any exclusive privilege of navigation 
 upon the Nation which enjoys that Eight. On the 
 contrary, each Eiverain State is under a Conventional 
 obligation to remove aU obstacles to navigation, which 
 may arise in the bed of the river within its Territory, 
 and to maintain the banks and towing-paths and other 
 accessories to the navigation in such a condition as 
 will best facilitate the circulation of the merchant 
 vessels of all Nations. 
 
 ^150. A different system, however, was adopted 
 under the Treaty of Paris for removing the physical 
 obstacles to the Free Navigation of the Danube; An 
 European Commission was appointed under Article 
 XVI of that Treaty, in which Austria, France, Great 
 Britain, Prussia, Eussia, Sardinia, and Turkey were 
 each represented by one delegate. The business of 
 2= Martens, N. K. 11. p. 428. 
 PART I. B 
 
242 RIGHTS OF POSSESSION. 
 
 this Commission was to designate and to cause to be 
 executed the works necessary below Isaktcha, to clear 
 the mouths of the Danube, as well as the neighbouring 
 parts of the Sea, from the sand and other impedi- 
 ments obstructing their navigation, and for the 
 purpose of defraying the expenses of such works 
 and of the establishments ancillary to them, power 
 was given to this Commission to fix dues of a suit- 
 able rate leviable on the flags of all nations under 
 conditions of perfect equality. Further, under Article 
 XVII of the same Treaty, a Kiverain Commission 
 was to be appointed, in which Austria, Bavaria, the 
 Ottoman Porte, and Wurtemberg were each to be 
 represented by one delegate, with whom was to be 
 associated a Commissioner from each of the Danubian 
 Principalities, whose nomination was to be approved 
 by the Porte. This Eiverain Commission was in- 
 tended to be permanent, and its functions were to 
 be : I , To prepare regulations of navigation and 
 of river-police. 2. To remove impediments, of what- 
 ever nature they might be, which might still prevent 
 the application to the Danube of the principles of 
 law sanctioned by the Treaty of Vienna. 3. To 
 order and to cause to be executed the necessary 
 works throughout the whole course of the Eiver. 
 4. After the dissolution of the European Commission 
 to maintain the mouths of the Danube and the 
 neighbouring parts of the Sea in a navigable con- 
 dition. The next following, Article XVIII, placed 
 on record an understanding amongst the Signatory 
 Powers that the European Commission would have 
 finished its task, and the Riverain Commission would 
 have completed the works described in Article XVII 
 within a period of two years, whereupon the Signa- 
 tory Powers having been assembled in Congress, and 
 
BIGHTS OF POSSESSION. 243 
 
 having been informed of that fact, after having 
 placed it on record, were to pronounce the dissolu- 
 tion of the European Commiasion and thenceforth 
 the permanent Kiverain Commission was to enjoy 
 the same powers which the European Commission 
 had up to that time exercised. In pursuance of 
 the provisions of Article XVII already mentioned, 
 Delegates of the Four Eiparian Powers, to wit, 
 Austria, Bavaria, Turkey, and Wurtemberg, with 
 whom were associated a Commissioner from each 
 of the Danubian Principalities, to wit, Moldavia, 
 Servia, and Walachia, assembled at Vienna, with 
 a view to give effect on their part to the provisions 
 of the Treaty of Paris ; and with that object they 
 executed an Act of Navigation on 7 November, 
 18572®, under which, amongst other matters, the 
 navigation of the Danube from the place where 
 the river first becomes navigable down to the 
 Black Sea was declared to be entirely free to the 
 merchant vessels of all Nations, subject however 
 to regulations of river-pohce. This Act, however, 
 remained inoperative until 8th March, 1866, when 
 it underwent a slight modification embodied in 
 two Annexes, and was thereupon approved by the 
 Signatory Powers of the Treaty of Paris ^'^, assembled 
 in Conference. 
 
 ^151. It had been contemplated by the Signa- 
 tory Powers of the Treaty of Paris of 1856, as 
 above mentioned, that the. duties of the European 
 Commission of the Danube would have been com- 
 pleted before the expiration of two years, and that 
 the Riverain Commission would by that time have 
 replaced it. The engineering difficulties, however, 
 
 ^^ British and Foreign State Papers, vol. Ivii. p. 786. 
 " Ibid., vol. Ivii. p. 546. 
 
 R a 
 
244 RIGHTS OF POSSESSION. 
 
 and the expenses of the task imposed upon the 
 European Commission proved to be much greater 
 than had been anticipated, and after the Signatory 
 Powers of the Treaty of Paris had consented in 
 1871 to release Russia from her treaty-eugagements 
 in respect of the neutralisation of the Black Sea, 
 they agreed to prolong the action of the European 
 Commission for twelve years, that is to say, to 
 24 April, 1883, and with regard to the Eiverain 
 Commission, it was not to be assembled without a 
 previous understanding amongst the Riparian States. 
 The subsequent war between Russia and the Porte 
 gave rise to new territorial arrangements on the 
 banks of the Danube. Under Article LII of the 
 Treaty of Berlin of 1878, all the fortresses on the 
 banks of the Danube, from the Iron Gates to the 
 Sea, were to be rased to the ground, and no armed 
 vessel was to navigate the Danube below the Iron 
 Gates with the exception of light vessels for the 
 purposes of river-police and the levying of custom- 
 dues. The waters of the Lower Danube, that 
 is of the River below the Iron Gates, were thus 
 neutralized in the sense in which that word has 
 been applied by the negotiators of the Treaty of 
 Paris to the waters of the Black Sea. Two light- 
 armed vessels, however, which each of the Signatory 
 Powers was entitled under that Treaty to keep 
 at the mouths of the Danube, were to be allowed 
 to ascend the river from time to time as high up as 
 Galatz, The European Commission of the Danube, 
 in which Eoumania was henceforth entitled to be 
 represented (Article LIII), was to continue to ex- 
 ercise its functions as far up as Galatz in complete 
 independence of every territorial authority, and it 
 was authorised in conjunction with delegates from 
 
RIGHTS OF POSSESSION, 245 
 
 the Riparian States to make regulations for the 
 navigation of the River from Galatz up to the 
 Iron Gates, which were to be in harmony with 
 those ahreadv made and applied to the Eiver below 
 Galatz down to the Sea. The European Commission 
 was also authorised to take measures to secure that 
 a lighthouse should be maintained on the Isle of 
 Serpents opposite the Delta of the Kilia branch of the 
 Danube. Further, the execution of the works neces- 
 sary to remove the obstacles to the safe navigation 
 of the Danube above the Iron Gates was entrusted 
 to Austria-Hungary, and the expenses of such re- 
 moval were to be defrayed by a provisional tax to be 
 approved by the European Commission. It need not 
 be matter of surprise that it should have been found 
 to be a work of much time and difficulty to carry into 
 effect the provisions of the Treaty of Paris for opening 
 to all Nations the Navigation of the Danube, when it 
 is borne in mind that the provision of the final Act 
 of the Congress of Vienna of 1820, declaring the navi- 
 gation of the Rhine to be free from the point where 
 it became navigable unto the Sea, did not obtain full 
 effect before 1831, when the Government of the 
 Netherlands agreed, by a Convention concluded at 
 Mayence ^* on the 3 1 st March of that year between 
 all the Riparian Powers, to allow to the vessels of 
 commerce of all nations the liberty of passing through 
 the waters of the Leek and the Waal, with a further 
 provision that in case the passages to the main sea 
 by those two outlets of the Rhine should at any time 
 
 '* The Government of the vention of Mayence agreed to 
 
 Netherlands could not concur replace these words by the 
 
 in the interpretation given by phrase " jusque dans la mer," bis 
 
 the other Signatory Powers of an die See. Martens, N. K. 
 
 the Final Act to the words IX. 252. 
 "jusqu'i la mer." The Con- 
 
246 RlGflTS OF POSSESSION. 
 
 • 
 
 become unnavigable, other water-channels equally 
 convenient should be declared open to the navigation 
 of vessels of commerce. The same Convention regu- 
 lated the charges to be made on vessels and merchan- 
 dize passing through Dutch waters, and also the tolls 
 payable at the different ports of the Kiparian States 
 of the Upper Rhine. It will thus be seen that the 
 free navigation of the great arterial Rivers, separating 
 or traversing the territory of the different States of 
 Europe, has been placed under the ^gis of the Euro- 
 pean Concert of PubHc Law. This principle was 
 affirmed for the .first time at the Congress of Vienna 
 in 1 815. It was re-affirmed at the Congress of Paris 
 in 1856, when the Ottoman Empire was admitted 
 into the European Concert. It has been for a third 
 time affirmed at the Congress of Berlin in 1878, when 
 Servia and Eoumania were admitted into the Family 
 of Nations, and when Roumania was declared to be 
 entitled to succeed to the rights and obligations of 
 the Ottoman Porte in respect of the territory on the 
 southern bank of the Danube ceded to her as an 
 independent State. Further, by the same Treaty 
 the European Commission of the Danube, in which 
 Eoumania was to be represented, was maintained in 
 the exercise of its functions as high up the river as 
 Galatz independent of every territorial authority. 
 By a subsequent arrangement of the Conference 
 of London, embodied in a Treaty of 10 March, 1883, 
 the powers of the European Commission of the 
 Danube have been prolonged for twenty-one years 
 from 24 April, 1883, and its jurisdiction has been 
 extended from Galatz to Ibraila^^ "At the expi- 
 ration of the above-mentioned period the powers 
 
 "' Parliamentary Paper, Danube, No. 2 (1883). Memorial Diplo- 
 matiquCj 19 Mars, 1883. 
 
RIGHTS OF POSSESSION. 247 
 
 of the European Commission are to continue in force 
 by tacit prolongation for succesaive terms of three 
 years, unless one of the High Contracting Parties 
 should notify one year before the expiration of one 
 of those terms of three years the intention of pro- 
 posing modifications in the Constitution or ui the 
 powers of the Commission." This latter provision 
 of the Treaty seems to have been rather inconveni- 
 ently worded, as ,it might appear under one inter- 
 pretation of it to authorise any one of the High 
 Contracting Parties to terminate the tacit prolonga- 
 tion of the European Commission at its pleasure 
 by giving notice of a modification of it, but it may 
 be presumed that the other High Contracting Par- 
 ties will assert their right, if they should reject any 
 such proposed modification in the Constitution or 
 the Powers of the Commission, to prolong its ex- 
 istence toties quoties. 
 
 ^152. The work of adjusting the navigation of the 
 Danube and its Mouths to the principles of law estab- 
 lished by the Congress of Vienna of 1 8 1 5, as applicable 
 to Eivers which separate or traverse different States, 
 is still incomplete, notwithstanding that the Riverain 
 Commission commenced its labours promptly, and 
 agreed as already mentioned to an Act of Navigation 
 on 7 Nov. 1857, which was to come into operation 
 I Jan. 1858. The European Commission, on the 
 other hand, has not been idle. Its work was reviewed 
 in 1865, and was approved by a Public Act of the 
 Signatory Powers of the Treaty of Paris of 1856, 
 signed at Galatz on 2 Nov. 1865. An additional 
 Act, to which Roumania was made a party, has been 
 recently "signed at Galatz on 28th May, 1881, ex- 
 tending the Powers of the European Commission 
 as high up as Galatz, in order to meet the territorial 
 
248 EIGHTS OF POSSESSION. 
 
 changes established by the Treaty of Berlin of 13 
 July, 1878, Still more recently the powers of 
 the European Commission have been extended to 
 IbraUa, whilst the portions of the Kilia branch of 
 the Danube, where both banks belong to one 
 and the same Power, have been withdrawn from 
 its control, the other portions being still made sub- 
 ject to the Regulations in vigour in the Souhna 
 branch, under the superintendence of the Eussian 
 and Eoumanian members of the European Com- 
 mission. The Treaty of London of 1883, to which 
 the Signatory Powers of the Treaty of Berlin are 
 parties, has sanctioned certain Regulations for the 
 navigation and river-police, applicable to that part 
 of the Danube which is situated between the Iron 
 Gates and Ibraila. Further, it has placed the 
 execution of those Regulations in the hands of a 
 "Mixed Commission of the Danube," in which 
 Austria-Hungary, Bulgaria, Roumania, and Servia 
 are to be represented each by one Delegate, and 
 a member of the European Commission, designated 
 for a period of six months, according to the alpha- 
 betical order of the States, is also to take part in the 
 deliberations of the Commission with all the rights 
 enjoyed by the other Delegates. The Powers of this 
 Mixed Commission of the Danube are to be of equal 
 duration with those of the European Commission. 
 It will thus be seen that the navigation of the 
 Danube is placed under three distinct systems of 
 law. The Mouths of the Eiver and the Lower 
 portion of it as high up as Ibraila are under the 
 Control of the European Commission including 
 Eoumania, subject to a modification of its powers 
 in certain portions of the Kilia branch. The Middle 
 Danube, which includes the waters above Ibraila 
 
EIGHTS OF POSSESSION. 249 
 
 as far as the Iron Gates, will be under the Mixed 
 Commission of the Danube, over which the Presi- 
 dency is assigned by the Treaty of London, 1883, 
 to the Delegate of Austriar Hungary, and its Sittings 
 are to be held at Giurgevo twice in each year. The 
 Upper Danube, on the other hand, above the Iron 
 Gates and the Cataracts, will be under the superin- 
 tendence of the Riverain States in accordance with 
 the general Principles of the Public Law of Europe, 
 the freedom of its navigation, however, being assured 
 to the Flags of all Nations. . 
 
 § 153. If the opposite banks of a navigable river The Thai- 
 are in the possession of two Nations, and neither Na- MMchan- 
 tion can prove that itself, or the Nation from which ^f^"^ ^j^^ 
 it may have derived its title, was established on the Boundary 
 one bank prior to the occupation of the other bank minous 
 by the other Nation, each will have a Eight of Em- ^'*'^°" 
 pire and Dominion over the river as far as the mid- 
 channel or Thalweg. " Pour ce qui est des fleuves et 
 lacs frontiferes, dont la rive oppos^e est dgalement 
 occupde, leur milieu, y compris les iles que traverse la 
 ligne du milieu, s^pare ordinairement les territoires. 
 Au lieu de cette ligne on a nouvellement choisi pour 
 frontifere le Thalweg, c'est k dire le chemin variable 
 que prennent les bateliers, quand ils vont avnl, ou 
 plut6t le miKeu de ce chemin ^ '." Grotius and Vattel 
 speak of the middle of the river as the line of de- 
 marcation ^^ between two jurisdictions, but modern 
 publicists and statesmen prefer the more accurate and 
 more equitable boundary of the Midchannel. If 
 there be more than one channel of a river, the deepest 
 channel is the Midchannel for the purposes of territo- 
 rial demarcation ; and the boundary line will be the 
 
 »° Kluber, Droit des Gens, " Grotius, L. II. c. 3. § 18. 
 § 133. Vattel, L. c. 22. § 266. 
 
250 HiaHTS OF POSSESSION. 
 
 line drawn along the surface of the stream corre- 
 sponding to the line of deepest depression of its bed. 
 Thus we find in the Treaty of Argovie, (17 Sept. 
 1808,) concluded between the Grand Duchy of Baden 
 and the Helvetic Canton of Argovie ^^ that the Thal- 
 weg, or water^frontier line, is defined to be "the line 
 drawn along the greatest depth of the stream," and 
 as far as bridges are concerned, " the line across the 
 middle of each bridge." The islands on either side of 
 the Midchannel are regarded as appendages to either 
 bank ^^ ; and if they have once been taken possession 
 of by the Nation to whose bank they are appendant, 
 a change in the Midchannel of the river will not 
 operate to deprive that Nation of its possession, al- 
 though the water-frontier line will follow the changes 
 of the Midchannel — " Dans les fleuves navigables, c'est 
 le courant du fleuve qu'on a commun^ment en vue, en 
 convenant de prendre le milieu pour limite. Cette 
 limite change done, si le courant change : ce qui ce- 
 pendant n'influe pas sur la propri^t^ des autres parties 
 une fois acquise. Mais dans le cas oil un fleuve 
 changerait totalement le lit, le lit dess^ch^ resterait 
 partagi entre les deux nations, comme I'^tait le fleuve. 
 Les simples atterrissemens n'alt^rent pas la Hgne, qui 
 sert de limite 2*." " A river," writes Grotius, " that 
 separates two Empires is not to be considered barely 
 as water, but as water confined within such and such 
 
 ^^ Martens, N. E. T. I. p. 140. the limits of the Convention, with 
 
 '' Such is the general law, but the exception of that in which 
 
 by treaty the midchannel may be the town of Casimir is situated, 
 
 made the water-boundary, yet all were ceded to her Imperial and 
 
 the islands in the river belong Eoyal Majesty, whilst half the 
 
 to one Power. Thus by the Con- bed of the river was declared to 
 
 vention of 9 Feb. 1776, between belong to each Power. Martens, 
 
 the King of Poland and the Eecueil, T. II. p. 127. 
 
 Empress Maria Theresa, all the °* Martens, Precis du Droit 
 
 ilands in the river Vistula, within des Gens, § 39. 
 
RIGHTS OP POSSESSION. 251 
 
 banks and running in such and sucli a channel ; 
 therefore the additipn, subtraction, or such changes 
 of its particles, as allow the whole to subsist in its 
 ancient form, allow the river to be considered as the 
 same. But if the form of the whole be changed at 
 once, it will be quite another thing ; and conse- 
 quently, if a river is dammed up above, and a passage 
 made to convey the water another way, the river 
 ceases to be. So in case a river should force its way 
 through some unusual passage, and entirely forsake 
 its former channel, it is no longer the river that it 
 was before, but a new river. So, too, if a river should 
 have become dried up, the middle of the channel 
 would remain, as before, the boundary of Empire be- 
 tween two Nations, because the intention of each Na- 
 tion must be presumed to take the river for the 
 natural limit of their lands, but if the river should at 
 any time cease to be, then to possess respectively what 
 they had before : the same rule is to be observed if 
 the channel should be changed ^^." 
 
 § 1 54. When a river is the boundary between Eight of 
 two Nations, whether its channel remains common 
 to the inhabitants of either bank, or whether each 
 Nation possesses half of it, the respective rights of 
 the two Nations are not in any wise changed by 
 alluvion, that is by a gradual addition of soil made 
 by the current of the river to the bank on either 
 side ^^ If therefore it happens that by the natural 
 effect of the current, one of the two banks receives an 
 increase of soil, while the river gradually encroaches 
 on the opposite bank, the river still remains as here- 
 tofore the boundary between the two Nations, and 
 notwithstanding the progressive changes in its course, 
 
 == De Jure B. et P., L. II. =' Grotius, L. II. c. 3. § 16. 
 c. 3. §17. Vattel, L. I. § 268, 269. 
 
vers. 
 
 252 BIGHTS OF POSSESSION. 
 
 each retains over it the same rights as heretofore. 
 So that, if for instance its possession be equally di- 
 vided between the owners of the opposite banks, the 
 midchannel, or Thalweg, although its distance from 
 the respective banks may be no longer the same by 
 reason of the alluvial increase of the one bank and the 
 denudation of the other bank, continues nevertheless 
 to form the line of demarcation between the two 
 Nations. 
 Presorip- $155- A rivcr may belong to one Nation and an- 
 o'ver m- ^ other Nation may have an incontestable right to navi- 
 gate it, in which case the former cannot erect upon 
 the river any work, which will entirely interrupt and 
 render it unfit for navigation. The right to navigate 
 such a river may have been acquired by the Nation, 
 which is not in possession of the river, either by pre- 
 scription founded on the long acquiescence of the 
 other Nation, if it ever had the right to exclude 
 other Nations from the navigation, or by a privilege 
 granted by a common paramount Sovereign. It may 
 happen, that conterminous Independent States, sepa- 
 rated by a river, have been subject in former times to 
 a common paramount Lord or Sovereign, such for in- 
 stance as the Princes and Free Cities of Germany for- 
 merly recognised in the Roman Emperor of the Ger- 
 mans, who in virtue of his Supremacy could rightfully 
 grant to them by Charter or otherwise the exercise of 
 dominion and jurisdiction over a river within the 
 Empire. Thus a Bight of Condominium ^^ over the 
 Ehine was granted by the Roman Emperor of the 
 Germans to the Electors of Mayence, Treves, Cologne, 
 and the Elector Palatine, and a Eight of Supreme 
 Dominion over the Maine was similarly granted to 
 the Elector of Mayence. In an analogous manner the 
 =' Guntber, T. II. § 14. 
 
RIGHTS OF POSSESSION. 253 
 
 right of levying tolls, which was an Imperial Eight, 
 was granted to Riverain States of the Empire, and 
 tolls have been accordingly levied by them upon 
 vessels navigating the rivers which bound or intersect 
 their territory ; at the same time that exceptional pri- 
 vileges of freely navigating such rivers were granted 
 by the same Supreme Authority to one or more other 
 States of the Empire, and have continued to be en- 
 joyed by them since they have become Independent 
 Nations. 
 
 ^156. The Stade or Brunshausen Toll, levied byTheStade 
 Hanover on the vessels and goods of Foreign Nations hausen"' 
 ascending the river Elbe from the Sea, was an instance '^°"" 
 of the Right of Empire exercised under qualifications. 
 The origin of this toll is lost in antiquity. The 
 earliest document in which it is mentioned, is a charter 
 of the Emperor Conrad IT, dated December lo, 1038, 
 which grants the then existing toll levied near the 
 place of Stade to the Archbishops of Bremen, which 
 Grant was confirmed by the succeeding Emperor 
 Henry III, on 13 May, 1040. His successor the Em- 
 peror Henry IV, annexed the County of Stade with 
 all the tolls and duties then levied to the Arch- 
 bishopric of Bremen. The right thus conveyed ex- 
 isted in all its generality until the Emperor Frederic 
 I, on the 7th May, 11 89, granted to the citizens of 
 the old Town of Hamburgh, at the instance of Count 
 Adolphus of Schaumburg, the privilege of their ships 
 and goods passing free of the Stade Toll. The ex- 
 emption enjoyed under this privilege was vigorously 
 contested by the Archbishop, as an infringement 
 upon a vested Right and also upon the property of 
 the Church, but it was ultimately established, on the 
 8 Dec. 1268, by the superior might of the Hamburgh 
 Burghers, since which time the right of free navigation 
 
254 RIGHTS OF POSSESSION. 
 
 has been enjoyed by the Burghers of the old Town 
 of Hamburgh down to the present day. By the peace 
 of Osnabruck, (8 Sept. 1648,) Bremen, which had been 
 erected into a Duchy, was transferred to Sweden, and 
 the Stade Toll was levied by the King of Sweden, as 
 Duke of Bremen, down to 1 712, when Denmark wrested 
 from Sweden the Duchies of Bremen and Verden, 
 and ceded them to the Elector of Hanover. At the 
 conclusion of the subsequent peace (9th Nov. 1719) 
 the Elector of Hanover was formally invested with 
 the two Duchies by the Emperor of Germany, in the 
 same way as the King of Sweden had been invested 
 after the peace of Osnabruck. Erom this investiture 
 Hanover claimed her right to levy the Stade or Bruns- 
 hausen Toll. At the time when the Stade Toll 
 was established, the Elbe was a river of the German 
 Empire, and the levying of river tolls was amongst 
 the rights, which by the law and customs of the Em- 
 pire appertained to the Imperial Crown. It was 
 competent therefore to the Emperor Charles the 
 Great to establish passage-duties upon vessels entering 
 the mouth of the river Elbe, and it is probable that 
 the then frequented harbour of Stade was one of the 
 places selected by that Emperor. It was equally com-- 
 petent for a subsequent Emperor to grant the Duchy 
 of Bremen with all the tolls therein levied to a Priac^ 
 of the Empire, and to sanction the ultimate transfer 
 of the Bremen Fief with all its rights to the Eleciot 
 of Hanover. Upon the devolution of the Supremacy 
 of the Emperor and the Empire to the immediate 
 vassals of the Imperial Crown, the Elector of Hanover 
 and the Free City of Hamburgh became Independent 
 Sovereign Powers, and they continued to enjoy hence- 
 forth, in such character, the respective rights and 
 privileges in regard to the navigation of the river 
 
RIGHTS OF POSSESSION. 255 
 
 Elbe, which they had heretofore enjoyed as imme- 
 diate vassals of the Imperial Crown. The King of 
 Hanover continued to levy toll upon all vessels enter- 
 ing the river Elbe from the sea, with the exception 
 of vessels belonging to Burghers of the old Town of 
 Hamburgh. The right of Hanover and the privilege 
 of the old Town of Hamburgh had equally a lawful 
 origin, and both had been exercised for so many cen- 
 turies, that they had acquired the sanction of long 
 established custom as against each other and against 
 other Nations, 
 
 After the Powers assembled at the Congress of 
 Vienna had agreed, that the tolls to be taken on the 
 great navigable rivers of Europe should be settled by 
 a common accord amongst the Riverain Powers, the 
 Commissioners of the Elbe-bordering States assem- 
 bled at Dresden, (3 June, 1819,) for the purpose of 
 settling a scheme of Elbe-tolls. On this occasion 
 Hanover appears to have contended, that the Stade 
 Toll was a Sea-toll, as distinguished from a Biver- 
 toll ; and consequently was not within the scope of 
 the Treaty-Engagements of Vienna. A subsequent 
 and more careful investigation induced Hanover to 
 admit that the Stade Toll was a Eiver-ToU, and it 
 was accordingly regulated by the Elbe-bordering 
 States under the Convention of Dresden ^^ (30 Au- 
 gust, 1843.) This toll accordingly, which was origi- 
 nally a territorial toll levied under the authority of 
 the Roman Emperor of the Germans upon all vessels 
 coming from the Sea into a river of the Germanic 
 Empire, having been regulated by a Convention in 
 pursuance of the Treaty-Engagements of Vienna, had 
 thus been sanctioned by the Conventional Law of 
 Europe. The Stade Toll had beyond all doubt a 
 s' Martens, N, R. G6ii6ral, V. p, 530. 
 
256 RIGHTS OF POSSESSION. 
 
 rightful origin, and its rightful origin secured its 
 recognition ; unlike the Gliickstadt toll, which the 
 King of Denmark, as Duke of Holstein, attempted 
 to levy in the Seventeenth Century upon all vessels 
 passing by the Port of Gliickstadt, but which the 
 English and Dutch nations ^^, and above all the citi- 
 zens of Hamburgh, successfully resisted. The Stade 
 ToU has now become a matter of history. It was 
 suppressed in respect of European vessels in pursuance 
 of a general European Treaty signed at Hanover on 
 2 2 June, 1 86 1, and in respect of vessels under the flag 
 of the United States of America under a Convention 
 between the United States and Hanover of 6 November, 
 1 86 1. In both cases compensation was made to 
 Hanover for the sacrifices imposed upon her. 
 
 '' Treaty of 1645. Schmauss, Molesworth's Account of Den- 
 Corp. Jur. Gent. I. p. 356. Lord mark, anno 1692, 
 
CHAPTER X. 
 
 EIGHT OF JUBISDICTION. 
 
 Incidents of the Eight of Empire — National Sovereignty pro- 
 perly Territorial — The Jus Civile of a State operative only within 
 its Territory — The Comity of Nations sometimes gives effect to 
 Foreign Laws — Personal, Eeal, and Mixed Statutes — Growth of 
 Private International Jurisprudence — Exceptional position of Euro- 
 peans whilst resident amongst Asiatic Nations — Personal Actions 
 of Foreigners — Extra-territoriality of certain Foreign Persons and 
 Things — Merchant Vessels subject to the Territorial Law — Eight of 
 Emigration — Domicil the criterion of National Character — Juris- 
 diction and Eemedies — Comity of Nations in regard to Personal 
 Property — Domicil of Origin and Domicil of Choice. 
 
 ^157. The Empire of a Nation within its own ter- incidents 
 ritory is of Natural Right exclusive and absolute : it Right i.f 
 is susceptible of no hmitation not imposed by the ^™P"^®- 
 Nation itself, for any restriction imposed upon its 
 exercise, deriving force from an external authority, 
 would imply an impairment of a Nation's Inde- 
 pendence to the extent of that restriction, and an 
 investment of Sovereignty to the same extent in 
 that Power which had imposed such restriction. All 
 exceptions, therefore, to the free exercise of the Right 
 of Empire by a Nation within its own territory must 
 be derived from the consent of the Nation itself 
 
 The Right of Civil and Criminal Legislation in 
 re&pect of all property and persons within the terri- 
 tory of a Nation is an incident of the Right of 
 Empire. It follows, therefore, that the Laws of 
 every Nation bind of Natural Eight aU property 
 situate within its territory, as well as all persons re- 
 sident therein, whether they be natives or strangers, 
 and that they control and regulate all the acts done 
 or contracts entered into within its limits. 
 
 PAET 1. s 
 
258 EIGHT OF JUBISDICJTION. 
 
 Every Nation has accordingly an absolute right to. 
 order the conditions, under which Real or Personal 
 Property situate within its territory may be held or 
 transferred, as well as to determine the capacity of 
 all persons resident therein to enter into Contracts, 
 as well as the formalities requisite to give legal effect 
 to such Contracts, and the rights and obligations 
 resulting thereupon ; and finally to prescribe the con- 
 ditions under which actions at law may be brought 
 before its tribunals, and the remedies which may be 
 administered in its Courts ^ 
 National § 1 58. A Nation cannot by its Laws directly bind 
 reignty property which is beyond the limits of its terri- 
 TOTHoriai ^°^' ^^^ directlv control persons who are not resi- 
 dent therein. This is a necessary consequence of the 
 proposition advanced in the preceding section ; for it 
 would be inconsistent with the absolute character of 
 Territorial Empire, if the Laws of a Nation could 
 bind persons or property within the territory of an- 
 other Nation, and so control the operation of the 
 Laws of the latter Nation within its own territory. 
 Eodenburg has accordingly observed, that no Sove- 
 reign Power can of Eight set Law beyond the limits 
 of its territory. " Constat igitur extra territorium 
 legem dicere nemini licere ; idque si fecerit quis, im- 
 pune ei non pareri, quippe ubi cesset Statutorum fun- 
 damentum, cessant robur et jurisdictio ^." Boullenois 
 lays down a similar rule : " Of strict Eight, all the 
 Laws set by a Sovereign have only force and author- 
 ity throughout his dominions ^." Vattel concurs in 
 this view, when he says, " The Empire united to the 
 
 ^ Boullenois, Trait6 des Sta- ^ Eodenburg, De Statutis, Tit. 
 
 tuts, T. I. p. 2, 3, 4. Story, Con- I. c. 3. § i. 
 
 flict of Laws, § 18, 19. Foelix, ' Boullenois, Trait6 des Sta- 
 
 Droit International Priv6, § 9. tuts, Principes G6n6raux, YI. 
 
RIGHT OF JURISDICTION. 259 
 
 domain establishes the jurisdiction of the Nation 
 within its territory. It is its province, or that of its 
 Sovereign, to exercise Justice in all the places under 
 its Empire ; to take cognisance of the crimes that 
 are committed, and the differences that arise in the 
 country *." No law accordingly is operative, jprojprio 
 vigore, beyond the limits of the territory of the State 
 which has set it K " There is no doubt," writes Chan- 
 cellor Kent «, " of the truth of the general proposition, 
 that the Laws of a country have no binding force 
 beyond its own territorial limits, and their authority 
 is admitted in other States, not em proprio vigors, 
 but eaj comitate, or in the language of Huber, " qua- 
 tenus sine praejudicio indulgentium fieri potest," &c. 
 Another eminent American authority, Chief Justice 
 Parker, has recognised a similar doctrine in an elabo- 
 rate Judgment, in the course of which he observes, 
 that "the laws of a State cannot by any inherent 
 authority be entitled to respect extra-territorially, or 
 beyond the jurisdiction of the States which enact 
 them ; this is the necessary result of the Inde- 
 pendence of distinct Sovereignties I" 
 
 § 159. A difference of Mnd exists between the Jus civile 
 Authority which a Nation claims to bind its own operative 
 natural bom and naturalised subjects by its laws, in "ta'teTri'"^'" 
 whatever country they may be, and the Right which tory. 
 a Nation possesses to control by its Laws all persons 
 and property within its territory. The former au- 
 thority is founded upon an implied or express Com- 
 pact amongst the members of the Political Society 
 which constitutes the Nation, and which Compact 
 
 * Droit des Gens, B. 11. § 84. ' Blanchard v. Eussell, 13 
 
 " Martens, Pr6cis du Droit des Massachusetts Repts. p. 4. cf. 
 
 Gens, § 86. Bank of Augusta v. Earle, 13 
 
 ° Kent's Commentaries, Tom. Peter's Kepts. p. 584, 
 
 n. § 457. 
 
 s a 
 
260 RIGHT OF JURISDICTION. 
 
 has given rise to personal obligations on the part of 
 the subject members towards the Sovereign Power ; 
 by virtue of which the Sovereign Power of a Nation 
 may enforce its Laws against the subject members, 
 as soon as they have returned within the limits over 
 which its Eight of Empire extends. 
 
 The latter Eight is incidental to the Eight of 
 Empire ; which is a Paramount Eight within the 
 limits of a Nation's territory. When, therefore, it is 
 said that the Sovereign Power of a Nation may bind 
 by its Laws its natural born or naturalised members 
 everywhere, it must be understood that this attribute 
 of personal Sovereignty is subordinate to the attri- 
 butes of territorial Sovereignty ; and that a Nation 
 cannot enforce its Laws against its subjects whilst 
 they are within the territory of another Nation. The 
 exercise of personal Sovereignty on the part of a 
 Nation over its own natural born and naturalised 
 subjects, in respect of matters happening within the 
 territory of another Nation, is not in point of Natural 
 Eight altogether clear upon any acknowledged prin- 
 ciple ; nor is the authority of a Nation to bind them, 
 whilst they are within the territory of another Nation, 
 by personal Laws recognised by other Nations. Re- 
 sidence is, in fact, the foundation of Jurisdiction 
 under the Law of Nations. To be resident within 
 the territory of a Nation is to be subject to its Juris- 
 diction ; but Nations, from considerations of mutual 
 Comity, do not apply the same Laws in all matters 
 to persons who are only temporarily resident, as 
 to persons who are permanently resident within its 
 territory. The discretion, however, of a Nation as 
 to the particular Law which shall be administered 
 in its Courts is absolute, and it may decline to allow 
 its Courts to give any effect to Foreign Law : on 
 
RIGHT OF JURISDICTION. 261 
 
 the other hand, if it allows its Courts to administer 
 Foreign JJaw in disputes between foreigners, or other- 
 wise, it adopts tacitly the Foreign Law as its own 
 for the settlement of such disputes. 
 
 § 1 60. The Laws of a Nation can only have effect The Co- 
 or obligation within the territory of another Nation Nations 
 by virtue of the express or tacit consent of the latter, sometimes 
 
 *' ^ -T gives enecfc 
 
 A Nation may prohibit the operation of aU Foreign to Foreign 
 Laws, and refuse to recognise any rights growing out 
 of them within its territory. On the other hand, it 
 may prohibit some Foreign Laws, and give operation 
 to others, either absolutely, or suh modo. If the 
 Statute or Common Law of the Nation speaks clearly 
 in such matters, it must be obeyed by all within the 
 local limits of its authority. When both are silent, 
 European Courts of Justice under the Comity of 
 Nations presume the tacit adoption of the Laws of 
 a Foreign Nation by their own Government, in mat- 
 ters which regard Foreign Interests, unless they are 
 repugnant to its own policy, or prejudicial to its own 
 interests. No Nation can be justly required to give 
 up its own fundamental policy and institutions in 
 favour of those of another Nation ; much less can 
 any Nation be required to sacrifice its own interests 
 in favour of another Nation, or to enforce doctrines 
 which in a moral or political view are incompatible 
 with its own safety or happiness, or with its con- 
 scientious regard to justice and duty. It is therefore 
 essentially a question of Comity between Nations, to 
 what extent effect shall be given to Foreign Law, 
 and all questions of Comity depend upon a variety of 
 circumstances, which cannot be reduced to any cer- 
 tain rule. Huberus* has propounded upon this ques- 
 tion three maxims, which Mr. Justice Story, Mr. 
 ' De Conflictu Legum, L. I. Tit. III. § 2. 
 
262 EIGHT OF JUBISDICTION. 
 
 Wheaton, and M. Fcelix equally approve, as being 
 conformable to the practice of Nations. The first is, 
 that the Laws of every Empire have force only within 
 the limits of its own Government, and bind all who 
 are subjects thereof; but not beyond those limits. 
 The second is, that all persons who are found within 
 the limits of a Government, whether their residence 
 is permanent or temporary, are to be deemed subjects 
 thereof. The third is, that the rulers of every Em- 
 pire from Comity admit that the Laws of every 
 people in force within its own territorial limits 
 ought to have the same force and effect everywhere, 
 BO far as they do not prejudice the power or rights of 
 other Governments, or of their citizens. "From 
 this," Huberus adds, "it appears that this matter is 
 to be decided not simply by the Civil Law of a 
 Nation, but by the reciprocal convenience and the 
 tacit consent of different Nations ; for since the laws 
 of one people cannot have any direct operation 
 amongst another people, so nothing could be more 
 prejudicial to the commerce and general intercourse 
 of Nations, than that what is legally valid in one 
 place should become without effect by reason of the 
 diversity of the Law in another placed Certain 
 Jurists have contended that the term Comity is not 
 sufficiently expressive of the obligation of Nations 
 to give effect to Foreign Laws, when they are not 
 prejudicial to their own rights and interests, and 
 have suggested that the doctrine rests on a deeper 
 foundation ; and that it is not so much a matter of 
 Comity or Courtesy as a matter of paramount Moral 
 Duty. " Now if it be assumed," writes Mr. Justice 
 Storj^ " that such a Moral Duty exists, it is clearly 
 
 " Bynkershoek, De Foro Legatorum, c. 2. Martens, Precis, 
 § 84. Kliiber, Droit dee Gens, § 54. 
 
RIGHT OF JURISDICTION. 263 
 
 one of imperfect obligation, like that of beneficence, 
 humanity, or charity. Every Nation must be the 
 final judge for itself, not only of the nature and 
 extent of the duty, but of the occasions on which 
 its exercise may be justly demanded ; and certainly, 
 there can be no pretence to say that any Foreign 
 Nation has a right to require the full recognition 
 and execution of its own Laws in other territories, if 
 those Laws are deemed oppressive or injurious to the 
 rights or interests of the inhabitants of the latter, or 
 if their Moral character is questionable, or their pro- 
 visions are impolitic or unjust". Even in other cases 
 it is difiicult to perceive a clear foundation in Morals, 
 or in Natural Law, for declaring that any Nation has 
 a right (all others being equal in Sovereignty) to 
 insist that its own Positive Laws should be of supe- 
 rior obligation in a Foreign Kealm to the Domestic 
 Laws of the latter, which may be of an equally posi- 
 tive character. What intrinsic right has one Nation 
 to declare that no Contract shall be binding, which is 
 made by any of its subjects in a Foreign Country, 
 unless they are twenty-five years of age ; any more 
 than another Nation, where the Contract is made, has 
 a right to declare, that such Contract should be bind- 
 ing, if made by any person of twenty-one years of 
 age. One would suppose that if there be anything 
 within the scope of National Sovereignty, it is the 
 right of a Nation to fix what shall be the rule to 
 govern Contracts made within its own territory"." 
 
 § i6i. A distinction has accordingly been made by Personal, 
 the Civilians between Personal Statutes, Eeal Sta- Mixe^*" 
 tutes, and Mimed Statutes. Personal Statutes, ac- ^**'"'®''- 
 
 " Story's Conflict of Laws, Martin's Louisiana Bepts. 569 — 
 
 § 33- 59^' 
 
 '^ Saul V. his Creditors, 17 
 
264 RIGHT OF JURISDICTION. 
 
 cording to this classification, are those portions of the 
 Civil Law of a Nation which have persons principally 
 for their object, and treat only of property as an 
 accessory ; such are those which regard birth, legi- 
 timacy, freedom, the right of instituting suits, majo- 
 rity as to age, incapacity to contract or to make a 
 will or to sue in proper person, &c. Beal Statutes 
 are those which have property principally for their 
 object, and which do not speak of persons except in 
 subordination to property; such as those Laws which 
 concern the disposition which may be made of pro- 
 perty either- by deed or by will. Mixed Statutes 
 are those which concern at once persons and pro- 
 perty. This threefold classification has been con- 
 sidered by Merlin^^ to be unnecessary, as every Sta- 
 tute ought to receive its denomination according to 
 its principal object ; and according as that object is 
 real or personal, so ought the quality of the Statute 
 to be determined. But the distribution of Statutes 
 into three classes is usually adopted, as stated by 
 Rodenburg"; because there is a corresponding dif- 
 ference of fact in the scope of Statutes, for a Statute 
 either disposes respecting persons in the abstract, 
 without any regard to things ; as, for instance, at 
 what age a person shall be a free agent (Sui juris), 
 and cease to be subject to the parental authority, 
 (patria potestas,) or it disposes of things without 
 regard to persons ; as, for instance, whether property 
 of a certain quality can pass by will, or must be 
 transmitted by deed, and in either case, with what 
 formalities; or it enables or forbids certain persons 
 to do certain things, as it forbids a father to alienate 
 
 '^ Merlin, E^pertoire du Droit. " De Statutorum Diversitate, 
 Art. Statut. c. 2. p. 4. 
 
EIGHT OF JURISDICTION. 265 
 
 his patrimonial estates, and permits him to dispose 
 of property acquired during his lifetime^*. 
 
 § 162. With regard to Personal Statutes, they are Growth of 
 held to be of general obligation and force everywhere. inZrnl- 
 Ileal Statutes, on the other hand, are held to have no 'i<"iaiJa- 
 
 . . . . nspru- 
 
 extra-territorial force or obhgation. With regard to denoe. 
 Mixed Statutes, the extent and degree of their ope- 
 ration is one of the most intricate questions of Inter- 
 national Jurisprudence. Thus much however may be 
 said, that their operation is not a question of Right, 
 but of Comity ; and that the Comity of Nations 
 extends thus far only. If, for instance, a Mixed Sta- 
 tute involves a question of Contract, and it is sought 
 to enforce the Contract within the territory of an 
 Independent Power other than that Power within 
 whose territory the Contract has been made, it is 
 necessary in the first place, that the subject matter of 
 the Contract should be such as does not contravene 
 the Law or policy of the Power, before whose tri- 
 bunals it is sought to be enforced. This fact being 
 established as a preliminary, the tribunals of the 
 latter Power will take into consideration the lex loci 
 Gontract4s, to determine the constat of the obligation, 
 but they do not administer the Law of the place, 
 where the Contract was entered into, in awarding 
 the remedy. They award only that remedy which 
 the Lex Fori expressly ordains, or a remedy which is 
 in accordance with the analogy of the Lex Fori. 
 
 The administration of Foreign Law by Courts of 
 Justice under the Comity of Nations has given rise 
 to an extensive department of Juridical Science, 
 
 " The distribution of Statutes obs. 2. and by Voet, _de Sta- 
 
 into three classes is also adopted tutis, § 4. c. 2. See Pothier, Cou- 
 
 by BouUenois, Traits des Statuts tumes d'Orlians, c. i. § i. Art. 
 
 K^els et Personnels, L. I. c. 2. 6, 7, 8. 
 
266 EIGHT OF JUKlSDICTIOHr. 
 
 which has been termed Private International Juris- 
 prudence. This branch of Juridical Science, which 
 is concerned more especially with the conflict of Laws 
 arising out of the relations of civil life, which exist 
 between the citizens of different States, proceeds 
 upon a wise and liberal regard to the mutual con- 
 venience and mutual necessities of mankind. The 
 real diflSculty is to ascertain what principles in point 
 of public convenience ought to regulate the conduct 
 of Nations in these matters in regard to one another. 
 The necessity of the general welfare has sanctioned 
 certain exceptions to the rule, Siatuta suo clau- 
 duntur territorio, nee ultra ierritorium disponunt ; 
 and the Civil legislation of one Nation may through 
 the Comity of another Nation have effect given to it 
 beyond the limits of its territory. But there is no 
 such Comity in regard to the Criminal legislation tf 
 a Nation, and where the Criminal Law of one Nation 
 has effect given to it within the territory of another 
 Nation it is in virtue of express Conventions. 
 Exoep- § 163. Instances of such Conventions are found in 
 
 tion*ofBu- ^'^ Capitulations between the Christian Powers of 
 whUs?re- ^'^^'ope and the Ottoman Porte ; whereby magis- 
 Bident tratcs nominated by various Christian Powers are 
 ^Uito. respectively empowered to administer the Law of 
 their own Nation amongst its subjects, who may be 
 resident within the Ottoman territory. Treaties to 
 a similar effect have been concluded by the Emperor 
 of China with Great Britain^^, (22 July, 1843,) with 
 the United States of North America", (3 July, 1844,) 
 with France", (24 Oct. 1844,) and with Kussia^*, 
 (13 June, 1858,) and by the Mikado of Japan with 
 
 >' Martens, N. K, G6n. V. p. " Id. VII. p. 443. 
 434. " Id. XVI. pt. n. p. 128. 
 
 " Id, VII. p. 134. 
 
RIGHT OF JUBISDICTION. 267 
 
 Great Britain", (26 August, 1858,) and with France^", 
 (9 Oct, 1858,) and subsequently with most of the 
 European Nations. Such treaties, however, are in 
 the highest degree exceptional. But the Law of 
 European Nations has itself always been exceptional 
 in its application to Mahommedan and other Non- 
 Christian Nations. Amongst Christian States there 
 are no such fundamental differences in their respective 
 standards of Morality, as to render the Criminal Law 
 of one State totally inapplicable to the subjects of 
 another State ; but amongst the Mahommedan and 
 Buddhist Nations there is so essential a diversity in 
 the sanctions, which religion and morality attach to 
 human conduct, as contrasted with those which pre- 
 vail throughout Christendom, that from the oldest 
 time an immiscible character between Europeans and 
 Orientals has been maintained. Europeans are not 
 admitted into the general body and mass of the 
 society of Asiatic Nations ^^; they continue strangers 
 and sojourners in the land, if they reside amongst 
 them; they form de facto an extra-territorial commu- 
 nity, which does not acquire a National character by 
 permanent residence amongst them. In former times 
 when it was the custom of the Christian Powers of 
 Europe to maintain Factories in the cities of the 
 Levant, Europeans permanently trading under the 
 shelter and protection of those establishments were 
 held to take the National character of the Associa- 
 tion, under which they lived and carried on their 
 commerce. The modern system of exercising treaty- 
 jurisdiction leads to the presumption, that the sub- 
 jects of the Powers which are parties to those treaties, 
 
 " Martens, N. K. G611. XVI. " The lodian Chief, 5 Eo- 
 pt. II. p. 430. binson's Kep., p. 29. 
 
 '" Ibid. p. 439. 
 
268 BIGHT OE JUEISDICTION. 
 
 being exempt from the territorial Sovereignty of the 
 State, wherein they permanently reside, will retain, 
 notwithstanding such residence, the National cha- 
 racter which attaches to them by their origin. 
 Personal ^ 164. In Great Britain, in the United States of 
 Foreigners. Nortli America, in the Germanic States, in Holland, 
 foreigners equally with natives are allowed to bring 
 personal actions against foreigners before the tri- 
 bunals of the country where they may happen to 
 reside. They cannot bring real or possessory actions, 
 as those are within the exclusive competency of the 
 Courts of the loci rei sites. But inasmuch as by the 
 Law of Nations the jurisdiction of a Nation extends 
 over all persons and property within its territory, 
 with the exception of the persons and property of 
 Sovereign Princes and their Representatives, it would 
 seem clear upon general principles, that it is a matter 
 of civil policy to decide, in what manner that juris- 
 diction should be exercised as between foreigners. 
 In some countries, such as Spain and Portugal, there 
 have been special tribunals constituted under treaty- 
 engagements and charged with the jurisdiction over 
 questions in which foreigners were concerned. The 
 Judges of those tribunals were termed Judges-Con- 
 servators. In Portugal there was a remarkable 
 privilege enjoyed by British subjects. The Treaty 
 of 1654 concluded between the Republic of England 
 and the Kingdom of Portugal provided for the ap- 
 pointment of a Judge-Conservator of the British 
 Nation, whose province it was to decide all actions 
 between British Subjects not having a Portuguese 
 Domicil by the Law of Nations, and all actions be- 
 tween British and Portuguese subjects. There was an 
 analogous Treaty of a later date between France and 
 Portugal in regard to French Subjects. But in case 
 
BIGHT OF JUBISDICTION. 269 
 
 of a suit of a French Subject against a British 
 Subject, the privilege granted to the British Nation 
 being the most ancient, the Judge-Conservator of the 
 British Nation was held to be the Competent Judge ''^- 
 The institution of a special judge to administer justice 
 between resident foreigners not domiciled in Rome, 
 and between resident foreigners and Eoman Citizens, 
 was a peculiar feature of the early Eoman Jurispru- 
 dence. The functions of the Praetor Peregrinus are 
 described as being those of a Judge qui inter cives et 
 feregrinos jus dicebat, and the rules of law which he 
 administered were classed by the Roman Jurists under 
 the head of Jus Gentium, or the law which Natural 
 Reason teaches aU mankind, and which is observed 
 equally by all Nations, and under which all kinds of 
 personal contracts are comprised ^^. France occupies a 
 somewhat exceptional position as contrasted with the 
 States above mentioned. Two foreigners who have 
 entered into a contract in a foreign country are not 
 allowed to sue each other upon the contract before 
 a French Tribunal, unless one or other of the foreigners 
 has acquired a French domicil before the contract was 
 entered into^*. The same rule prevails in Belgium 
 and in the Kingdom of the Two Sicilies, where the 
 Code Napoleon has been introduced. The principle 
 of jurisprudence, upon which this practice is based, is 
 comprised in the maxim. Actor sequitur forum Bei, 
 according to which every defendant is entitled to be 
 sued before his natural judges. The Code Napoleon 
 interprets this maxim in such a case as referring to the 
 
 ''^ Gazette des Tribunaux of ducti sunt, ut emptio, venditio, 
 
 1 6 and 17 Oct. 1843, cited by locatio, conductio, Bocietas, depo- 
 
 Foelix, Trait6 du Droit Inter- situm, mutuum, et alii innumera- 
 
 national, T. I. § 148. biles. Just. Inst. L.I. Tit. II. § 2. 
 
 ^' Ex hoc jure' gentium et ^* Code de Commerce, Art, 
 
 omnes paene contractus intro- 631. 
 
270 EIGHT OF JURISDICTION. 
 
 Tribunals of the domicil of the Defendant. Vattel ^^ 
 applies this maxim in a different manner ; he holds 
 that, " disputes that may arise between foreigners or 
 between a foreigner and a citizen are to be deter- 
 mined by the Judge of the place, and according to the 
 laws of the place. And as the dispute properly arises 
 from the refusal of the defendant, who maintains that 
 he is not bound to perform what is required of him, 
 it follows from the same principle, that every de- 
 fendant ought to be prosecuted before his own Judge, 
 who alone has a right to condemn him and compel 
 him to the performance. The Swiss have wisely 
 made this rule one of the articles of their alliance, in 
 order to prevent the quarrels that might arise from 
 the abuses that were formerly too frequent in relation 
 to this subject. The defendant's Judge is the judge 
 of the place where the defendant has his domicil, or 
 the Judge of the place where the defendant happens 
 to be when any sudden difficulty arises, provided it 
 does not relate to an estate in land, or to a right an- 
 nexed to such an estate. In this latter case, as property 
 of that kind is to be held according to the laws of the 
 country where it is situated, and as the right of grant- 
 ing possession belongs to the ruler of that country, 
 differences relating to such property cannot be decided 
 anywhere except in the State on which it depends." 
 M. Foelix, in commenting on the practice of the French 
 Tribunals, considers that the refusal of the French 
 Tribunals to take cognisance of personal actions, in 
 which both the Plaintiff and Defendant are foreigners 
 temporarily resident in France, is a violation of the 
 Law of Nations as received in Europe, and exposes 
 French Subjects to a reciprocal disability before the 
 tribunals of another country, wherein they may be 
 ■" Droit des Gens, L. 11. § 103. 
 
EIGHT OF JURISDICTION, 271 
 
 temporarily resident, seeing that the condition of 
 reciprocity is presumed, whenever the Comity of 
 Nations is invoked. 
 
 § 165. The privilege oi Extra-Territoriality, or im- Extra-Ter- 
 munity from the Civil Law of the Territory, is by the of certain 
 practice of Nations accorded to all Sovereign Princes p^^J,^ 
 and their attendants, who may be temporarily within andTMngs. 
 the territory of an Independent Power. The same pri- 
 vilege is accorded to the Kepresentatives of Foreign 
 Sovereigns, who may be permanently resident under 
 the title of Ambassadors or Envoys at the Court of an 
 Independent Power. By the established practice of 
 Nations the House of Eesidence of an Ambassador or 
 Envoy is held to be subject to the civil and criminal ju- 
 risdiction of the Sovereign whom he represents, to the 
 exclusion of the jurisdiction of the Sovereign to whom 
 he is accredited, and within whose territory he resides. 
 . All persons attached to the person of the Ambassador 
 and all his moveable effects partake in this immunity. 
 In a similar manner, if an Independent Power permit 
 the armed forces of another Nation to pass through its 
 territory, this permission implies a waiver on its part 
 of all jurisdiction over the troops during their passage 
 through its territory, and a license to the commander 
 to maintain that discipline, and to inflict those punish- 
 ments, which the government of his troops may require. 
 On the other hand, if an armed force should enter by 
 land the territory of an Independent Power without 
 its permission, such Power is entitled to exercise its 
 absolute territorial jurisdiction over them, and if it 
 thinks fit, to disarm them. The rule, however, which 
 applies in relation to an armed force upon land, does 
 not apply equally to an armed force upon the sea, as 
 by the usage of Nations ships of war may freely 
 enter the ports of a friendly Power without express 
 
272 EIGHT OF JURISDICTION. 
 
 permission, unless there be an especial prohibition; 
 against vessels of war entering such ports. It is 
 competent for every Nation for reasons of State Policy 
 to close all its ports, or certain only of its ports, 
 against the vessels of war of all Nations or against 
 the vessels of war of a particular Nation, but in such 
 cases notice is usually giyen of such determination. 
 If there be no such prohibition, the ports of a Friendly 
 Nation are considered to be open to the public ships 
 of all Powers, with which it is at peace, for purposes of 
 hospitality, and they are supposed to enter such ports 
 under an implied license from the Sovereign Power 
 of the place. This implied license in the case of a 
 public ship is by practice construed to carry with it 
 a total exemption from the law of the tenitory. A 
 public vessel of war represents the Sovereign Power 
 of the Nation, under whose commissiou and flag it 
 sails. If it leaves the High Seas, the common high- 
 way of Nations, and enters within the maritime ter- 
 ritory of a Friendly State, it is entitled to the same 
 privileges which would be extended to the person of 
 the Sovereign ^^. A ship of war has been termed an 
 extension of the territory of the Nation to which it 
 belongs, not only when it is on the wide ocean, but 
 when it is in a foreign port. In this respect a ship of 
 war resembles an army marching by consent through 
 a neutral territory. Neither ships of war nor army so 
 licensed fall under the jurisdiction of a Foreign State ^''. 
 Merchant $ 1 66. Private vessels, on the other hand, enter the 
 ^bTeottr ports of a foreign Nation for the purposes of trade, 
 the Tern- under the implied protection of the Sovereign of the 
 ' place, but subject at the same time to the Law of the 
 
 '^'LordChief-JusticeMarsliairs American Eepts. p. ii6. 
 Judgment in The Schooner Ex- " Dr. Channing on the Duty 
 change v. M<'Facldon, 7 Cranch's of Free States. 
 
EIGHT OP JURISDICTION. 273 
 
 Territory. So complete is the authority of the lex 
 loci over all persons and property on board of private 
 vessels, that if a vessel under the British Mercantile 
 Flag, whilst slavery was a social institution of the 
 Southern States of North America, entered the port 
 of Charleston, having free negro sailors amongst her 
 crew, the mercantile flag did not protect those sailors 
 from the operation of the territorial Law of the state 
 of South Carolina, which forbade a free negro to be 
 at large within the limits of that State. It thus fre- 
 quently happened that negroes, or persons of colour, 
 though free subjects of her Britannic Majesty, and 
 duly entered on the muster roll of the Crew of a 
 British merchant vessel, on such vessel entering the 
 port of Charleston, were taken out of her by the 
 officers of the Port under the authority of the local 
 law, and were detained in custody until the vessel 
 cleared outwards, when they were again placed on 
 board of the ship with permission to leave the coun- 
 try. On the other hand, if a merchant ship under a 
 foreign flag were to enter a British Port with one or 
 more negro slaves on board, her mercantile flag would 
 not avail to exclude the jurisdiction of the British 
 Courts, if their territorial authority should be invoked 
 to vindicate the personal liberty of an human being 
 who is within British Territory ^^ It follows, that 
 the crew of a merchant vessel, which is within the 
 port of a foreign Nation, are amenable to the terri- 
 torial Law of that Nation in respect of all ofiences 
 against that Law committed within the port, whether 
 those offences be committed on board the merchant 
 vessel or on shore. But if an assault be committed 
 
 "' It was decided in the me- Court of King's Bench, June 22, 
 morable case of Somerset the 1772, that a State of Slavery 
 Black, by a Judgment of the cannot exist in Great Bntam. 
 
 PART I. T 
 
274: RIGHT OP JURISDICTION. 
 
 on board a merchant vessel whilst she is on the High 
 Seas, such an offence is only cognisable by the courts 
 of the country to which she belongs; no one on board 
 of her may be impleaded for such offence before the 
 courts of a foreign country, although the vessel may 
 enter its ports immediately after the offence has been 
 committed. The crime of piracy, of course, is an 
 exception to this rule, being an offence under the 
 Law of Nations, which may be punished even on the 
 High Seas by the first comer, and which crime every 
 sovereign Power has a concurrent jurisdiction to sup- 
 press. 
 Eight of $ 167. Considered from an international point of 
 ti^T*" view, the jurisdiction of a Nation must be founded 
 either upon the fact that the person or the property 
 is within its territory. Considered from a civil point 
 of view, jurisdiction may be founded upon natural as 
 well as local allegiance ; in other words every inde- 
 pendent State claims to make laws perpetually bind- 
 ing upon its natural bom subjects, wherever they may 
 be. But natural allegiance, or the obligation of per- 
 petual obedience to the government of the country, 
 wherein a man may happen to have been born, which 
 he cannot forfeit, or cancel, or vary by any change of 
 time, or place, or circumstance, is the creature of Civil 
 Law, and finds no countenance in the Law of Nations, 
 as it is in direct conflict with the incontestable rule 
 of that Law ; " Extra territorium jus dicenti impune 
 non paretur ^^." 
 
 Vattel, accordingly, holds that a citizen has an ab- 
 solute right to renounce his country and abandon it 
 entirely — a right founded on reasons derived from the 
 very nature of political society. For instance, if the 
 citizen cannot procure sustenance in his own country, 
 "■' Dig. L. II. Tit. I. § 20. Pothier, Pandect. L. I. T, i. n. 7. 
 
RIGHT OF JURISDICTION. 275 
 
 it is undoubtedly lawful for him to seek it elsewhere. 
 If the society of which he is a member fails to dis- 
 charge its obligations towards a citizen, he may with- 
 draw himself. If the major part of a Nation, or the 
 Sovereign who represents it, attempts to enact laws 
 relative to matters in which the Social Compact cannot 
 oblige every citizen to submission, as for instance in 
 the affairs of Eeligion, those who are averse to such 
 laws have a right to quit the Society and settle them- 
 selves elsewhere. Citizens, who under such circum- 
 stances abandon their native country sine animo re- 
 vertendi, and settle themselves elsewhere, are called 
 Emigrants, and the Law of Nations recognises in 
 such persons a capacity to acquire the National cha- 
 racter of the country of their adoption. 
 
 § 1 68. According to the Law of Nations, when theDomicii, 
 National character of a person is to be ascertained, rfoVof Na- 
 the first question is, in what territory does he reside, 
 and is he resident in that territory for temporary 
 purposes, or permanently. If he resides in a given 
 territory permanently, he is regarded as adhering to 
 the Nation to which the territory belongs, and to be 
 a member of the political body settled therein. If 
 he is only resident in a given territory for temporary 
 purposes, he is regarded as a stranger thereto, and a 
 further question must then be asked, in what country 
 is his principal establishment, and where, when he 
 has returned, does he consider himself to be at home^". 
 The country, which satisfies the conditions implied in 
 this further question, is designated in the language of 
 
 '" In eo loco singulos habere avocet ; unde cum profectus est, 
 domicilium non ambigitur, ubi peregrinari videtur, quo si rediit, 
 quis larem, rerumque et fortuna- peregrinari jam destitit. Codex; 
 rum suarum summam constituit, L. X. Tit. XXXIX. § 7. 
 unde nop sit discessurus, si nihil 
 
 T 2 
 
 tioual cha- 
 racter. 
 
276 EIGHT OF JURISDICTION. 
 
 public Law the Domicil of the individual, which 
 VatteP^ defines as a fixed residence in any place with 
 the intention of always remaining there. Wolff has, 
 in a similar manner, defined domicilium to be "ha- 
 bitatio aliquo in loco constituta, perpetuo ibidem 
 manendi animo ^^-" The word Domicil is originally 
 a term of Roman Municipal Law, the Eomans using 
 the expression to denote the place in which a Eoman 
 citizen had to discharge his municipal obUgations, in 
 distinction from the place in which he was born ; and 
 in this sense it is employed by Grotius ^^, as illus- 
 trating the privilege which Eoman citizens enjoyed 
 under the later Imperial Constitutions, of transferring 
 their permanent abode from one Municipium to an- 
 other. The distinction between the civis and the 
 incola was founded thereupon. "Gives quidem origo, 
 manumissio, allectio, vel adoptio, incolas vero domi- 
 cilium facit^*," and jurisdiction was made in many 
 cases to depend upon the place of residence of the 
 individual, as distinguished from the place of his 
 birth. The question of Domicil lost its importance 
 after the conquest of the Eoman Empire by the 
 Barbarians, as for a long time a system of personal 
 laws prevailed amongst the communities of mixed 
 races, the Lombard living under the Lombardic, and 
 the Eoman under the Eoman Law ^^ ; but after the 
 Peace of Westphalia, from which event we may date 
 the commencement of normal intercourse between 
 European Nations ^^ the subject of Domicil came to 
 be again discussed by Jurists under new circum- 
 
 " Droit des Gens, L. I. § 217. mischen Rechts im Mittelalter, 
 
 '^ Jus Gentium, § 137. c. III. § 30. — Story's Conflict of 
 
 '' De Jure Belli et Pacis, L. II. Laws, § 2. 
 c. V. § 24. '* The establishment of per- 
 
 '* Codex, L. X. Tit. 29. § 7. manent Embassies at Foreign 
 
 '■' Savigny, Geschichte des Rci- Courts dates from this period. 
 
RIGHT OF JURISDICTION. 277 
 
 stances, namely, with reference to the residence of 
 individuals in different Territories, and not as in the 
 Eoman system of Law, with reference to their resi- 
 dence in different places within the same Territory, 
 namely, the Eoman Empire. Sir Eobert Phillimore, 
 in Ms Treatise on Domicil ^'', has observed that " as 
 the subjects of one kingdom began to migrate into 
 and reside in other countries, the various questions, 
 arising from a conflict between the municipal regu- 
 lations of the original and the adopted country, gave 
 importance to the Law of Domicil, and rendered the 
 maintaining an uniformity of rules respecting it in 
 Christendom a matter of great consequence. Lord 
 Campbell, to the same effect, in a recent judgment of 
 the House of Lords, overruling the Scotch Courts of 
 Exchequer, has taken occasion to remark, that " the 
 doctrine of Domicil has sprung up in Great Britain 
 very recently, and that neither the Legislature nor 
 the Judges thought much of it, but it is a very con- 
 venient doctrine, it is now well understood, and it 
 solves the difficulty with which this case was sur- 
 rounded''*." Sir Eobert Phillimore has further re- 
 marked most aptly, that the circumstance which has 
 most contributed to give importance to the Law of 
 Domicil, has been the universally increasing value of 
 personal property. 
 
 § 169. Jurists have laid it down that there are, Junsdic- 
 properly speaking, three places of jurisdiction ; first, Remedies, 
 the domicil of the defendant, commonly called forum . 
 domicilii : " Nam ubi domicilium reus habet, vel tem- 
 pore contractlis habuit, licet hoc postea transtulerit, 
 ibi tantum eum conveniri oportet ^^ ; " secondly, the 
 
 " The Law of Domicil, § 8. (House of Lords) Reports, p. i. 
 =8 Thompson v. Advocate '» Codex, Lib. III. Tit. XIII. 
 General, 12 Clark and Finelly's § z. 
 
278 EIGHT OF JURISDICTION. 
 
 place where the thing in controversy is situated, com-' 
 monly caHed forum rei sitse: " Sed et in locis, in qui- 
 bus res, propter quas contenditur, constitutse sunt, 
 jubemus in rem actionem adversus possidentem mo- 
 veri '"' ; " and thirdly, the place where the contract is 
 made or other acts done, commonly called forum rei 
 gestse or forum contract'ds *^ : " lUud secundum est, 
 eum, qui ita fuit obligatus, ut in Italia solveret, si in 
 provincia habuit domicilium, utrobique posse conve- 
 niri, et hie et ibi**^." These distinctions constitute the 
 basis of the reasoning of most Jurists in discussing 
 the competency of tribunals to hold jurisdiction of 
 causes and the proper operation of Judgments and 
 Decrees (rei judicata) ; as for instance, whether they 
 are final and preclude any further proceeding on the 
 same cause of action before the Tribunals of another 
 country. Some countries, such as France, repudiate 
 aU obligation on the part of their Tribunals to ad- 
 minister the law of the forum contracts. Other 
 countries, such as Great Britain and the United States 
 of America, administer the law of the forum con- 
 tract4s in this manner : " What the nature of the 
 obligation is must be determined by the laws of the 
 country where it was entered into, and then this 
 country will apply its own law to enforce it *\" "We 
 all agree that in construing contracts we must be 
 governed by the laws of the^ country where they are 
 made, for all contracts have reference to such laws. 
 But when we come to remedies, it is another thing. 
 They must be pursued by the means which the law 
 points out, where the parties reside. The laws of the 
 
 " Codex, Lib. III. Tit. XIX. " Dig. L. V. Tit. I. s. 19. § 4. 
 
 § 3. •' Lord Chief Justice Eyre in 
 
 *' Humerus, Lib. V. Tit. I. Melan v. Fitzjamee, i Bos. and 
 
 BouUenois, Obs. § 25. Puller, 138. 
 
RIGHT OF JURISDICTION. 279 
 
 country where the contract was made can only have 
 reference to the nature of the contract ; not to the 
 mode of enforcing it. Whoever comes voluntarily 
 into a country subjects himself to the laws of that 
 country, and therein to all remedies directed by those 
 . laws on his particular engagements **." It is imma- 
 terial whether the remedies given by the law of a 
 foreign country, to the tribunals of which country the 
 ' complaint is made, exceed or fall short of those given 
 by the law of the place of contract ; in either case 
 the parties to a suit must accept the remedy of the 
 Forum, to which they have appealed. Lord Tenterden 
 in a more recent case has said, " A person suing in 
 this country must take the law as he finds it. He 
 cannot by virtue of any regulation in his own country 
 ^J^joy greater advantages than other suitors here, and 
 he ought not therefore to be deprived of any superior 
 advantage which the law of this country may confer. 
 He is to have the same rights which all the subjects 
 of this country are entitled to *^" A similar doctrine 
 has been solemnly promulgated in the House of Lords 
 on a still more recent occasion *^. 
 
 § 170. The rightful exercise of jurisdiction on the Comity of 
 part of a Nation depends upon one or other of these reglrTto" 
 conditions, that the person or the property is within ^^rertv 
 the territory of the Nation. In either of these cases 
 a Nation is capable of enforcing the judgment of its 
 tribiinals in invitos. If the persons are within its 
 territory, the Sovereign Power of the Nation can 
 compel them to appear before its tribunals, and can 
 enforce its decisions in personam. If the property 
 is within its territory, the Sovereign Power of the 
 
 " Mr. Justice Heath in Ogden and Adolph. 284. 
 V.Saunders, 12 Wheaton, p. 213. " Don. v. Lipmann, 5 Clark 
 " De la Vega V. Viana, i Barn, and Finelly, i, 13, 14. 
 
280 RIGHT OF JURISDICTION. 
 
 Nation has control over it, and can enforce its judg- 
 ments in rem. But the exercise of the strict Right 
 of Nations has been tempered by the Comity of 
 Nations with respect to persons, and with respect to 
 personal as distinguished from real property, and 
 in practice the Civil Law of a Nation has exclusive 
 operation given to it only with respect to persons 
 domiciled within its territory, and with respect to 
 real property which is there situate. The maxim • 
 mohilia sequuntur personam is interpreted to signify 
 that moveables are, in law, attached to the person of 
 the owner, although they may in fact be apart from 
 it. The incidents of Moveable property are accord- 
 ingly regulated by the same law as the person of the 
 owner, that is by the law of his Domicil. " Les 
 meubles," says Cochin, "quelque sorte qu'ils soient, 
 suivent le Domicile *'." Personal property having no 
 Situs of its own, follows the domicil of its owner **. 
 Mr. Justice Story, in his Conflict of Laws, has dis- 
 cussed at great length the reasoning of various Jurists 
 as to the grounds upon which this doctrine proceeds, 
 but their arguments all lead to the same result, and 
 whatever may have been the true origin of the 
 doctrine, it has now received so general a sanction 
 amongst civilized nations, that it may be treated as 
 part of the Jus Gentium. The grounds upon which 
 the English Tribunals have received the doctrine are 
 stated by Lord Loughborough : " It is," he says, " a 
 clear proposition not only of the Law of England, but 
 of every country in the world, where Law has the 
 semblance of a Science, that personal property has no 
 locahty. The meaning of this is, not that personal 
 
 " Cochin, (Euvres, Tom. V, General, 12 Clark and Finelly, 
 p. 85. (House of Lords) Kepts. p. i. 
 
 " Thomson v. The Advocate 
 
RIGHT OF JURISDICTION. 281 
 
 property has no visible locality, but that it is subject 
 to that law which governs the person of its owner, 
 both with respect to the disposition of it, and with 
 respect to the transmission of it, either by succession 
 or by the act of the party. It follows the law of the 
 person *^" Lord Chief Justice Abbot has observed on 
 a more recent occasion, that " personal property has 
 no locality, and even -v^th respect to that, it is not 
 correct to say that the Law of England gives way to 
 the law of the foreign country, but that it is part of 
 the Law of England that personal property should 
 be distributed according to the Jus Domicilii'"." 
 
 ^171. The Domicil of a person for international DomioU of 
 purposes may be either his Domicil of origin, or his Dom^n of 
 Domicil of choice. The Domicil of origin of a person choice, 
 is identical with the Domicil of his father at the time 
 of his birth. "Patris originem unusquisque sequa- 
 tur '^" If his parents at the tims of his birth should 
 be on a temporary visit to a foreign country, the 
 home of the parents, and not the country of his birth, 
 is the Domicil of origin of the child ^\ The Domicil 
 of origin is thus not necessarily identical with the 
 place of birth. The place of birth, on the other hand, 
 may constitute a person a natural born subject of 
 one Sovereign for municipal purposes, whilst he is a 
 domiciled subject of another sovereign for interna- 
 tional purposes. The DomicU of origin cannot be 
 divested during minority by a change of .residence on 
 the part of the minor with the intention of making 
 his new residence his home, but it may be divested 
 by the act of his father. If the father changes his 
 
 " Still V. 'Worswick, i Henry 451, S. C. 2 Clark and Fin. 571. 
 
 Blackstone's Eepts. 690. " Codex, Lib. X. Tit. XXXI. 
 
 ^° Doe d. Birthwhistle v. Var- § 36. 
 
 dill, 5 Barn, and Cresswell, 438, "" WolfiBi Jus Gentium, § 138. 
 
282 EIGHT OF JURISDICTION. 
 
 residence and acquires a new Domicll, it becomes the 
 Domicil of his minor children, and if the father dies 
 • leaving minor children surviving him, the father's 
 Domicil of choice at the time of his death is the 
 necessary Domicil of his children until they come of 
 age, and are capable of acquiring a Domicil of choice. 
 Every person of full age is capable of selecting a 
 Domicil ; and if such a person removes from the 
 country, where his father had his Domicil, to a foreign 
 country with the settled purpose of making it his 
 permanent residence, the country of his adoption be- 
 comes his domicil of choice. Domicil being thus under 
 the Law of Nations the foundation of jurisdiction 
 over persons, it is intelligible on general principles 
 that the residence of Ambassadors and Political En- 
 voys in a foreign country, even if such residence con- 
 tinue up to the time of their death, being a residence 
 " sine animo manendi," should not operate to change 
 their Domicil, such as it was at the time when they 
 became resident in the foreign country ; their extra- 
 territoriality besides secures to them an " immiscibi- 
 lity " of national character. A different rule however 
 prevails with respect to Consuls or Commercial 
 Agents, who, if permanently engaged in commerce 
 themselves, may acquire a Domicil in the country 
 where they reside. It is sometimes a question of 
 great intricacy to determine in what place a person 
 has his legal Domicil. No person according to the 
 Law of Nations is without a Domicil. In the absence 
 of aU evidence of any other Domicil de facto, the 
 Domicil of Origin is the Domicil de jure ^^, hut a per- 
 
 "' Quoniam tamen domicilium vagabundi quoque domicilium 
 
 naturale tamdiu quis retinere uaturale vulgo retinere cen- 
 
 censetur, quamdiu propria vo- Bentur. Wolff. Jus Gentium, 
 
 luntate eibi nullum constituit, § 139. 
 
RIGHT OF JUEISDICTION. 283 
 
 son may have more than one Domicil for commercial 
 purposes ; as for instance, a person may be a partner 
 in a great commercial establishment in New York, 
 and in another equally great commercial establish- 
 ment in Liverpool ^* ; and in respect of contracts he 
 may be subject to two different jurisdictions accord- 
 ing as the contract is entered into by the New York 
 establishment, or by the Liverpool establishment; but 
 no person can have more than one testamentary 
 Domicil, as the latter is identical with the place of 
 the party's principal estabhshment. To enter more 
 minutely into the criteria of Domicil would be foreign 
 from the purpose of the present treatise, which is 
 concerned with Domicil only so far as the principle 
 of Domicil influences the Jurisprudence of Nations, 
 in reference to persons and personal property. Mr. 
 Justice Story's excellent work on the Conflict of Laws 
 and M. Foelix's treatise on Private International Law 
 may be consulted with advantage by those, who desire 
 to become more accurately acquainted with the details 
 of this branch of the Law of Nations. 
 
 "* Labeo judicat eum, qui plu- verius est. Dig. L. Tit. I. § g. 
 
 ribus locis ex aequo negotietur. The San Jos6 Indiano and Cargo, 
 
 nusquam domioilium habere ; 2 Gallison's American Eeports, 
 
 quosdam autem dicere refert, p. 287. The Portland, 3 Kobin- 
 
 pluribus locis eum incolam esse, son, p. 41. The Jonge Classinaf 
 
 aut domioilium habere ; quod 5 Kobinson, p. 503. 
 
CHAPTEE XL 
 
 RIGHT OF THE SEA. 
 
 The use of the open Sea common to all mankind — A Common 
 » Law of the Sea — AflBnity to the Roman Law in certain matters — 
 Origin of the Admiralty Jurisdiction — Its connection with that of 
 the Consules Maris — Piracy justiciable everywhere — Concurrency 
 of Admiralty with National Jurisdiction — National Jurisdiction over 
 the open Sea — Maritime Jurisdiction of a Nation — Territorial Seas 
 distinguished from Jurisdictional "Waters — Prescriptive' Eight over 
 portions of the Sea — Narrow Straits — Right of Fishery on the 
 High Seas — Neutrality of Jurisdictional Waters — Right of Mari- 
 time Toll in respect of Lighthouses and Sea-Marlcs — Prescriptive 
 Right of Sea-Toll — The Sound Dues — The Straits between the 
 Mediterranean and the Black Sea — The Comity of Nations in mat- 
 ters of Revenue and Quarantine — Right of Fishery in Jurisdictional 
 Waters — Convention of 2 August, 1839, between Great Britain and 
 France — Agreement of 1874 between the British and German 
 Governments — Ceremonial of the High Seas — Ceremonial within 
 Jurisdictional Waters — Origin of the Mercantile and of the Military 
 flag of the Sea — Certain States entitled only to a mercantile flag — 
 Project of a Swiss mercantile flag of the Sea — The Jerusalem or 
 Terra Santa flag. 
 
 The use of § ^72. The Ocean or open Sea is by Nature not 
 Selcom- capable of being reduced into the Possession of a 
 mon to all Natiou, since no permanent settlement can be formed 
 
 mankind. . .^. „ .,.. 
 
 upon its ever changing suriace ; neither is it capable 
 of being brought under the Empire of a Nation, as 
 no armed fleet can effectively occupy it in its full 
 extent, so as to preclude other Nations altogether from 
 the use of it. Nature herself has in these respects 
 set limits to human enterprise and human ambition. 
 But independently of these insurmountable difficulties, 
 the use of the open Sea, which consists in navigation, 
 is innocent and inexhaustible ; he who navigates 
 
RIGHT OP THE SEA. 285 
 
 upon it does no harm to any one, and the Sea in this 
 respect is euflficient for all mankind. But Nature 
 does not give to man a right to ajapro^riate to 
 himself things which may be innocently used by 
 all, and which are inexhaustible and sufficient for all. 
 For since those things, whilst common to aU, are 
 sufficient to supply the wants of each, whoever should 
 attempt to render himself sole proprietor of them, (to 
 the exclusion of all other participants,) would unrea- 
 sonably wrest the bounteous gifts of nature from the 
 parties excluded. Further, if the free and common 
 use of a thing, which is incapable of being appropri- 
 ated, were likely to be prejudicial or dangerous to 
 a Nation, the care of its own safety would authorise 
 it to reduce that thing under its exclusive Empire, if 
 possible, in order to restrict the use of it on the part 
 of others, by such precautions as prudence might 
 dictate. But this is not the case with the open Sea, 
 upon which all persons may navigate without the 
 least prejudice to any Nation whatever, and without 
 exposing any Nation thereby to danger. It would 
 thus seem that there is no Natural warrant for any 
 Nation to seek to take possession of the open Sea, 
 or even to restrict the innocent use of it by other 
 Nations'. 
 
 ^ 173. The open Sea is, strictly speaking, nztZZiits a Common 
 territorium. No Nation can claim to exercise juris- sea. 
 diction over its waters on any ground of exclusive 
 Possession. On the other hand, it is the public high- 
 way of Nations, upon which the vessels of all Nations 
 meet on terms of equality, each vessel carrying with 
 it the laws of its own Nation for the government of 
 those on board of it in their mutual relations with 
 
 ' Vattel, Lib. I. c. 23. § 279. Grotius, Lib. I. c. 2. § 3. Wolffii 
 Jus Gentium, § 127. Kluber, § 132. 
 
286 EIGHT OF THE SEA. 
 
 one another, but all subject to a Common Law of 
 Nations in matters of mutual relation between tbe 
 vessels themselves and their crews. The origin of 
 this Common Law of the Sea is lost in the darkness 
 of a very remote antiquity, but it sprang into exist- 
 ence with the earliest necessities of maritime com- 
 merce. We find the rudiments of such a law amongst 
 the Athenians ; and the Ehodian Laws of the Sea, of 
 which a very few fragments have been preserved in 
 the Digest 2, are supposed to have been a collection 
 of Maritime Customs observed amongst the Nations 
 established on the shores of the Mediterranean', and 
 which formed at such time their Common Law on 
 Maritime matters. Rules of Law which prevailed 
 amongst those Nations are still recognised by the 
 Maritime tribunals of existing European Nations, as 
 rules for the decision of analogous questions. 
 Affinity to § 1 74- It would appear, that the Romans under the 
 LrvfiHer- Empire with their usual wisdom recognised the Cus- 
 in mat- toms of the Sca, as furnishing the rule of decision in 
 Maritime questions, where such Customs were not 
 contrary to any positive Law of the Empire. Thus 
 when Eudsemon of Nicomedia appealed to the Em- 
 peror Antonine against the rapacity of the Publicans 
 in the islands of the Cyclades, on the occasion of his 
 having suffered shipwreck, the Emperor is represented 
 to have rephed*, "Ego quidem mundi dominus. Lex 
 autem maris. Lege id Rhodia, quse de rebus nauticis 
 praescripta est, judicetur, quatenus nulli nostrarum 
 legum adversatur. Hoc idem Divus Augustus judi- 
 cavit." Bynkershoek*, in discussing this passage of 
 the Digest, has not approved the usual punctuation, 
 
 " Dig. L. XIV. Tit. II. ' Dig. L. XIV. Tit! H. § 9. 
 
 ' Pectii Comment, ad legem ° De lege Rhodia, c. 7. 
 Rhodiam de jactu. 
 
 tain 
 ters. 
 
EIGHT OF THE SEA. 287 
 
 nor admitted the received interpretation of the text, 
 and has suggested that the words of the. Emperor 
 Antonine point only to a privilege which the Eho- 
 dians themselves enjoyed of living under their own 
 laws, as long as they were not inconsistent with the 
 Positive Law of the Empire. It is not very material 
 for our present purpose to determine, which is the 
 more correct construction of the passage in the Digest. 
 On a careful examination of .the legislation of the 
 Roman Emperors, so little will be found of positive 
 enactment in Maritime matters, that we are led irre- 
 sistibly to the conclusion, that there must have been 
 a Consuetudiuary Law, according to which questions 
 of Maritime Contract and Tort were settled; and 
 the probability is, that the principles involved in that 
 Consuetudinary Law were in harmony with principles 
 that were admitted in the Civil Law of Rome. At 
 all events we find in portions of the Consuetudinary 
 Law of the Sea, as it has come down to us in various 
 collections of Sea-Customs, e.g. *the Rooles or Juge- 
 mens d'Oleron, the Consolato del Mare, and the Mari- 
 iime Law (Wdter-Recht) of Wisby, many features of 
 resemblance to provisions which exist in the Civil 
 Law of Rome, not indeed in pari materid, but on 
 subjects of which the analogy is complete. It is 
 possible that these Rules of the Sea may be actual 
 traditions of the Civil Law itself, which, recommended 
 by its natural equity, may have infiltered itself im- 
 perceptibly into Maritime causes. Whatever may be 
 the true explanation of this resemblance, these Cus- 
 toms of the Sea have been received by all Nations, 
 and all Nations exercise a concurrent jurisdiction to 
 enforce them, and for this purpose there are special 
 
 ^ PardessuB, Collection de Lois Maritimes anterieures au XVIII 
 Sifecle. Paris, 1834. 
 
288 RIGHT OF THE SEA. 
 
 tribunals established in every country, known as 
 Courts of Admiralty Jurisdiction. 
 Origin of ^175. The origin of the term Admiral or Amir al 
 
 the Adnii- • . -i i i i a ^ 
 
 raity ju- IS not agreed upon amongst learned men. borne have 
 nsdiction. indited to derive it from the Saxon aen mere eaP, 
 that is, over all the sea, others from the Asiatic Amir, 
 or Emir, signifying Prsefect. It seems more probable 
 that the term came first into use amongst the Mari- 
 time Nations of Southern Europe, and that it was 
 derived from an Oriental Source. Sir H. Spelman is 
 of opinion, that this high Officer was not known in 
 England by that name or style before the beginning 
 of the reign of King Edward I, about the year 1272, 
 although the office of Capitaneus maris existed before 
 that time. The earliest Admiral of all France seems 
 to have been Enguarantus Bominus de Causy in the 
 reign of Philip the Bold, about 1280*. The collection 
 of Castilian Laws, known as Las Siete Partidas, and 
 the origin of which is referred to a date as far remote 
 as 1258 or 1266, contains a full definition of the 
 Office of Admiral. " On appelle Amiral, -le chef de 
 tons ceux qui composent 1' Equipage des navires armds 
 en guerre, et il a sur la flotte qui est comme le corps 
 d'arm^e principal, ou sur une escadre qui sera d4- 
 tachde, le mime pouvoir que le roi lui-mlme, s'il ^tait 
 en personnel." Such seems to have been a brief sum- 
 mary of the functions of the Admiral of the King of 
 Castile and Leon. On the other hand, it would appear 
 from a collection of Maritime Laws of Catalonia and 
 Aragon of the Fourteenth Century'" that the word 
 " Amiral" in its simplest sea-meaning was used to 
 
 ' Godolphin,aViewoftheAd- ' Part H. Lib. IV. Tit. 34. 
 
 miralty Jurisdiction, anno 1661, Lex 3. 
 
 p. 3. " Pardessus, Lois Maritimes, 
 
 ' GodolpMn on the Admiralty Tom. V. p. 404. 
 Jurisdiction, p. 21. 
 
RIGHT OP THE SEA. 289 
 
 denote the chief of any Maritime expedition, even if 
 the expedition consisted of a single ship. It is not 
 improbable that an extraordinary increase of piracy 
 in the latter part of the Thirteenth Century led to a 
 more careful administration of the Laws of the Sea in 
 England, in France, and in Denmark, after the ex- 
 ample perhaps of CastUe, and that the jurisdiction and 
 cognisance of all matters whatever happening upon 
 the Sea, by reason whereof there should be cause of 
 suit either between subjects and strangers or between 
 strangers only, was with that object vested exclu- 
 sively in a High Admiral with the full powers of the 
 Lieutenant of the King. 
 
 ^176. Whatever may have been the origin of theitaCon- 
 institution of Courts of Admiralty, the forms of their with that 
 proceedings were undoubtedly borrowed from the^^^*^®,^^ 
 Civil Law of Rome, and the rules by which they were Maris. 
 governed were, as is everywhere avowed, the ancient 
 Laws, Customs, and Usages of the Seas. There can 
 scarcely be a doubt that the Admiralty Courts of Eng- 
 land and the Maritime Courts of all the other Powers 
 of Europe have been formed upon one and the same 
 common model, and that their jurisdiction, if not 
 restricted by the territorial law, included all those sub- 
 jects of which the Consular Courts {Consules MarisY'^ 
 in the cities of the Mediterranean had cognisance, and 
 with which subjects the Municipal judges in those 
 cities were forbidden to intermeddle. These Courts are 
 described in the Consolato del Mare as having juris- 
 diction of all controversies respecting freights ; of 
 damages to goods shipped ; of the wages of mariners ; 
 of the partition of ships by public sale; of jettison; of 
 commissions or bailments to masters and mariners; of 
 debts contracted by the master for the use and neces- 
 
 " De Lovio v. Boit. 2 Gallison's Keports, p. 400. 
 PAUT I. V 
 
290 BIGHT OF THE SEA. 
 
 sities of his ship ; of agreements made by the master 
 with merchants, or by merchants with the master ; 
 of goods found on the high sea or on shore ; of the 
 armament or equipment of ships, galleys, or other 
 vessels, and generally of all other contracts declared 
 in the Customs of the sea". It is not within the scope 
 of the present work to enter further into the details 
 of the Admiralty Jurisdiction. But it may be ob- 
 served that there is a Maritime Law of Nations in time 
 of war, as well as in time of peace. The Admiralty 
 Court exercises a voluntary jurisdiction in time of 
 Peace ad instantiam partis, and is in such matters 
 termed an Instance Court, whilst in time of War it 
 exercises a compulsory jurisdiction over all the com- 
 missioned vessels of the Crown, which are required to 
 bring their captures before it, in order that the Ad- 
 miral or his Lieutenant may determine whether such 
 captures are good prize of war or not. The Ad- 
 miralty Court is for such purposes termed a Court of 
 Prize, and its functions are not merely to administer 
 the Law of Nations as between the belligerents, but 
 the Law of Nations as between the belligerents and 
 neutrals. 
 Piracy jus- § i77- The High Seas are said in a certain sense to 
 every-^ 1^0 nulUus territorium, as not being subject to the 
 where. exclusive Possessiou or Empire of any Nation. In 
 another sense they may be called the common highway 
 of Nations, and perhaps this is the more correct ex- 
 pression, seeing that all who navigate them are sub- 
 ject to a Common Law of Nations, and, in matters 
 within the scope of that Law, are amenable to the 
 maritime tribunals of all Nations. The maintenance 
 of the peace of the Sea is one of the objects of that 
 Common Law, and all offences against the peace of 
 " Consolato del Mare, ch. 22. Godolphin, Adm. Jur. p. 45. 
 
RIGHT OF THE SEA. 291 
 
 the Sea are offences against the Law of Nations, and 
 of which all Nations may take cognisance. The 
 robber equally with the murderer on the High Seas 
 is technically a sea-felon or pirate, and every hand 
 may be lawfully raised against him ; he is, in fact, re- 
 garded as an enemy of the human race (hostis humani 
 generis). The Pirate has no National character, and 
 to whatever country he may have originally belonged, 
 he is justiciable everywhere, being reputed out of the 
 protection of aU laws and privileges whatever ^^ 
 
 § 1 78. There are however portions of the sea, upon Concurren- 
 which if offences be committed, they are not merely riity with' 
 regarded as offences against the Peace of the Sea, ^^^^. 
 but oJBfences against the Peace of a Nation. Thus *><>"• 
 although the jurisdiction of the Admiralty travels 
 everywhere with the flow of the tide, yet when the 
 Sea approaches the territory of a Nation or passes 
 within the headlands of its coast, an offence com- 
 mitted upon tidal waters may become an offence not 
 merely against the Peace of the Sea, but against the 
 Peace of the Nation, and accordingly will be cog- 
 nisable by the Civil Courts of the Nation as well as 
 by the Admiralty Court. By practice, indeed, the 
 Admiralty Jurisdiction over tidal rivers is restricted to 
 such portions of them as are below the first bridges ^^ 
 {infra primes pontes) seawards. Above the first 
 bridges, which are effective impediments to free 
 passage to or from the sea, the Civil Law of the 
 Nation is of exclusive force : below that point, until 
 we reach the High Seas, the Civil Law of the 
 Nation operates concurrently with the Maritime Law 
 of Nations. 
 
 ^'^ Life of Sir Leoline Jenkins, phin, Adm. Jurisd. p. 1 34. cf. 1 5. 
 Tom. II. p. 714. . Rich. II. c. 3. 
 
 *' Spelman's Eeliquiae. Godol- 
 
 V 3 
 
292 EIGHT OF THE SEA. 
 
 National § 1 79- It becomes necessary therefore to inquire 
 i"^r Ae'°° ^^^^ portion of the open Sea is by the practice of 
 open Sea. Nations held to be within the operation of the Terri- 
 torial Law of a Nation. " It is of considerable im- 
 portance," writes Vattell^ " to the safety and welfare 
 of States, that a general liberty be not allowed to all 
 comers to approach so near their possessions, espe- 
 cially with ships of war, as to hinder the approach of 
 trading Nations, and molest their navigation." Upon 
 this principle a Neutral Nation is held to be entitled 
 to preclude Belligerent Powers from carrying on mu- 
 tual hostilities upon the open sea within a certain 
 distance of its coast. That distance, as between Na- 
 tion and Nation, is held to extend as far as the safety 
 of a Nation renders it necessary, and its power is 
 adequate to assert it ; and as that distance cannot, 
 with convenience to other Nations, be a variable dis- 
 tance, depending on the presence or absence of an 
 armed fleet, it is by practice since the introduction 
 of firearms identified with that distance, over which • 
 a Nation can command obedience to its Empire by 
 the fire of its cannon '*. That distance, by consent, is 
 now taken to be a Maritime League seawards along 
 all the coasts of a Nation. Beyond the distance of 
 a sea-league from its coasts, the Territorial Laws of 
 a Nation are, strictly speaking, not operative. It 
 may happen that a Nation chooses to extend its own 
 Laws over its National vessels wherever they may be 
 navigated on the High Seas, but however general and 
 comprehensive the phrases used in the Municipal Law 
 may be, they must be always restricted in their con- 
 struction to the citizens of the State, to which the 
 vessel belongs ^^, and to the mutual relations between 
 
 *' Droit des G-ens, L. I. § 288. '* Bynkershoek, L. II. c. 3. § 1 3. 
 '° The Apollo, 9 Wheatou's Eeports, § 370. 
 
RIGHT OF THE SEA. 293 
 
 such citizens, and cannot be extended to the vessels 
 of other Nations, or to the persons on board of them. 
 
 § 1 80. Writers on Public" Law have spoken of the Maritime 
 open sea (mare vastum) within the distance of aifaNaVon! 
 Maritime League along the coasts of a Nation as its 
 Maritime Territory (See-Gebiet). If the Law of Na- 
 tions be held to be a portion of the Law of each Nation 
 in such matters as are within its scope, then there 
 may be no valid objection to the use of the phrase 
 Maritime Territory in the sense of Territory subject 
 to the Law of the Sea, but inasmuch as the term ter- 
 ritory in its proper sense is used to denote a district 
 within which a Nation has an absolute and exclusive 
 right to set Law, some risk of confusion may ensue if 
 we speak of any part of the open Sea over which 
 a Nation has only a concurrent right to set Law, as 
 its Maritime Territory. It would tend to greater 
 clearness, if Jurists were to confine the use of the term 
 Maritime Territory to the actual coasts of a Nation, 
 or to those portions of sea intra fauces terras over 
 which a Nation is entitled to exclusive jurisdiction, 
 and over which its Territorial Law has paramount 
 force and operation, and if they were to designate 
 the extent of tidal waters, over which the Territorial 
 Law of a Nation operates concurrently with the Law 
 of Nations, as its Jurisdictional Waters^''. 
 
 § 181. If a sea is entirely enclosed by the Territory Territorial 
 of a Nation, and has no other communication with gu*gj,ed '"" 
 the Ocean than by a channel, of which that Nation ^°^„^^f ^" 
 may take possession, it appears that such a sea is no waters, 
 less capable of being occupied and becoming property 
 than the land, and it ought to follow the fate of the 
 
 " Kluber, § 130. Wheaton's ment in the Schooner Fame, 
 
 Elements, pt. 4. c. 4. § 6. 3 Mason's American Eeports, 
 
 '■^ Mr. Justice Story has adopt- p. 152. 
 ed this expression in his judg- 
 
294 RIGHT OF THE SEA. 
 
 country that surrounds it'^ The Black Sea, -whilst 
 its shores were in the exclusive possession of the 
 Ottoman Porte, was an instance of a Territorial Sea 
 of this character. So likewise Straits, which serve as 
 a communication between two seas, and of which the 
 shores on both sides are the Territory of one and 
 the same Nation, are capable of being reduced into 
 the possession of that Nation. In the same manner 
 a bay of the Sea, the shores of which are the Territory 
 of one and the same Nation, and of which the entrance 
 may be effectively defended against all other Nations, 
 is capable of being reduced into the possession of a 
 Nation. "By this instance," writes Grotius", "it 
 seems to appear that the property and dominion of 
 the Sea might belong to him who is in possession of 
 the lands on both sides, though it be open above as 
 a gulf, or above and below as a strait, provided it be 
 not so great a part of the Sea, as when compared 
 with the lands on both sides, it cannot be supposed 
 to be a portion of them." 
 
 Puffendorf 2", to the same effect, says, " that gulfs 
 and channels or arms of the Sea are, according to the 
 regular course, supposed to belong to the people with 
 whose lands they are encompassed." Whenever a 
 Nation has an exclusive right over an entire sea, or 
 over a bay, no other Nation can claim a right of 
 navigation therein against its will. But in case the 
 opposite sides of a bay are inhabited by different 
 Nations, then under the general Law of Nations, 
 each Nation has a right to go to the central line, 
 drawn at low water mark, as marking the extent of 
 its jurisdictional waters ^\ But although the terri- 
 
 " Vattel, L. I. § 292. Wolff, c. 3. § 8. 
 § 128. '"' Law of Nature and of Na- 
 
 \» De Jure Belli et Pacis, L. II. tions, L. IV. c. 5. § 8. » ibid. 
 
EIGHT OF THE SEA. 295 
 
 torial limit of either Nation for purposes of absolute 
 jurisdiction may not extend beyond the central deep- 
 water line, yet the right of innocent use of the entire 
 bay for the purposes of navigation or passage may 
 be common to both Nations. Such a right does not 
 destroy the territorial jurisdiction of each Nation as 
 far as the middle of the water (medium filum aquae), 
 but it is in the nature of an easement, as it is called 
 in English Law, or a servitude, as it is termed in the 
 Eoman Law^^. It is in fact analogous to the right 
 of private way over the land of another. This right 
 of passage and navigation must exist as a common 
 right in all those cases, where such passage or navi- 
 gation is ordinarily used by both Nations, and is 
 indispensable for their common access to their own 
 shores. A bay may be so narrow, or so irregular, or 
 so liable to difficulties from winds, waves, and cur- 
 rents, that it cannot be effectively navigated by either 
 Nation, without each having a right of passing over 
 any portion of the water at any time. If in such 
 a case no exclusive right is recognised in either 
 Nation, the constant use by both is a conclusive 
 proof of both having a common right of passage and 
 navigation. 
 
 § 182. In the case of portions of the Sea, a Nation Preacript- 
 may have a peculiar possession of them, so as tOove/pOT- 
 exclude the universal or common use of them byl"^"^*"^' 
 pther Nations ^^ Lord Stowell held that portions of 
 the Sea might be prescribed for^*; and Mr. Justice 
 Story deemed it possible that a Nation might have 
 an exclusive use founded on the acquiescence or tacit 
 
 22 Instit. II. Tit. 3. De Servi- ^3 Kluber, § 133. 
 tutibus. Hugo, Histoire de Droit ^ The Schooner Fame, 3 Ma- 
 
 Eomain, T. I. § 202. Kluber, son's Eepts., p. 150. The Twee 
 
 § 137. Gebroeders, 3 Kob. p. 339. 
 
296 RIGHT OP THE SEA. 
 
 consent of other Nations. There is no inconsistency 
 between these views and those of Grotius, who says, 
 " that he who has occupied any part of the Sea can- 
 not lawfully hinder the navigating therein of ships 
 that are unarmed, and give no room to apprehend 
 danger;" for Grotius must be understood as speak- 
 ing of the natural right of a Nation, and not of an 
 instituted right founded on the tacit consent of other 
 Nations^*. Lord StowelP^ has observed that the 
 general presumption certainly bears strongly against 
 such exclusive rights, and the title is a matter to be 
 established on the part of those claiming it, in the 
 same manner as aU other legal demands are to be 
 substantiated by clear and competent evidence ; in 
 other words, by proof of ancient and constant 
 usage. 
 Narrow $ 1 83. The difficulty in respect of narrow straits 
 
 connecting portions of the open Sea and separating 
 independent States, where the Straits are not of suf- 
 ficient width to allow to each State a margin of juris- 
 dictional waters to the extent of three miles from its 
 coast, is solved by applying to them the same prin- 
 ciple of law, which is applied to determine the extent 
 of the jurisdiction of Eiparian States over a river, 
 which separates them, namely, that the Empire of 
 each State extends to the mid-channel. The rule is 
 thus expressed by Pufiendorf ^f': " But in case different 
 nations border on the saine channel, the sovereignty- 
 of each shall be conceived to reach unto the middle 
 of the water from every part of their respective 
 shores, unless either aU the States have agreed by 
 
 '^ Puffendorf, L. IV. c. 5. =« Book IV, ch. v. § 8, Basil 
 § 8. Kennett's translation, London, 
 
 ^^ The Twee Gebroeders, 3 1728. 
 Eob, p. 339. 
 
 Straits, 
 
RIGHT OF THE SEA. 297 
 
 covenant to use the whole water promiscuously 
 amongst themselves, and to exercise a general undi- 
 vided sovereignty over it against Foreigners, or else 
 if one particular people has obtained a dominion over 
 the whole by pact, or by the tacit concession of the 
 rest, or by right of conquest, or because they first 
 fixed their station near it, and immediately took it 
 into full possession, exercising acts of sovereignty 
 against the people of the opposite shore, in which 
 latter case nevertheless the other neighbouring States, 
 their fellow-borderers, shall be supposed to be lords 
 of each of their particular ports, and of so much of 
 the sea as the convenient access to the shore re- 
 quires." Puffendorf states this rule in general terms 
 as applicable to straits of greater or less width, and 
 the principle of law so expressed is affirmed to its 
 full extent in a very ancient English Law Treatise, 
 whieh was compiled in the reign of King Edward II, 
 namely, " La Somme appell^ Mirroir des Justices." 
 The author of the work, Andrew Horn, Chamberlain 
 of the City of London, cites an ordinance of King 
 Edward I, which enumerates amongst the Jura 
 Coronse "La Soveraigne Signiory de tout la terre 
 jesqu'al milieu de la mere environt la terre!" With- 
 out however pressing the application of the principle 
 of the medium filum aquas in the present day to 
 straits of an indefinite width, which nevertheless may 
 have been of ancient days justifiable in the interest 
 of maritime commerce with a view to put down 
 piracy, the principle in its application to narrow 
 straits is still in the present day highly convenient, 
 and at the same time calculated to prevent contro- 
 versy, and it has been maintained by Great Britain 
 and by the United States of America to be the prin- 
 ciple which regulates the general rights growing out 
 
298 RIGHT OF THE SEA. 
 
 of the Law of Nations on the subject. Any other 
 rule would be attended with inconvenient conse- 
 quences, as regards the inviolability of the marginal 
 waters of the one or the other State, if it should be 
 neutral, whilst its opposite neighbour should be at 
 war, and as regards the right of either State to seize 
 vessels for a violation of its Eevenue Laws or of its 
 Laws of Health, if they should be guilty of any illicit 
 act in the waters adjoining its coast. Vattel has 
 omitted to treat the case of straits of which the 
 opposite shores are in the possession of different 
 States, possibly because instances of such straits were 
 not frequent in his time. The Sound, for example, 
 of which he justifies the toll levied upon passing 
 vessels, was in his day under the exclusive Sove- 
 reignty of one and the same monarch, the Crowns of 
 Norway and of Denmark being at that time united. 
 But several cases of straits have come under conside- 
 ration in modern times, in which the existence of 
 two rival or independent jurisdictions over the same 
 waters would have been found highly inconvenient. 
 For instance, there are sea-passages, such as the 
 Lymoon Pass, which separates the Island of Hong 
 Kong from the Chinese Mainland, which is less than 
 three mUes in width, and over which neither Great 
 Britain nor China claims exclusive jurisdiction, but 
 either State is content with exercising its jurisdiction 
 ad medium filum aquse. The same principle of law 
 was observed in the negotiations between Great 
 Britain and the United States, which ended in the 
 Conventions of 1803 and of 1807, in which, according 
 to Mr. Justice Story, the middle of the channel 
 between the islands belonging to the respective 
 nations was taken to be the true and proper boun- 
 dary line between them in accordance with the 
 
RIGHT OF THE SEA. 299 
 
 general law of Nations. Professor Bluntschli^'' would 
 therefore seem to have overlooked the received usage 
 of Nations when he lays it down in his International 
 Law Codified, that where two States are situated on 
 the border of a free sea, so narrow that the zone of 
 sea which forms part of the territory of the one 
 overlaps the corresponding zone of the other, the 
 two States are bound to accord to each other reci- 
 procally rights of Sovereignty over the common space 
 or to fix together a line of demarcation. 
 
 § 184. Mr. Dudley Field, on the other hand, in 
 his Draft Outlines of an International Code, says: 
 " The Umits of national territory bounded by a river 
 or other stream, or by a strait, sound, or arm of the 
 sea, the other shore of which is the territory of 
 another Nation, extend outward to a point equi- 
 distant from the territory of the Nation occupying the 
 opposite shore, or if there be a stream or navigable 
 channel, to the thread of the stream, that is to say, 
 to the mid-channel, or if there be several channels, 
 to the middle of the principal one." The rule of the 
 medium Jilum seems to recommend itself by its 
 equity, whilst it satisfies the requirements of re- 
 ciprocity, and a recent work on International Law 
 from the pen of Professor F. de Martens of the 
 University of St. Petersburg, states the general law 
 on the subject of narrow Straits of the Sea in terms 
 which accord with the rule which we have above 
 stated. " Si un ddtroit se trouve sous la portee de 
 canon d'un seul Etat, il est consider^ comme depend- 
 ant de ce dernier et comme faisant partie de ses pos- 
 sessions territoriales. Si un d^troit sdpare deux i^tats 
 
 ^ Le Droit International Co- 3™e Edition. Paris, Guillaumin 
 difi6 par M. Bluntschli, traduit et C'e. 
 de TAlIeraand par M. G. Lardy. 
 
300 EIGHT OF THE SEA. 
 
 et n'a plus de 6 milles Anglais de large, on adopte 
 comme frontiere une ligne trac^e au milieu des eaux." 
 Such also seems to be the view adopted by M. Perels, 
 Counsellor of the Admiralty of the German Empire, 
 in his recent work on the International Public Sea 
 Eight of the present day, when he says : "As far as 
 there is no limitation of the rights or obligations 
 of either nation founded on Usage or Convention, 
 the middle line of the water, in the case of bays or 
 straits, after the analogy of rivers, has to be taken 
 to be the limit of the sovereignty of each ^*." " Eine 
 solche kommt namentlich bei Meerengen und Fluss- 
 miindungen in Betracht. Man wird, so weit nicht 
 observanzmassig oder conventionell eine Begrenzung 
 der Eechte und Pflichten feststeht, analog wie bei 
 der Flussgrenze, die Mittellinie des Gewassers als die 
 Grenze der Souveranetat anzusehen haben ^^." 
 Eight of 6 iSi^. The rie^ht of fishins: in the open Sea or main 
 
 fishery on _, ^ ^ , n at , • , i 
 
 the High Oceau IS commou to all JNations, on the same prm- 
 ciple which sanctions the common right of navigation, 
 namely, that he who fishes in the open Sea does no 
 injury to any one, and the products of the Sea are in 
 this respect inexhaustible and sufficient for all. It is 
 possible indeed that one Nation may possess an ex- 
 clusive right of navigation and fishing against an- 
 other Nation, by virtue of treaty-engagements, as it 
 is competent for a Nation to renounce a portion of its 
 rights ; and there have been instances of such renun- 
 ciations both in ancient and modern times. Thus by 
 the Treaty of Vienna, (i6 March, 1731,) the House 
 
 ^' Traite de Droit Interna- "^ Das Internationale Offent- 
 
 tional par P. de Martens, Pro- liche Seerecht der Gegenwart 
 
 fesseur h rUniversit6 de Saint von F. Perels, Geh. Admirali- 
 
 P^tersbourg, traduit du Kusse tats-Eath und vortragender Rath 
 
 par Alfred L 60. Paris, 1883, p. in derKaiserl.Admiralitat. Ber- 
 
 506. lin, 1882, p. 42. 
 
 Seas. 
 
EIGHT OF THE SEA. 301 
 
 of Austria renounced in favour of the British and the 
 Dutch the right of her subjects to send ships from 
 the ports of the Low Countries to the East Indies. 
 So by a Treaty concluded (anno 1 500) between Henry 
 
 VII of England and John II of Denmark, and by 
 another treaty (anno 1523) concluded between Henry 
 
 VIII of England and Christian II of Denmark, it 
 was agreed that the merchants and fishermen of Eng- 
 land should fish and traffic upon the Northern Sea 
 betwixt Norway and Iceland, under the condition of 
 first asking leave and renewing their Licences every 
 seven years (de septenrrio in septennium) from the 
 Kings of Denmark and their Successors. At a later 
 p,eriod the Dutch appear to have admitted the exclu- 
 sive right of the British to the fisheries in the North 
 Sea, by making payment and taking out licences to 
 fish, which payment and licences were afterwards 
 suspended by Treaties between England and the 
 Burgundian Princes. "All this," writes Grotius^", 
 after citing various instances of treaties from ancient 
 history, " does not prove that those who thus limited 
 the navigation of any other people had taken posses- 
 sion of the sea, or of the right to sail there. For 
 Nations as well as private persons may give up not 
 only that right, which is properly their own, but that 
 also which they have in common with all mankind, 
 in favour of him, for whose interest it is made." 
 Treaties of this order have now fallen entirely into 
 disuse. 
 
 § 186. The Neutralization of portions of the Sea, NeutraUty 
 that is, the exclusion of Foreign Nations from thetion"ai° 
 use of its waters for belligerent purposes, does not ^**^"- 
 conflict with those considerations of Natural Eight, 
 which forbid the exclusion of Foreign Nations from 
 »» L. II. c. 3. § 4. 
 
302 RIGHT OF THE SEA. 
 
 the peaceful use of its waters. It may be regarded 
 as an established rule of Public Law, that a Nation 
 may prohibit all acts of hostility on the part of other 
 belligerent Nations within the limits of its Maritime 
 Jurisdiction, including the open Sea along all its 
 coasts within the distance of a marine league. The 
 same privilege is enjoyed in respect of Bays or Sea- 
 Chambers ^^, that is, portions of the Sea cut off by 
 lines drawn from one headland to another. The 
 claim of Neutrality, however, cannot be rnaintained 
 to the extent of prohibiting the armed vessels of a 
 belligerent Power from passing over waters, claimed 
 as neutral waters, with a view to an ulterior act of 
 warfare against the Enemy. The act of passing in; 
 offensively over such portions of water without any 
 violence committed therein is not considered as any 
 violation of Neutral privileges ; such waters are re- 
 garded in times of war, equally as of peace, as the 
 common thoroughfare of Nations, and no permission 
 is required for liberty to pass through them ; al- 
 though they are privileged so far, that no actual acts 
 of hostility may be committed within them. In cer- 
 tain cases the privilege of Neutrality seems to extend 
 over portions of the Sea, which are not within the 
 ordinary limits of the maritime jurisdiction of a 
 Nation ; as for instance, over arms of the Sea, and 
 over broad Straits, such, for example, as the Strait 
 which separates Ireland from Great Britain, common- 
 ly called St. George's Channel ^^. But this question 
 belongs more properly to the Rights of Nations in 
 time of War, and will be considered more fully in a 
 
 *' Life of Sir Leoline Jenkins, Ship Grange, 14 May, anno 1 793, 
 
 T. II. p. 727, 728, 780. Opinion T. I. p. 15. Waite's American 
 
 of the Attorney-General of the State Papers, T. I. p. 73. 
 United States on the case of the °^ Martens, Precis, § 42. 
 
RIGHT OF THE SEA. 303 
 
 subsequent part of this work. Bynkershoek makes 
 one exception to the violation of Neutral Waters, and 
 supposes that if an eftemy should be attacked upon 
 the High Sea, and should take refuge within the 
 jurisdictional waters of a Neutral Nation, the victor 
 may pursue his vanquished foe dum fervet opus, and 
 seize his prize within the jurisdiction of the Neutral 
 State. Casaregis and some other foreign jurists 
 maintain a similar doctrine ; but Valin, Em6rigon, 
 Vattel, Azuni, and others are of an opposite opinion, 
 and hold that when the flying enemy has entered the 
 privileged limits of the Neutral Jurisdiction, he is 
 under the safeguard of the Neutral Power. Lord 
 Stowell^^ seems to consider thatBynkershoek's opinion 
 is given with many qualifications, and expressly as an 
 opinion which he did not find to have been adopted 
 by any other writer, and Mr. Chancellor Kent^* re- 
 gards Bynkershoek's opinion as rested by him entirely 
 on the authority and practice of the Dutch, and not 
 confirmed either by the writings of Publicists or by 
 the Usage of Nations. He holds, accordingly, that the 
 opposite doctrine rests upon sounder views. In this 
 equally as in any other case, a positive act of warfare 
 would be in strict Law a violation of the privilege of 
 the Neutral Power, which is entitled to protect all 
 persons and property within its Maritime Jurisdiction. 
 It is the privilege however of the Neutral Power alone 
 to insist on the restoration of property captured with- 
 in its Jurisdiction, and if there should have been ex- 
 treme bad faith on the part of the worsted belligerent, 
 as, for instance, if he should have lain in wait within 
 the shelter of Neutral waters with a view to sally out 
 suddenly, and take his adversary at a disadvantage, 
 
 " The Anna, 5 Eobinson, p. " Commentaries on American 
 385. Law, Tom. I. § 120. 
 
30 d RIGHT or THE SEA. 
 
 with the intention, if he should be worsted, to take 
 refuge again within the Neutral waters, the Neutral 
 Power may with reason decliiie to extend its shield 
 over the vanquished, if the enemy whom he has 
 attacked should pursue him dum fervet opus, and 
 capture him within the Maritime Jurisdiction of the 
 Neutral Power. It is sometimes a matter of treaty- 
 engagement^® between two Nations, that neither 
 shall permit the ships or goods belonging to the 
 citizens or subjects of the other to be captured within 
 cannon shot of their coast, or in any of the bays, 
 ports, or rivers of their territory by the ships of war 
 of a third Power. 
 Bight of § 187, It is not contrary to the Law of Nature or 
 ToiS- tta* of Nations, writes Grotius ^e, that those who shall 
 spect of take upon them the burden and charge of securing 
 houses and and assisting Navigation, either by erecting or main- 
 Sea-marks. ^a,ining Lighthouscs, or by affixing Sea-marks to give 
 notice of Kocks and Shoals, should impose a reason- 
 able tax on all who sail that way. Martens classes 
 this right amongst the Jura Utoris. Azimi ^' con- 
 siders that the Maritime Powers have a right to im- 
 pose contributions upon all vessels, which are navi- 
 gated within the limits of their Maritime Jurisdiction, 
 to defray the expenses which are necessary to secure 
 the safety or convenience of navigation. Accordingly 
 if fire-beacons are kept alight on shore or afloat dur- 
 ing the night, and buoys are placed upon the shoals 
 to indicate the deep and shallow water passages, and 
 skilful mariners acquainted with the dangers of the 
 navigation are kept ready to act as pilots at the call 
 
 »= Treaty between Great Bri- • '» L. II. ch. III. § 14. 
 
 tain and the United States, (anno " Droit Maritime de I'Europe, 
 
 1794,) Art. 25. Martens, Ee- L. IV. cli. IV. § 153. 
 cueil, V. p. 684. 
 
BIGHT OF THE SEA. 305 
 
 of foreign vessels, and to conduct them safely along 
 the coasts of a Nation ; it is not contrary to the Law 
 of Nature or of Nations that foreign vessels availing 
 themselves of these aids to navigation, should be re- 
 quired to contribute to the expenses of maintaining 
 them. Baldus ®* holds Sea-toUs to be most equitable 
 in their nature, when they are levied to promote the 
 security of navigation : " Vectigalia Maritima sunt 
 sequissima, quoniam ad tuitionem maris et veram in 
 eo securitatem praestandam constituta reperiuntur." 
 Every vessel, which casts anchor within the jurisdic- 
 tional waters of a Nation, becomes liable to the juris- 
 diction of that Nation in regard to all reasonable dues 
 levied for the maintenance of the general safety of 
 navigation along its coasts ^^ If a vessel merely passes 
 along the coasts of a Nation without casting anchor 
 withia the limits of a marine league, or without entering 
 any port or harbour, it is not subject to the payment 
 of any territorial dues. The Eight of Passage over aU 
 portions of the open Sea is one of the Natural Rights 
 of Nations. It can only be made subject to condi- 
 tions by established Custom, which impHes an imme- 
 morial acquiescence on the part of all Nations. 
 
 § 1 88. The Right which a Nation has to levy con- Prescrjp- 
 tributions upon all ships which come withia its Mari- of'seafoii. 
 time Jurisdiction towards the maintenance of Light- 
 houses, Beacons, and other accessories to the safety 
 of navigation, must not be confounded with a right 
 which a nation may possess by Prescription to levy 
 toU upon passing vessels *". The Sound Dues for- The Sound 
 merly levied by Denmark upon all vessels passing ^' 
 
 '* Baldus, Tit. de rer. div. time levied a toll, under the 
 col. 2. name of Villefranche, on all ves- 
 
 '' Azuni, Droit Maritime, ch. sels passing within eighteen miles 
 II. Art. IV. p. 288. distance from the port of Nice. 
 
 " The Dukes of Savoy at one Azuni, T. I. p. 281. 
 
 PAKT I. X 
 
306 RIGHT OF THE SEA. 
 
 through the Sound and the Two Belts rested upon 
 an immemorial prescription. The actual origin of 
 these Dues is lost in the obscurity of a remote anti- 
 quity, and it must remain undetermined whether the 
 Northmen, who were masters of the narrow Straits 
 leading from the North Sea into the Baltic Sea, levied 
 toll arbitrarily upon all passing vessels, as a consider- 
 ation for permission to pass through the Straits un- 
 molested, or as a compensation for expenses incurred 
 by them in securing the safe navigation of the Baltic 
 Sea by keeping it clear of pirates, and by maintain- 
 ing Lights and Sea-marks to indicate the navigable 
 channels. It is unquestionable, however, that, at the 
 period when a system of Public Law began to regu- 
 late the intercourse of Nations, the claim to levy a 
 toll upon a narrow Sea-passage, like the Sound and 
 the Belts, was in strict conformity with the prevailing 
 ideas as to the Right of Empire, which a Nation 
 might exercise over straits of the Sea, the passage of 
 which it could effectively control. Vattel *^ for in- 
 stance, places the right of Denmark to levy customs 
 on the passage of the Sound on the same foundation 
 with the right of a Nation to establish tolls upon land 
 or upon a river. Whatever may have been the origin 
 of the Sound Dues, the absolute Eight of Denmark to 
 the control of the Sea-passages into the Baltic was 
 acknowledged by the Hanse Towns in a treaty as early 
 as 1368, and by England as early as 1490; and the 
 payment of tolls on the passage of the Sound was 
 recognised as in previous use (wie vor alters her), in 
 a treaty concluded at Spires, anno 1 544, between the 
 Emperor Charles V and King Christian III of Den- 
 mark*^. This treaty regulated the amount of the 
 
 " Droit des Gens, L. I. § 291. 
 
 " Schmauss, Corp. Jur. Gentium I. p. 258. 
 
EIGHT OP THE SEA. 307 
 
 tolls, and formed a precedent for similar treaties be- 
 tween Denmark and other Nations *^ This Eight 
 has accordingly been rested by Danish Jurists on im- 
 memorial Prescription, sanctioned by the concurrent 
 evidence of a long series of Treaties recognising the 
 existence of these tolls "as of olden time," and stipu- 
 lating only as to the amount and mode of levying 
 them. 
 
 The Soimd Dues may henceforth be regarded as 
 matters of history, rather than of practical interest, 
 except as illustrating an Exceptional Eight, which may 
 have been in conformity with the General Law at the 
 time of its origin, but which in modern times rested 
 upon a very special foundation. The tolls were levied 
 upon the tonnage of the ships and also upon the 
 value of the goods laden on board, and the incon- 
 venience to modern commerce, resulting from mer- 
 chant vessels being obliged to bring up either at 
 Elsinore if they passed through the Sound, or at 
 Wyborg if they passed through the Great Belt, was 
 found to be so great, that the maritime Nations of 
 Europe ** have entered into a Convention with Den- 
 mark to redeem the tolls for ever ; iu other words, 
 to purchase for their own vessels the freedom of the 
 navigation of the Sound and the Belts ; and the 
 United States of America, which had for a short time 
 disputed the Prescriptive Right of Denmark as against 
 a State of the New World, has followed the example 
 of the European Powers, and has entered into similar 
 Treaty-engagements with Denmark in behalf of Ame- 
 rican vessels **. 
 
 *' The treaty of 1645 is in XVI. pt. IT. p. 345- 
 Sohmauss, I. p. 536. *° Treaty of Washington, April 
 
 "TreatyofCopenhagen,March 11, 1857. 
 14, 1857. Martens, N, K. Gin. 
 
 X 2 
 
308 EIGHT OF THE SEA. 
 
 The Straits § 1 89. The exclusive Eight which the Ottoman Porte 
 theMedi- exercises over the Straits and the intermediate sea 
 Ind^r" which connect the Mediterranean with the Black Sea, 
 Black Sea. rests upon a Prescription which has obtained the for- 
 mal sanction of the Great Powers of Europe, under 
 Conventions concluded between them and the Porte. 
 The Eight of the Porte had a lawful origin at the 
 time when the shores of the Black Sea were in the 
 exclusive possession of the Ottomans, but after Eussia 
 had made large territorial acquisitions on its shores, 
 the latter Power, under the Common Law of European 
 Nations, had a right to navigate the waters of the 
 Black Sea, and to pass outwards with trading vessels 
 into the Mediterranean. But the Ottoman Porte did 
 not at that time acknowledge any Public Law in 
 common with the Christian Powers of Europe, and 
 the latter Powers had not the right, if they had pos- 
 sessed the might, to impose their system of law upon 
 the Ottoman Nation. Accordingly as the Ottomans 
 regarded no other law as binding upon them with 
 regard to Christian Nations, than the express stipu- 
 lations of treaties, the free navigation of the Straits 
 was secured to the merchant vessels of Christian 
 Nations by express Conventions on the part of the 
 Porte, with Eussia in 1774, with Austria in 1784, 
 with Great Britain in 1799, with France in 1802, 
 with Prussia in 1806. The Porte has meanwhile 
 kept the Straits closed against the war-ships of all 
 Nations during the time when it has itself remained 
 at peace with all Nations, and this practice of the 
 Porte obtained a formal sanction, as an ancient rule 
 of the Ottoman Empire, from the Great European 
 Powers with the exception of France, in the Treaty 
 concluded in London, July 13, 1841**. It was sub- 
 " Martens, N. R. Gto. II. p. 128. 
 
RIGHT OF THE SEA. 309 
 
 sequently confirmed more formally as part of the Public 
 Law of Europe by a Special Convention, annexed to 
 the Treaty of Peace concluded at Paris, March 30, 
 1856*1 By a still later Treaty (Treaty of London, 
 March 13, 1871)*' the ancient rule of the Porte is 
 maintained in force, but the Sultan has reserved to 
 himself the faculty of opening the Straits in time of 
 peace to the war- vessels of friendly and allied Powers 
 in case the Sublime Porte may judge it to be necessary 
 in order to secure the execution of the Stipulations 
 of the Treaty of Paris of March 30, 1856. 
 
 § I go. There is a certain class of cases which seem The Co- 
 at first sight to conflict with the position that a geo- Nations in 
 graphical league seawards along its coasts is the limit ^evenue"^ 
 of the maritime jurisdiction of a Nation, and that be- and Qua- 
 yond that distance its Civil Law is in operation only 
 over its own National vessels. Thus the Statute Law 
 of Great Britain (9 Geo. II. c. 35 and 24 Geo. III. 
 c. 47), sometimes described as the Hovering Acts, 
 authorises the National cruizers to seize all merchant 
 vessels, which are found with certain cargoes on board 
 destined for Ports of Great Britain, if they are found 
 within the distance of four leagues from the Coast, 
 and vessels so seized have been brought for adjudica- 
 tion before the tribunals of the seizors, and have 
 been declared forfeited for an attempt at illicit trade. 
 So, again, by 26 Geo, II. all vessels coming from 
 places whence the plague might be brought, and as 
 such liable to Quarantine, were required to make 
 signals on meeting other ships within four leagues*^ 
 of the United Kingdom under a penalty of 200I. 
 
 " Martens, N. K. G6n. T, XV. to British Quarantine Eegula- 
 
 p. 782. tions, is fixed at two leagues from 
 
 *' Id. XVIII. p. 303. the British Coasts by 6 Geo. IV. 
 
 " The distance, within which c. 78. 
 vessels are regarded as amenable 
 
310 EIGHT OF THE SEA. 
 
 In a similar manner the Acts of Congress of the 
 United States of North America, such as the Collection 
 Act of 1799 and the Act of 1807 against the impor- 
 tation of slaves, authorised the seizure of vessels laden 
 with certain cargoes within four leagues of theAmerican 
 Coasts. The regulations of Portugal and of Spain, ex- 
 cluding the commercial intercourse of foreigners with 
 their respective Colonies, were of an analogous charac- 
 ter. Such laws and regulations, however, have no 
 foundation of strict Bight against other Nations. Lord 
 Stowell, in the well-known case of the Louis^", alludes 
 to an instance of this kind in the case of a Swedish 
 Ordinance authorising Swedish cruizers to examine 
 foreign vessels on the high seas bound to Swedish 
 Ports, which however was resisted by the British 
 Government as unlawful, and the claim was finally 
 withdrawn by the Swedes. In a similar manner Great 
 Britain complained of the right claimed by Spain to 
 search British vessels on the High Seas, which was 
 carried so far that the Spanish guardaeostas seized 
 vessels not in the neighbourhood of their coasts. This 
 practice was the subject of long and fruitless negocia- 
 tions, and led at length to open war. Great Britain, 
 however, did not contend that British vessels actually 
 engaged in illicit trade were entitled to pass unmo- 
 lested by the revenue cruizers of Spain until they 
 came within the maritime jurisdiction of that country, 
 but she maintained that Spain enforced her right of 
 search for the protection of her commerce with her 
 Colonies in an unreasonable and vexatious manner. 
 Mr. Justice Story ^^ has properly pointed out that the 
 State which authorises her cruizers to efiect such 
 seizures beyond the limits of her Maritime Jurisdic- 
 
 '" 2 Dodson, p. 246. 'Wheaton, p. 40. Church v. Hub- 
 
 "' The Mariana Flora, XI bard, 2 Cranch, p. 235. 
 
RIGHT OF THE SEA. 311 
 
 tion, incurs a responsibility towards Foreign Powers. 
 It is only under the Comity of Naiions^^ in matters of 
 Trade and Health, that a State can venture to enforce 
 any portion of her Civil Law against foreign vessels, 
 which have not as yet come within the limits of her 
 Maritime Jurisdiction. A State exercises in matters 
 of Trade for the protection of her Maritime Revenue, 
 and in matters of Health for the protection of the 
 lives of her people, a Permissive Jurisdiction, the ex- 
 tent of which does not appear to • be limited within 
 any certain marked boundaries, further than that it 
 cannot be exercised within the Jurisdictional waters 
 of any other State, and that it can only be exercised 
 over her own vessels and over such foreign vessels as 
 are bound to her ports ^*. If, indeed, the Revenue 
 Laws or the Quarantine Regulations of a State should 
 be such as to vex and harass unnecessarily foreign 
 commerce, foreign Nations wiU resist their exercise. 
 If, on the other hand, they are reasonable and neces- 
 sary, they wiU be deferred to oh reciprocam utilita- 
 terfi. In ordinary cases indeed, when a merchant 
 ship has been seized on the open seas by the cruizer 
 of a Foreign Power, when such ship was approaching 
 the coasts of that Power with an intention to carry 
 on illicit trade, the Nation, whose mercantile flag has 
 been violated by the seizure, waives in practice its 
 right to redress, those in charge of the offending ship 
 being considered to have acted with mala Jides and 
 consequently to have forfeited all just claim to the 
 protection of their Nation. 
 
 f 191. The Right of Fishery comes under different night of 
 considerations of Law from the Right of Navigation, in j^^ 
 as the Right of Fishery in the open sea within certain wtte^ 
 
 "'^Kent's Commentaries, Tit. I. =' The Apollo, 9 "Wheaton, 
 § 31- P- 371- 
 
312 RIGHT OF THE SEA. 
 
 limits may be the exclusive Right of a Nation. The 
 usus of all parts of the open sea in respect of naviga- 
 tion is common to all Nations, but the fructus is dis- 
 tinguishable in law from the usus, and in respect of 
 fish, or zoophites, or fossil substances, may belong in 
 certain parts exclusively to an individual Nation. 
 The Practice of Nations has sanctioned the exclusive 
 Right of every Nation to the fisheries in the waters 
 adjacent to its coasts within the limits of its Mari- 
 time Jurisdiction^*, and accordingly we find that a 
 permission for the subjects of one Nation to fish 
 within the Jurisdictional waters of another Nation is a 
 frequent subject of Treaty-engagement. " The various 
 uses of the sea," writes VatteP^, "near the coasts 
 render it very susceptible of property. It furnishes 
 fish, shells, pearls, amber, &c. Now in all these 
 respects its use is not inexhaustible ; wherefore the 
 Nation, to which the coasts belong, may appropriate 
 to itself an advantage which Nature has so placed 
 within its reach, as to enable it conveniently to make 
 itself master of it and to turn it to profit, in the same 
 manner as it has been able to occupy the dominion of 
 the land which it inhabits. Who can doubt that the 
 pearl fisheries of Bahrem and Ceylon may lawfully 
 become property? and though where the catching of 
 (swimming) fish is the object, the fishery appears less 
 liable to be exhausted, yet, if a Nation has on its 
 coast a particular fishery of a profitable nature, and of 
 which it may render itself master, shall it not be per- 
 mitted to appropriate to itself that Natural benefit, as 
 an appendage to the country which it possesses, and 
 to reserve to itself the great advantages which it may 
 derive by commerce, in case there be a sufficient 
 
 °* Wheaton's Elements, Part II. c. 4, § 5. Azuni, Tom. I. c. 11. 
 Art. 8, " Droit des Gens, L. I. § 287. 
 
EIGHT OF THE SEA. 313 
 
 abundance of fish to enable it to fumisb the neigh- 
 bouring Nations with a supply 1 But, if so far from 
 making itself master of a fishery, a Nation has once 
 acknowledged the common right of other Nations to 
 come and fish there, it can no longer exclude them 
 from it ; it has left that fishery in its primitive state 
 of communion, at least with respect to those who 
 have been accustomed to take advantage of it." 
 Treaty-engagements in such matters do not give any 
 other right than that which is .expressed in the specific 
 terms, although there may be found in the recitals 
 of certain Treaties recognitions of Rights founded on 
 grounds independent of all Treaties. Thus there are 
 early Treaties between France and England, under 
 which it was agreed that the Subjects of either Crown 
 might fish anywhere in the seas, which separate the 
 two kingdoms, during certain seasons of the year. 
 The legitimate inference, deducible fi-om the fact that 
 such fishery was made a matter of Treaty-engagement, 
 is, that at other seasons of the year the Subjects of the 
 two Crowns had not a common right of fishing every- 
 where in those seas. The existing Treaty-engage- convention 
 ments between Great Britain and France proceed ^^^"^^2^- 
 upon another view of mutual convenience, namely, '=■*" »"<! 
 that it is desirable to define the limits within which 
 the general right of fishing upon all parts of the 
 coasts of either Nation shall be exclusively reserved 
 to its own Subjects. The Convention of Paris (2 Aug. 
 1839*^) has accordingly provided that the Subjects of 
 either State shall enjoy an exclusive right of fishery 
 within a distance of three miles from low water-mark 
 along the whole extent of its coasts. There is one 
 peculiar provision in this Convention, which deserves 
 
 ^ Martens, N. E. XVI. p. 954. British and Foreign State Papers, 
 vol. xxvii. p. 983 
 
314 RIGHT OF THE SEA. 
 
 notice. By the Ninth Article it is stated to be the 
 understanding of both parties that the distance of 
 three miles, limiting the exclusive right of fishery 
 upon the coasts of the two countries, shall be mea- 
 sured in the case of bays, of which the opening shall 
 not exceed ten miles, from a straight line drawn across 
 from one Cape to another^'. 
 Agreement ^ 1 92. It appears from a notice issued by the 
 BrHiah"and British Board of Trade of the date of December 
 Go™m- 1874^^5 *^** ■t'le British Government came to an 
 ments. agreement with the North German Government 
 in 1868 respecting Eegulations to be observed by 
 British fishermen fishing ofi" the Coasts of the 
 North German Confederation, and subsequently to 
 a further agreement in 1874 with the German 
 Government respecting Regulations to be observed 
 by British fishermen fishing off the Coasts of the 
 German Empire, and thereupon issued a notice for 
 the guidance and warning of British fishermen. 
 This notice implies a recognition upon the part 
 of the British Government of the same principles 
 of exclusive right to be enjoyed by German fisher- 
 men fishing off the North Sea Coast of the German 
 Empire, as it has recognised under the Convention 
 of Paris (August 2, 1839) in the case of French 
 fishermen fishing off the Coast of France, and as 
 it has maintained in the same Convention on behalf 
 of British fishermen fishing off the British Coast. 
 The notice is of the following tenor: — 
 
 I. The exclusive fishing limits of the German 
 Empire are designated by the Imperial Government 
 
 " This Treaty, although oper- Hertslet's Treaties, vol. XIV. p. 
 
 alive in British waters, is not izoo. 
 
 operative in French waters, not '° Hertslet's Treaties, vol. XIV. 
 
 having been sanctioned by the p. 1057. 
 French Legislative Chambers. 
 
BIGHT OF THE SEA. 315 
 
 as follows : — That tract of the Sea which extends to 
 a distance of three sea-miles from the extremest 
 limit, which the ebb leaves dry of the German 
 North Sea Coast, of the German islands or flats 
 lying before it, as well as those bays or incurvations 
 of the Coast which are ten sea-miles or less in 
 breadth, reckoned from the extremest points of the 
 land and the flats, must be considered as under the 
 territorial sovereignty of the German Empire. 
 
 II. The exclusive right of fishery within the 
 above limits is accordingly to be enjoyed by fisher- 
 men of German nationality only, and English fishing 
 boats are not at liberty to enter those limits, except 
 under the following circumstances, namely : — 
 
 (i) When driven by stress of weather, or by 
 evident danger. 
 
 (2) When carried in by contrary winds, by strong 
 tides, or by any other cause beyond the control of 
 the master and crew. 
 
 (3) When obliged by contrary winds or tides 
 to beat up in order to reach their fishing grounds, 
 and when from the same cause of contrary wind 
 or tide, they could not, if they remained outside, 
 be able to hold on their course to their fishery 
 ground. 
 
 (4) When, during the herring fishing season, 
 English fishing boats shall find it necessary to 
 anchor under shelter of the German Coasts, in 
 order to await the opportunity for proceeding to 
 their fishing ground. 
 
 (5) When proceeding directly to any port of 
 the German Empire, open to Englishmen for the 
 sale of fish, where the .cargo is to be sold. 
 
 III, Fishing boats not of German nationality, 
 which pass within the limits above mentioned with- 
 
316 RIGHT OF THE SEA. 
 
 out being compelled to do so by any of tlie cir- 
 cumstances above mentioned, and not being on their 
 direct way to a port for the sale of fish, will be 
 liable to be turned back ; and in the event of their 
 resisting, or in the event of their being found fishing 
 within the limits above described, will be arrested 
 and proceeded against before the nearest competent 
 authority. 
 Ceremonial § 1 93. The High Scas being the common highway 
 SeLf '^ of Nations, all Nations meet thereon on terms of 
 equality. The Usage of Nations has accordingly 
 estabhshed a Ceremonial of the Sea to be observed 
 between the public vessels of different Nations, and 
 between public and private vessels respectively which 
 meet upon the High Seas'^. 
 
 The question of Maritime Ceremonial, as regards 
 the High Seas, was at one time considered not to 
 involve considerations of courtesy merely as between 
 Nation and Nation, but to imply a recognition of 
 superiority and an acknowledgment of inferiority, as 
 the case might be, on the one side or on the other, 
 and disputes on this head have frequently given oc- 
 casion to war «". Nations, for instance, have claimed 
 Eights of Sovereignty over considerable portions of 
 the open Sea, and have insisted upon the public ves- 
 sels of other Nations lowering their flag when sailing 
 in those seas ; or they have asserted a general Mari- 
 time supremacy, and insisted upon the public vessels 
 of other Nations striking their flag to their armed 
 ships, whenever they should meet them upon the 
 High Seas. All these pretensions are now matters of 
 
 ^' Kliiber, § 127. Martens, *" Ortolan, Diplomatie de la 
 
 Precis, § 158. Bynkershoek de Mer, L. II. c. 15. Declara- 
 
 Dominio Maris, c. i. and 4. tion of war by England against 
 
 Wheaton's Elements, Pt. II. c. 3. Holland, in 1652, and again in 
 
 §7. 1671. 
 
EIGHT OF THE SEA. 317 
 
 History, and as far as salutes between the vessels of 
 different Nations on the High Seas are concerned, 
 whether those salutes consist in striking the flag, 
 (salut de pavilion,) or in lowering the sails, (salut des 
 voiles,) or in firing a certain number of guns, (salut 
 du canon,) the Ceremonial is essentially a matter of 
 courtesy. The Ceremonial as between pubHc vessels is 
 now confined entirely to a salute of guns. It is volun- 
 tary on either side, and it proceeds altogether upon a 
 calculation of equality, as between Nations. All Inter- 
 national salutes are therefore in strict practice to be 
 returned gun for gun. In some cases this is matter 
 of direct Convention between Nations ; in other cases 
 it is matter of courteous understanding between the 
 commanders of the respective vessels ; and Nations 
 for the most part allow the commanders of their 
 public vessels to reciprocate the special compliment- 
 ary salutes, which the rules of their own service au- 
 thorise in the case of one ship of war meeting another 
 ship of war bearing the flag of an officer of superior 
 rank. Thus a British ®' ship of war, bearing the broad 
 pendant of a Commodore, on meeting a French ship 
 of war bearing an Admiral's Flag, may salute the 
 French Admiral personally with the same number of 
 guns to which a British Officer of corresponding rank 
 would be entitled. It is understood, however, that 
 the saluting vessel in such a case will receive a salute 
 of gun for gun in return. A French vessel, on the 
 other hand, is authorised to return the salute of a 
 foreign vessel gun for gun, whatever may be the rank 
 of the respective commanders of the two vessels, pro- 
 vided that the salute does not exceed twenty-one 
 guns, which is the number of guns, as generally un- 
 
 " British Kegulations relating to Salutes. 
 
318 EIGHT OF THE SEA. 
 
 derstood, for a Royal Salute ^^. The practice of most 
 Nations is to salute with an uneven number of guns ^^ 
 but the regulations as to the number of guns to be 
 fired on each occasion varies with the pleasure of each 
 Nation. The following rules are general **. A single 
 ship of war by usage salutes a fleet or squadron, and 
 an auxiliary squadron salutes the principal fleet. A 
 vessel carrying a Captain's flag, salutes a vessel carry- 
 ing a Commodore's broad pendant ; and the latter in 
 turn salutes the flagship of an Admiral. With re- 
 gard to merchant vessels, the practice which prevailed 
 in former days for them to salute the public ships of 
 all Nations, has fallen into desuetude. It was a prac- 
 tice grounded originally on the fact, that the public 
 ships of all Nations keep sentinel over the safe navi- 
 gation of the High Seas, and in discharge of such duty 
 are entitled to ascertain the character of all vessels 
 navigating thereupon. Merchant vessels were accord- 
 ingly boimd to strike their flag, and lower their top- 
 sails to every vessel of war which they met. As a 
 matter of courtesy in modern times, merchant vessels 
 for the most part salute the public vessels of other 
 Nations by lowering and rehoisting their flag three 
 times. Ships of war, indeed, are so far entitled to 
 
 "^ Ordonnance du Eoi du i Man of War being saluted by a 
 
 Juillet, 1 83 1. foreign vessel, answers the salute 
 
 '^ It is stated by Maii;ens, with the same number of guns. 
 § 1 58, who is followed by Klii- 2. No salute must exceed twenty- 
 ber,§ 118, and several other pub- one guns, even in answering a 
 lioists, "that Sweden is an ex- salute. 3. In foreign harbours 
 ception to the rule of odd num- it is left to the discretion of the 
 bers, and that her vessels of war Commanders to follow the rules 
 always salute with an even num- of other Nations. 4. The sa- 
 ber of guns." The following are lutes in the Swedish Navy vary 
 the regulations of the Swedish from five, seven, nine, &c., to 
 Navy, in the matter of naval twenty-one. 
 salutes, published at Christiana, ** Martens, Precis, § 1 60. Kltt- 
 May 28, 1858. I. A Swedish ber, § 122. 
 
RIGHT OP THE SEA. 319 
 
 maintain guard over the safe navigation of the high 
 seas, that the'y may rightfully compel a vessel, which 
 does not exhibit any flag, to announce her National 
 character by hoisting her colours, and for this purpose 
 they are accustomed to fire a gun with blank car- 
 tridge as a signal to the merchant vessel to hoist her 
 colours ; if she neglects the notice, they may fire a 
 shotted gun across her bows, and if after that warn- 
 ing she declines to hoist her colours, a ship of war 
 may treat her as a vessel of no certain Nationality, 
 and may compel her to bring to. 
 
 The regulations with respect to salutes to be ren- 
 dered by merchant vessels to ships of war of their 
 own Nation, are matters of Municipal regulation, as 
 well as those which relate to the special flag, which 
 merchant vessels are entitled to carry; but it is an 
 ofience by the Laws of the Sea for any private ship 
 to wear the flags or ensigns peculiar to the public 
 ships of its Nation, vmless it has a commission from 
 the Sovereign Power, which authorises it so to do ; 
 for the Public flag of a Nation represents the Nation 
 itself, and is privileged accordingly ; whereas the 
 Mercantile flag of a Nation has freedom of access 
 allowed to it upon implied conditions of a totally 
 different kind. 
 
 fi 194. There is an order of Maritime Ceremonial Ceremonial 
 which may be distinguished from the Ceremonial rigdictjon^ 
 observed on the High Seas, and which implies a^*'^"- 
 recognition of the Empire of a Nation over the na- 
 vigable waters within which the Ceremonial is ob- 
 served. Every Nation has by usage a right to order 
 a Ceremonial to be observed by the vessels of all 
 Nations, which come within its Maritime Jurisdic- 
 tion, in relation to its own National vessels or to the 
 vessels of other Nations ; and likewise in regard to 
 
320 EIGHT OP THE SEA. 
 
 its own fortresses or naval arsenals *^, Bynkershoek 
 rests this right upon the ground that all who enter 
 within the Maritime Jurisdiction of a State are for 
 the time subjects of that State. This may be a cor- 
 rect view of the condition of Public Law, under which 
 private vessels of commerce leave the High Seas and 
 enter the jurisdictional waters of a Foreign Power ; 
 namely, that they become subject temporarily to the 
 Territorial Law of that Power. With regard to 
 such vessels, there is no necessity for any special 
 Convention respecting matters of Maritime Ceremo- 
 nial, as between Nations ; but with regard to public 
 vessels, which represent the Nation in its character 
 of an Independent Power, the question is subject 
 to different considerations. The salute on the part 
 of a public vessel depends either upon the Usage 
 of Nations, or upon Treaty-engagements ^^. By the 
 Usage of Nations, ships of war always salute a fort- 
 ress, if they pass within the limits of the Maritime 
 Jurisdiction of the Nation to which the fortress 
 belongs : they salute in like manner the guardship 
 of a foreign port before they enter it, and the salute 
 is reciprocated with the same number of guns, which 
 tends to show that the salute is not a one-sided 
 acknowledgment of temporary subjection, but is a 
 mutual recognition of National Independence on 
 either side. Nations in former times have asserted 
 a right to exact a salute from the public ships of 
 foreign Nations navigating narrow seas, or gulfs, as 
 an acknowledgment of their having a right of Empire 
 over such seas and gulfs ". Claims of this kind have 
 
 '^ Bynkershoek, Qu. Jur. States of Europe, the Salute was 
 
 Publici, L. II. c. 21. Kliiber, matter of arrangement as to the 
 
 § 1 20. Martens, Pr6cis, § 159. number of guns. 
 
 "' In the treaties between the " Thus Great Britain once 
 
 Barbary States, and the Christian asserted a Right of Empire over 
 
RIGHT OF THE SEA. 321 
 
 given rise to long and disastrous wars, and their 
 regidation has been repeatedly the subject of nego- 
 ciations and treaties ; they have now happily every- 
 where fallen into desuetude, seeing that the Cere- 
 monial of the Salute is no longer connected with the 
 idea of the supremacy of one Nation over another, 
 
 § 195. It would appear that from a very early Origin of 
 period it was the custom for vessels of commerce cantUe and 
 navigating the High Seas to carry an ensign (insigne) ^^^ 
 or a flag (flamma) denoting the ownership of the v^s- ^lag of the 
 sel, whether that ownership was vested in an indi- 
 vidual person or in a company. The Roman Law 
 (Gains, 1. 3, ad Edictum Provinciale ®*) recognised 
 companies or guilds of shipowners (navicularii) in the 
 Provinces, and it may be inferred from the medieval 
 Statutes of the chief Maritime cities of the Medi- 
 terranean ®' and of the Baltic ■"• that the practice of 
 merchant vessels carrying the flag of a company or a 
 guild (ars) was still maintained in the thirteenth cen- 
 tury, and was only giving way under the pressure of 
 Municipal Statutes requiring them to carry the flag 
 of the city from which the vessel hailed. The cha- 
 racter of the flag to be carried by merchant vessels is 
 in like manner regulated in the present day by the 
 municipal law of the port from which each vessel 
 hails, and an international usage has grown up, 
 which gives support to the municipal law, by requir- 
 ing every merchant vessel to be furnished with a 
 Sea Letter''^ or Certificate from the authorities of the 
 
 the British Channel; Venice over *^ Statutes of Marseilles, a«> 
 
 the Adriatic Sea; Genoa over the 1253; Ancona, 1397. 
 
 Ligurian Sea ; Portugal over the ■"" Statutes of Hamburg, a" 
 
 Lusitanian Sea. Gunther, Tom. 1270; Lubeck, 1299. See Twiss' 
 
 II. § 21-35. Eights and Duties of Nations 
 
 «« Justin. Digest, 1. III. tit. IV. in Time of "War, § 90. 
 
 § I. ''In the case of British mer- 
 
 PAKT 1. Y 
 
322 RIGHT OF THE SEA. 
 
 port from which she hails, vouching her title to the 
 flag which she carries, otherwise she may risk to be 
 treated as a piratical vessel. At what time the cus- 
 tom became general for merchant vessels to carry a 
 national flag is not very clear. The practice of ves- 
 sels of war carrying a national ensign was most pro- 
 bably introduced at the time of the Crusades. Such 
 is Cleirac's opinion as expressed in a memoir '^^ ap- 
 pended to his " Us et Coutumes de la Mer," a^ 1647 ; 
 bu^ the Ordinances of the Kings of France on the 
 subject of the flag are not, as we believe, traceable 
 further back than to an Ordinance of King Charles V 
 of France of Dec. 7, 1373 '^ 
 
 According to Cleirac, the object of a National flag 
 was to classify the different bodies of troops and the 
 various fleets of ships engaged in a Crusade, and the 
 circumstance, that the national ensign of each of the 
 Monarchical States of Christendom bore the emblem 
 of a Cross,. red, white, or gold as the case might be, 
 on a field of a different colour, lends support to 
 Cleirac's view. The Red Cross was the general 
 device, which was granted by the Holy See to Princes 
 and Cities that took part in the Crusades. The Red 
 Cross on a silver field, known as St. George's Cross, 
 was specially granted to the Kings of England and 
 to the cities of Florence and of Genoa. It was also 
 the flag of Portugal and of the city of Milan. The 
 latter city retains the Red Cross, but the present 
 Portuguese national ensign is per pale, blue and 
 
 cliant ships by the Merchant chaque Nation qui met k la mer." 
 Shipping Act, 17 & 18 Vict. ''' The text of this Ordinance 
 
 ch. 106, in pursuance of a is printed in the Appendix to 
 
 Royal Proclamation of Jan. i, the Black Book of the Admiralty, 
 
 1801. Rolls Edition, vol. I. p. 443, witii 
 
 '^ " Sur les li^T^es ou couleurs its true date, from an unique 
 
 des Pavilions des Navires pour MS. in the British Museum 
 
 la connaissance et distinction de (Sloane "MS. 2423). 
 
EIGHT OF THE SEA. 323 
 
 white, and in the centre of the military flag is a red 
 shield crowned and charged with towers, etc. Eng- 
 land, on the other hand, has retained the St. George's 
 Cross both in the Union Jack '* and in her white 
 Ensign, which is now the distinctive ensign carried 
 by her vessels of war. The Royal Yacht Squadron, 
 •of which H.B.H. the Prince of Wales is Commodore, 
 has the special privilege of using the white ensign, 
 and this circumstance has led very recently to a re- 
 fusal on the part of the Ottoman Authorities at the 
 Dardanelles to allow a vessel of the Eoyal Yacht 
 Squadron to pass the batteries at the mouth of the 
 Straits, inasmuch as she exhibited an ensign usually 
 worn by British vessels of war. The yacht in ques- 
 tion was ultimately allowed to pass the Straits upon 
 the anomaly having been explained to the satisfaction 
 of the Ottoman Authorities. 
 
 It would seem that it rested with the admiral of 
 each fleet in the days of the Crusades to assign to 
 each vessel its proper ensign, and it was no longer 
 permissible to the captain or owner to assume an 
 ensign at his pleasure. The tradition has been main- 
 tained down to the present time, and the Admiralty 
 of each Nation may be regarded in the present day 
 as the administrative authority in all matters of the 
 maritime flag. It is in accordance with this practice 
 that in the recent charters granted by the Crown of 
 Great Britain to the British North Borneo Company, 
 
 '* The Union Flag was first sequent TJnion with Ireland in 
 
 adopted for British ships on the 1801 the Eed Saltire of Ireland 
 
 Union of the Crowns of England was introduced, counterchanged 
 
 and Scotland in 1603, and it with that of Scotland. The hlue 
 
 consisted of St. George's Cross, field of the Union Jack is thus 
 
 red on a white ground, combined of Scotch origin, the flag of 
 
 with the Saltire of Scotland Ireland having been a red saltire 
 
 (St. Andrew's Cross), white on on a white field, 
 a blue ground. On the sub- 
 
 Y 3 
 
324 RIGHT OF THE SEA. 
 
 there is a provision to the following effect ; " The 
 Company may hoist and use on its buildings and 
 elsewhere in Borneo and on its vessels such distinc- 
 tive flag, indicating the British character of the Com- 
 pany, as the Secretary of State and the Lords Com- 
 missioners of the Admiralty from time to time ap- 
 prove." Nevertheless, the practice of using a House- 
 flag, as it is termed, is still maintained by the owners 
 of British Merchant Ships, for the purpose of corre- 
 sponding with their agents either on shore or on the 
 High Seas. The character and the colour of the 
 House flag are at the discretion of each Shipowner, 
 provided always that it does not resemble a flag used 
 by the Ships of the State. All British Merchant 
 Ships, on the other hand, are required to carry the 
 Eed Ensign, as it is termed, being the Union Jack 
 in the hoist of a large red flag, as the national flag 
 under which they sail. The House flag takes the 
 place of the ancient flag of the port from which the 
 vessel hailed, but its use is strictly subordinated to 
 that of carrying the red ensign as the national colour. 
 Certain § 1 96. There are cases in which the right of a 
 
 titieroijy State to a flag for its merchant marine on the High 
 toaMer- ggas has bccn recognised under a General Treaty of 
 
 cantue i-n t-»i-iii m 1 
 
 Flag. the Jiiuropean rowers, whilst by the same Treaty the 
 same State has been precluded from fitting out any 
 vessel of war or using a flag of war on the High Seas. 
 Such for instance is the provision made in the Treaty 
 of Berlin of i878*with regard to the Principality of 
 Montenegro, of which the territory, formerly an 
 enclave within the Turkish dominions without any 
 outlet to the High Sea, is now placed in direct com- 
 munication with the Adriatic through the cession on 
 the part of Turkey of Antivari and all the Littoral 
 between Antivari and the Dalmatian coast. In this 
 
RIGHT OF THE SEA. 325 
 
 instance, however, under the provisions of the same 
 treaty the port of Antivari and all the Montenegrin 
 Littoral are declared to be closed against the war- 
 vessels of all Nations, whilst Austria-Hungary has 
 undertaken to maintain a maritime and sanitary 
 police within Montenegrin waters, and to accord to 
 the mercantile flag of Montenegro the protection of 
 her Consular Officers. On the other hand, under the 
 Convention of Paris of 5 Nov. 18 15, between Great 
 Britain, Austria, Eussia, and Prussia, the contracting 
 parties acknowledged the trading flag of the United 
 States of the Ionian Islands to be the flag of a free 
 and independent State, whilst all the ports and har- 
 bours of the said States were declared to be with 
 respect to honorary and military rights within British 
 jurisdiction for the more effectual furtherance of the 
 Protection of His Britannic Majesty, under which the 
 Ionian States were placed. Further, under the Con- 
 stitutional Charter of the United Ionian States c^rawn 
 up in pursuance of the Convention of 18 15, Ionian 
 Subjects were declared to be entitled in all ports 
 whatsoever to the fullest protection of British Con- 
 suls. It deserves remark that in both these cases 
 there were maritime ports, from which Ionian and 
 Montenegrin merchant vessels covld respectively be 
 set forth and whither they could return, if it should 
 be necessary for the State under whose flag they 
 sailed to exercise its jurisdiction over the captain and 
 crew in civil or criminal matters, for whilst the flag 
 gave them protection, it also imposed upon them 
 responsibility. Besides, merchant ships of olden time 
 were for the most part owned in shares, and all con- 
 troversies as to their employment and the profits of 
 each voyage had to be settled by the law of the place 
 where the part-owners were resident, and the law of 
 
326 EIGHT OF THE SEA. 
 
 the place could not well be enforced unless the vessel 
 was within the jurisdiction of its Courts. The use of 
 a mercantile flag under treaty-arrangements of the 
 kind above mentioned, although exceptional, was not 
 at variance with the principles of the common law. 
 For instance, the Free Cities of the late Germanic 
 Confederation, such as Hamburg, Bremen, and Lii- 
 beck, which possessed either riverain or maritime 
 ports, had a considerable marine under a mercantile 
 flag, but had no maritime flag of war nor any miHtary 
 marine. The same remark applies to certain northern 
 States of the same Confederation, such as Oldenburg, 
 Mechlenburg, and Hanover. 
 
 The practice in all these instances was no doubt a 
 relic of an older order of things, in which the mer- 
 chant vessels of the Cities and States in question had 
 been accustomed to regard the military flag of the 
 Eoman Emperor of the Germans as the flag of the 
 Suzerain Power, who would be ready to protect the 
 commerce of his vassals in time of war. The same 
 observation is also applicable to certain tributary 
 States of the Ottoman Empire, such for instance as 
 Samos, which has a mercantile flag in the present 
 day, and such as were the Moldo-Walachian Princi- 
 palities under the Treaty of St. Petersburg of 29 Jan. 
 1834 (supr., p. 134). Egypt also seems to have a 
 mercantile flag of her own ''^, slightly distinguished 
 
 '^ In the case of the Charkier Ottoman Navy, and was entitled 
 
 Steamship, the property of his to carry and did use and carry 
 
 Highness Ismail Pacha, Khedive the Ottoman Naval Pendant 
 
 of Egypt, against which a suit and the Ottoman Naval Ensign, 
 
 for damage was brought in the which are used by all ships of 
 
 High Court of Admiralty of the Egyptian navy, as distin- 
 
 England, it was pleaded in the guished from Egyptian merchant 
 
 Protest against the jurisdiction vessels. Law Keports, Admi- 
 
 of the Admiralty Court, that the ralty and Ecclesiastical Cases, 
 
 steamship was a ship of the vol. iv. p. 61, 
 Egyptian branch of the Imperial 
 
RIGHT OF THE SEA. 327 
 
 from the Turkish mercantile flag, but Egypt is bound 
 to hoist exclusively the military flag of Turkey on 
 her war-vessels, if she should at any time with the 
 express permission of the Sultan fit out any such 
 vessels. In aU these cases there has been a pro- 
 tecting Power or a Suzerain in reserve, whose mili- 
 tary fleet would be available for the defence of the 
 mercantile marine of the protected State or of the 
 tributary State, as the case might be, and no city or 
 State appears to have used a mercantile flag unless 
 it possessed a port in the High Seas, or on a navi- 
 gable river by which its vessels could pass to or 
 from the High Seas. 
 
 § 197. A question has been raised in the present Project of a 
 day whether a State, which has no port in the High c^tTie^*" 
 Seas nor any riverain port in direct communication -^^s- 
 with the High Seas, can rightfully authorise her 
 citizens to hoist a national flag upon vessels, of which 
 they have acquired the ownership by purchase or 
 otherwise in a foreign port. The question was raised 
 before the Federal Assembly of Switzerland in 1864 
 on the petition of certain Swiss citizens resident in 
 Trieste in concert with other Swiss citizens resident 
 in Smyrna and in Hamburgh and in St, Petersburgh, 
 who were desirous to be authorised to hoist Swiss 
 colours upon certain merchant vessels, which they 
 proposed to purchase abroad. Various difficulties at 
 once suggested themselves. The petitioners antici- 
 pated that the Swiss Flag would be respected on the 
 High Seas by all belligerent vessels as a neutral flag, 
 and that Swiss merchant vessels would be entitled 
 to circulate everywhere without being subject to any 
 restriction on the part of belligerents by reason of 
 the neutrality of Switzerland. It is hardly necessary 
 to observe that the Conventional Neutrality of the 
 
328 RIGHT 0^ THE SEA, 
 
 Helvetic Confederation is territorial, and that a Swiss 
 citizen, when he quits the territory of the Confede- 
 ration, carries with him no personal privilege of neu- 
 trality any more than a personal obligation not to 
 enter into the military service of a Belligerent Power. 
 During the recent civil war in North America a Swiss 
 citizen claimed the privilege of exporting cotton from 
 a blockaded port of the Southern States in two ves- 
 sels carrying the Swiss Flag, which he maintained to 
 be entitled to pass outwards without restriction in 
 virtue of the neutral character of the Swiss Confede- 
 ration, but the cruisers of the Union captured his 
 vessels, and the Federal Council of the Swiss Con- 
 federation declined to intervene on his behalf with 
 the Government of the United States of America 
 with a view to obtain the release of the captured 
 vessels. Another difficulty in the case of Switzerland 
 was founded on the physical condition of the territory 
 of the Confederation, that it has no sea-port, and 
 although two great Eivers of Europe have their 
 respective sources in Swiss territory, namely the 
 Ehine and the Rhone, no sea going vessels can ascend 
 by either of these rivers to a Swiss port, from which 
 it would be entitled to hail, if it were met with on 
 the High Seas by a belligerent cruizer. Two modern 
 writers on International Law have discussed the 
 question involved in the Swiss Project, whether an 
 inland State is entitled to a maritime flag for mer- 
 cantile purposes. M. Charles Calvo''^ maintains the 
 aflBrmative, when he says, " Les Etats qui ne sont pas 
 situds au bord de la mer ont, comme les Etats Mari- 
 times, le droit d' avoir une marine et un pavilion 
 special, car on ne saurait contraindre une Nation k 
 
 '"' Le Droit International, par M. Charles Calvo, s""® Edition, 
 Paris, 1880, torn. 2. p. 113. 
 
RIGHT OF THE SEA. 329 
 
 se servir de navires strangers pour les besoins de son 
 commerce. Ainsi en Suisse il a ^t^ derniferement 
 qiiestion de la creation d'un pavilion maritime ; rien 
 ne s'opposait en droit; 1' utility pratique de la me- 
 sure peut seule ^tre mise en doute." The observations 
 of Professor Pasquale Fiore " on the same subject 
 are very much to the same purpose : "La Svizzera 
 voleva esercitare il diritto d'inalberare la bandiera 
 marittima per la giusta ragione che esso h uno dei 
 diritti di sovranitk, e che nell' alto mare non pub 
 essere negate ad uno Stato di esercitare quei diritti, 
 che non ledono la liberty del mare, e la libera naviga- 
 zione. Certamente discutendo intorno al diritto as- 
 tratto, era ben fondato quello che domandava quel 
 Govemo ; nel fatto perb dove abbandonare le sue 
 pretese, perch^ si ebbe con ragione a considerare che 
 il diritto de coprire le proprie navi con la bandiera 
 dello Stato suppone un complesso di condizioni di 
 fatto necessarie per goderne, e alle quali non si pub 
 supplere con la volontk." 
 
 It may be gathered from the message transmitted 
 from the Federal Council to the Federal Assembly of 
 the Confederation '*, that in the case of Swiss-owned 
 Steam Vessels plying on the Lake of Geneva or of 
 Constance or on the Lago Maggiore between Swiss 
 ports and French or German or Italian ports, as the 
 case may be, the Captain is allowed to hoist a Swiss 
 flag; and it is mentioned in the same message that 
 when the Swiss Envoy to Japan entered the Port of 
 Nagasaki his vessel hoisted the Swiss flag, to which 
 due respect was paid by the vessels of the Maritime 
 
 " Trattato di Diritto Inter- k la Haute Assembl6e F^d^rale 
 
 nazionale Publico, par Pasquale concernant I'autorisation de faire 
 
 Fiore, Torino, 1879, vol. i. p. usage du pavilion Federal (du 
 
 3^. 25 Novembre, 1864). 
 
 ''" Message du Conseil F6d6ral 
 
330 RIGHT OP THE SEA. 
 
 Powers then at anchor there in accordance with the 
 rules that regulate the maritime Ceremonial of the 
 Flag. Further, it appears that Switzerland has been 
 invited to adhere to the Declaration of Paris on the 
 subject of Maritime Warfare, and she has replied to 
 the invitation in the affirmative. A Keport was sub- 
 sequently presented to the National Council of the 
 Confederation on 13 Dec. 1864. The Message and 
 the Report were both in favour of the Eight of the 
 Confederation to authorise Swiss citizens to use a 
 mercantile flag on the High Seas, and also to grant 
 Ship-papers to such Swiss citizens as should become 
 owners of merchant ships navigating the High Seas, 
 but as the Confederation had not as yet any Code 
 of Maritime Law, the National Assembly ultimately 
 rejected the project, and nothing further has been 
 heard of it. 
 TheJeru- ^ ipS. In the Message of the Federal Council above 
 saJem or mentioned there occurs the following passage : " H y 
 SantaFiag. a plusicurs Etats, qui exploitent la navigation sous 
 leur propre pavilion sans toucher immediatement k 
 la mer. Aujourd'hui encore le pavilion de Jerusa- 
 lem est g^neralement reconnu sur mer, bien que ce 
 soit une ville d'intdrieur. Si nous sommes bien in- 
 form^s, c'est le Prieur de Jerusalem, qui accorde I'au- 
 torisation de faire usage du Pavilion." 
 
 The flag in question, which is styled the Flag of 
 Jerusalem, is also known by the title of the Flag of 
 the Holy Land (la Terra Santa), and amongst the 
 sailors of the Levant is often spoken of as " The Five 
 Cross Flag." It is however generally entered in the . 
 Custom House books of the ports of the Levant as 
 the Flag of Jerusalem, inasmuch as the Letters 
 Patent, which vouch the flag, are signed by the Vvipr 
 of the Latin Convents in Jerusalem, or by the Latin 
 
RIGHT OF THE SEA. 331 
 
 Patriarch or an equivalent Officer of the Latin Church 
 in the Holy City. The flag is in fact a large Ked 
 Cross on a White Field, with a small red cross in each 
 of the four angles between the limbs of the Central 
 Cross, and it is the same flag which is hoisted on the 
 Latin Convents in Jerusalem. The origin of the flag 
 is somewhat obscure, but the privileges to which it 
 entitles a vessel in the ports of Syria and in other 
 ports under the Sultan's dominion are considerable, 
 and it is said to be granted only to French subjects, 
 or at least exclusively to persons who are not Otto- 
 man subjects. There is a circumstance, which might 
 lead us to suppose that some mention of this flag 
 would be found in the Treaties between the Sultan 
 and the Kings of France, inasmuch as a vessel under 
 this flag is treated by the Turkish authorities in 
 every respect as a French vessel; the business of such 
 a vessel in a Turkish port is transacted by the French 
 Consul ; the port dues are paid according^^ to the 
 French tarifi", and all the maritime documents are 
 made out in the French language ; but there is no 
 mention of any such flag in any of the treaties or 
 capitulations between the Kings of France and the 
 Ottoman Porte, of which the text has been made 
 public. There is however a document, of which the 
 text has not been published, as far as we are aware, 
 and which is preserved in the Archives of the Minis- 
 try of Foreign Afiairs in Paris", in which some 
 allusion to this flag may possibly be found, namely, 
 
 " The Baron J. de Testa, in Sept. 1528, par Sul^yraan I. k 
 
 his Eeoueil des Trait6s de la Franjois I. II est conserve dans 
 
 Porte Ottomane, Tom. I. p. 22, Tarmoire de fer, ou est gard6 
 
 says, " Le plus ancien document aussi le firman de 1604 en 
 
 officiel Turo que nous connais- faveur des Eeligieux de Jeru- 
 
 sons k Paris se trouve aux saJem, lequel n'est toutefois 
 
 Archives de I'Empire. C'est qu'une copie authentique de 
 
 I'original de la lettre adress6e en I'original." 
 
332 RIGHT or THE SEA. 
 
 the Firman, granted by the Sultan Ahmed I. in 1604 
 to "Les Religieux de Jerusalem." The French au- 
 thorities however consider the flag to be three or four 
 centuries old, in which case it would seem to be in 
 the nature of a House Flag of the Latin Convents, 
 to which certain privileges have been attached in 
 olden time in order to facilitate their procuring sup- 
 plies ; and as the Latin Convents were and are under 
 French Protection, it is intelligible that vessels carry- 
 ing the flag of the Latin Convents should also be 
 under French Protection, and as such be entitled to 
 the good offices of the French Consuls in all the ports 
 of the Ottoman Empire. This view of the origin of 
 the flag derives support from the fact that packages 
 intended for the Latin Convents in Jerusalem and 
 marked with " the Five Crosses " pass through the 
 Ottoman Custom Houses in the present day duty 
 free. The flag is in fact equivalent to a free pass, 
 and the privilege of permitting it to be used is a 
 source of revenue to the Prior of the Latin Convents. 
 It has no claim to be regarded as a National Flag, 
 for as already said, it is granted only to persons who 
 are not Ottoman Subjects, and accordingly the recog- 
 nition of such a flag in Ottoman Ports has but a very 
 slight bearing upon the question, which was under 
 the consideration of the Federal Council of the Swiss 
 Confederation in 1.864. 
 
CHAPTEE XIT. 
 
 EIGHT OF LEGATION. 
 
 Origin of Legations — The Person of an Ambassador sacred — 
 The Right of Legation an Imperfect Eight — Reception of an 
 Ambassador discretional — Conditional Reception of a Subject as a 
 Foreign Minister — Various Orders of Diplomatic Agents — Classi- 
 fication of Public Ministers in the Eighteenth Century — ^Rule of 
 the Congress of Vienna — Diplomati(j Agents of the First Class — 
 Diplomatic Agents of the Second Class — Diplomatic Agents of the 
 Third and the Fourth Class — Resident Missions — Moldavian and 
 Walachian Charges d' Affaires formerly at the Ottoman Porte — 
 Letters of Credence — Letters of Recommendation — ^FuU Powers — 
 Instructions — Ceremonial of Reception — The Sacred Character of 
 an Ambassador — His Ex-Territoriality — Ex-Territoriality of 
 the Ambassador's Hotel and of his Suite — The Ambassador's 
 Jurisdiction over the personnel of the Embassy — Liability of an 
 Ambassador to the Payment of Local Dues — Liberty of Religious 
 Worship — Inviolability of an Ambassador passing through the 
 Territory of a Third Power — Consuls not Diplomatic Agents. 
 
 ^ 199. Nations, being independent political commu- origin of 
 nities not acknowledging any Political Superior, hold ^^s*''""-^ 
 intercourse with one another upon terms of equality, 
 and upon the presumption of mutual good faith. But 
 the whole body of a Nation cannot confer with the 
 whole body of another Nation, although the interests of 
 an Independent Political Community may from time to 
 time require it to enter into negociations with another 
 Independent Political Community, not merely for the 
 purpose of forming special Conventional Relations, 
 but likewise with the object of maintaining its exist- 
 ing relations under the General Law. It thus be- 
 comes necessary that a Nation should depute one or 
 
334 EIGHT OF LEGATION. 
 
 more individual members of its Body with full Powers 
 on its behalf to negociate with another Nation, and it 
 has been the practice of Nations to confide in the 
 good faith of one another, that the Persons of their 
 Eepresentatives shall be in safe-keeping whilst they 
 are within the jurisdiction of the Nation, to which 
 they have been accredited. 
 The Per- ^ 200. The word Ambassador or Embassador is 
 Ambassar derived by Wicquefort^ from the Spanish word " Em- 
 dorSa.=red.^j^^^„ ^^^^ signifies « to sen'd." The Latin equiva- 
 lent was Legatus or Orator^, and such is the title 
 given by the Koman Eniperor of the Germans and by 
 the States General of the Netherlands in their ancient 
 records to their Ambassador accredited to the Otto- 
 man Porte. Much which is found in the Digest of 
 Justinian ^ in respect to Legati applies to delegates 
 from the Provinces or Municvpia of the Koman Em- 
 pire, who were sent to the Capital vdth Commissions 
 to advocate the interests of the Provincial or Muni- 
 cipal Bodies whom they represented. But the prin- 
 ciple of Law, regarded as a Rule of Eeason promul- 
 gated for the common good, which was applied by the 
 Eoman Jurists to questions which arose touching Le- 
 gati of this order, are equally applicable to Ambas- 
 sadors sent from one Independent State to another, 
 and it is worthy of note that the Eomans, who re- 
 garded foreigners as out of the pale of the Jus Civile\ 
 still held that the person of a foreigner was sacred, if 
 he was invested with the representative character of 
 his Nation. "Si quis legatum hostium pulsasset, contra 
 
 ^ Wicquefort, L'Ambassadeur * Adversus hostem (peregri- 
 
 et ses Fonctions, L. I. p. 3. num) seterna auctoritas esto ; 
 
 " Bynkershoek, De Foro Le- Law of the Twelve Tables. Gra- 
 
 gatorum, L. I. c. i. vina, de Jure Natural!, Gentium 
 
 ' Dig. XLVIII. Tit. VI, etXIITabularum. Lipsi8e,i737, 
 
 § 1- p. 284. 
 
RIGHT OF LEGATION. 335 
 
 Jus Gentium id commissum esse existimatur, quia 
 sancti habentur legaU ®-" 
 
 5 20 1. The Right of Legation forms the first and The Bight 
 principal head of the Yoluntary Law of Nations in tion an 
 the -system of Grotius ". This right belongs only to R^^hf °* 
 States which are independent, "qui summi imperii 
 sunt compotes inter se." Every State, which is sui 
 juris, is entitled to constitute a Representative and to 
 accredit him to another State, which is willing to 
 receive him. But a Nation is not obliged to receive a 
 Representative Envoy from another Nation. Grotius 
 holds that the Law of Nations does not require that 
 all Ambassadors should be received, but that they are 
 not to be excluded without just cause, and that such 
 cause may exist either on the part of the person who 
 sends, or the person who is sent. The instances, 
 which Grotius ' cites in illustration of the just causes 
 of refusal, seem to resolve themselves into cases where 
 the Nation which sends the Ambassador is considered 
 ■ to be an enemy, or where the person sent as Ambas- 
 sador is supposed to l^e a man of bad faith, or where 
 the Embassy itself is held not to be sent in good 
 faith. Vattel ^ on the other hand, holds that a Sove- 
 reign cannot without very particular reasons refuse to 
 admit and hear the Minister of a Friendly Power or of 
 a Power with which he is at peace ; but if there are 
 good reasons for not admitting him into the heart of 
 the country, the Sovereign may notify to the Minister, 
 
 » Dig. L. Tit. VII. § 17. De L. II. c. 18. § i. 
 
 Legationibus. ' Ibid. L. II. c. 18. § m. i. 
 
 " Kestat veniamus ad obliga- Causa esse potest ex eo qui mittit, 
 
 tiones, quas ipsum per se jus illud ex eo qui mittitur, ex eo ob quod 
 
 Gentium, quod voluntarium dici- mittitur. 
 
 tur, induxit : quo in genere prse- * Vattel, Droit des Gens, L. 
 
 cipuum est caput de Jure Lega- IV. c. 5. § 65. 
 tionum. De Jure Belli et Pacis, 
 
336 RIGHT OF LEGATION. 
 
 that lie will send proper persoijp to meet him at an 
 appointed place on the frontier, there to receive his 
 proposals. It then becomes the duty of the Foreign 
 Minister to halt at the place assigned ; it is sufficient 
 that he obtains a hearing, as that is the utmost he 
 has a right to expect. Kltiber * considers that no Na- 
 tion, except under Treaty-engagement to that effect, 
 is bound to receive the Ambassador of another Nation, 
 except when the purpose of the Mission is either to 
 discuss or establish a Right contested by the other 
 Nation, and the object in view cannot be attained in 
 any other manner, or to terminate in an amicable way 
 a dispute occasioned by an evident violation of Right 
 on the part of the Nation to which the Mission is 
 sent. Ch. De Martens " concurs with Kltiber as to- 
 the cases in which alone a Nation is bound to receive 
 an Embassy from another Nation. Wheaton", on 
 the other hand, holds that " no State is obliged by 
 the Positive Law of Nations to send or receive public 
 Ministers, although the Usage and Comity of Na- 
 tions seem to have established a reciprocal duty in 
 that respect. It is evident, however, that this cannot 
 be more than an imperfect obligation, and must be 
 modified by the nature and importance of the rela- 
 tions to be maintained between different States by 
 means of Diplomatic intercourse." 
 Reception § 202. As a NatioU is not under any perfect obli- 
 gation to receive an Ambassador, it may annex such 
 conditions as it pleases to his reception, short of any- 
 thing affecting his personal inviolability. A Nation 
 may refuse to receive a particular individual who has 
 been accredited to it by another Nation, and instances 
 
 ° Kltiber, Droit des Gens, § 176. 
 '" Guide Diplomatique, Tom. I. § 6. 
 " Elements, Part III. c. i. § 2. 
 
 of an Am- 
 
 discre 
 tional. 
 
RIGHT OF LEGATION. 337 
 
 of such refusal are by no means unfrequent ^\ It is 
 usual in the present day in order to avoid any misun- 
 derstanding, which might arise from the refusal of a 
 Nation to receive the Envoy of another Nation on the 
 ground of a personal objection, to intimate before- 
 hand the name of the person whom it is proposed to 
 accredit. This is an act of courtesy on the part of 
 the Nation which makes the communication, but the 
 practice is in itself reasonable and ought to be upheld ; 
 for if a diplomatic Envoy is not welcome to the Sove- 
 reign to whom he is sent, he cannot be expected to 
 gain his confidence, and, unless he enjoys a certain 
 amount of Personal consideration, his Public Character 
 alone will fail to secure him that confidence. 
 
 § 203. A Nation may refuse to receive one of its ConcU- 
 own citizens as the Kepresentative of a Foreign Reception 
 Power, and in some countries it is a State-Maxim P^f^"^^' 
 that a Subject is not to be received in such a capa- Foreign 
 city. Such was the rule of the French" and Swedish^* 
 Courts, and likewise of the United Provinces ^®. But 
 in recent times two French subjects have been accre- 
 dited to and received by the French Court as the 
 Eepresentative Ministers of Foreign Powers, Count 
 Pozzo di Borgo as Minister of Eussia, and the Count de 
 Bray as Minister of Bavaria. Ch. de Martens " speaks 
 of both these distinguished Diplomatists as having 
 been naturalised in the foreign countries which they 
 respectively represented. This circumstance would 
 
 " Thus the King of Sweden Maniere de negocier avec les 
 
 refused in 1758 to receive Mr. Souyerains, c. 6. p. 72. 
 
 Goderich, the British Envoy, who " Codex Legum Sueoise, Tit. 
 
 was thereupon under the neces- de Crimin. § 7. 
 
 sity of returning home. So the *° Bynkershoek, de Foro Le- 
 
 King of Sardinia refused in 1792 gatorum, c. i r. 
 
 to receive M. Semonville the " Guide Diplomatique, Tom. 
 
 Envoy from France. I. c. 11. § 6. 
 
 " De Gaillieres, Traits de la 
 
 PART I. Z 
 
338 RIGHT OF LEGATION. 
 
 tend to prevent all conflict in their case between the 
 International Privileges of a Foreign Ambassador and 
 the Civil Liabilities of a Natural-born Subject of the 
 French Crown, inasmuch as it is provided by the 
 Municipal Law of France that the quality of a French- 
 man is lost by Naturalisation acquired in a foreign 
 country". A similar rule of Law obtains in most 
 countries, but Gieat Britain was an exception, as 
 before 1870 she did not allow a Natural-born Subject 
 to renounce or discharge his allegiance to the Crown 
 of Great Britain and Ireland under any circum- 
 stances". "Nemo potest exuere patriam" was an 
 Imperial maxim, which British tribunals strictly up- 
 held. But under the Naturalisation Act, 1870, (33 
 Vict. ch. 14,) a British subject, on becoming natural- 
 ised in a foreign State, now loses his British national 
 character. 
 
 It seems open to question, if a Sovereign Power 
 has consented to receive, as the Representative of a 
 foreign Nation, one of its own Natural-born Subjects 
 without any express reservation of its Sovereign 
 authority over him, and in a case in which such au- 
 thority has not been divested under some general 
 provision of its Municipal law, whether such an un-^ 
 conditional reception is not a waiver of all authority, 
 which it might otherwise assert over him on the 
 ground of his origin. Wheaton inclines to think that 
 the unconditional reception of a Subject in the cha- 
 racter of a Eepresentative of a foreign Nation is a 
 waiver of all personal jurisdiction over him on the 
 
 " La quality de Frangais se Tom. II. c. 135. This is a 
 
 perdra par la naturalisation ac- relic of the period when the 
 
 quise en pays stranger. Code conception of " territorial Sove- 
 
 Civile, Art. 17. reignty " was imperfectly de- 
 
 " Blackstone's Commentaries, veloped. 
 
RIGHT OF LEGATION. 339 ' 
 
 part of the Sovereign who has received him ^^ Sir. 
 Eobert Phillimore ^^ is of opinion that if a Subject be 
 received without any previously promulgated stipu- 
 lation upon the part of his own Sovereign who re- 
 ceives him, he will be entitled to the full Jus legationis. 
 Vattel in discussing this question says, that "a 
 Natural-born Subject of a State may, without re- 
 nouncing his country for ever, become independent 
 of it during the whole time that he spends in the 
 service of a foreign Prince ;" and the presumption is 
 certainly in favour of such independence, for the 
 Status and Functions of a Public Minister naturally 
 require, that he should depend only on his Master or 
 the Prince who has intrusted him with the manage- 
 ment of his affairs. Whenever, therefore, there does 
 not exist any circumstance which furnishes a proof 
 or indication to the contrary, a Foreign Minister, 
 though antecedently a Subject of the State to which 
 he is accredited, is reputed to be absolutely independ- 
 ent of it during the whole time of his Commission. 
 If his original Sovereign does not choose to allow 
 him such independence within his dominions, he may 
 refuse to admit him in the. character of a Foreign 
 Minister ^^ 
 
 ^ 204. In the early intercourse of European Nations Various 
 a distinction of title amongst Diplomatic Agents was Diplomatic 
 unknown. They were indifferently styled in Latin ■*s®°*'" 
 documents Legati or Oratores, and in more modem 
 records they are designated Ambassadeurs, Ambascia- 
 dori, or Embascadores, respectively in French, Italian, 
 and Spanish records. Grotius treats of Legati under a 
 single head. The vanity of Princes in regard to Cere- 
 
 " Elements, Part III. c. i. § 15. 
 '^ Commentaries, Tom. II. c. 135. 
 ^^ Droit des Gens, L.IV. c. 8. § 112. 
 z 3 
 
340 BIGHT OP LEGATIOK. 
 
 monial on the one hand, and motives of parsimony on 
 the other, contributed to introduce a distinction in or 
 about the 15th Century between Diplomatic Agents 
 who should represent the ^personal dignity as well as 
 the independent rights of their Sovereign, and diplo- 
 matic agents who should represent the affairs alone 
 of the Sovereign who accredited them. Louis XI of 
 France is said to have been the first of the European 
 Sovereigns, who accredited to another Sovereign 
 Power a Public Minister to represent him in the con- 
 duct of his affairs only, and not in respect of his per- 
 sonal dignity; and his example led the way to the 
 introduction of two distinct classes of diplomatic 
 Agents, a higher class representing the dignity of the 
 person of their Constituent as well as his affairs, 
 and a lower class simply representing him in the 
 transaction of his affairs. 
 
 At the time when Vattel wrote his work on the 
 Law of Nations a third degree of Representation had 
 become established by Custom, and Vattel divides ac- 
 cordingly the Diplomatic Body into Ambassadors, 
 Envoys, and Residents. In the Treaty of Peace con- 
 cluded at Passarovitz^" between the Emperor Charles 
 VI and the Sultan Ahmed III (anno 1718) we finci 
 mention of three classes of Public Ministers as dis- 
 tinguished from the simple Agent ^\ the latter of 
 whom, if his functions were not commercial, was in- 
 cluded in the protection of the same Treaty-stipula- 
 tions which guaranteed the personal safety of other 
 Public Ministers. 
 
 ^'' Ministri porro Csesarei, sive same time and place between the 
 
 Oratoris, sive Ablegati, sive E.e- same Powers, Agents are men- 
 
 sidentis, sive Agentis munere tioned in the list of Officials con- 
 
 fungantur. Schmauss, Corp. Jur. nected with Commerce : pariter 
 
 Gent. Academ. p. 1703. Consules, Vice-Consules, Agentes, 
 
 "^ In the Treaty of Commerce Factores, Interpretes. Schmauss, 
 
 and Navigation concluded at the p. 1 7 1 7. 
 
EIGHT OP LEGATION. 341 
 
 It is not easy to ascertain the precise line of de- 
 marcation, which distinguished the functions of the 
 Resident from those of the Envoy, for the third class 
 of Diplomatic Agents was more frequently entrusted 
 with the negociation of affairs of State than the 
 Envoy J but the office of Eesident seems to have 
 been held in less honour and consideration than that 
 of Envoy, and it was frequently delegated to a 
 subject of the State, to which the Eesident was 
 accredited. The title of Eesident appears also to have 
 been sometimes conferred upon persons who were 
 only entrusted with the management of the private 
 affairs of a Sovereign. The functions of the simple 
 Agent on the other hand seem to have been originally 
 very indefinite. Vattel speaks of him as having been 
 formerly a kind of public Minister ; but the title of 
 Agent in Vattel's time bad come in practice to be 
 confined to persons appointed by Princes exclusively 
 to transact their private affairs, and who were not 
 unfrequently subjects of the Country where they re- 
 sided. Such Agents are not the bearers of Letters of 
 Credence properly speaking, and they are conse- 
 quently not Public Ministers, nor under the protec- 
 tion of the Law of Nations, as such. Residents also 
 appear sometimes not to have been furnished with 
 Letters of Credence, and under such circumstances 
 the title alone of Resident was no protection to them. 
 This may serve as an explanation of the fact aUuded 
 to by Bynkershoek *^, that Wicquefort, who was a 
 native of Amsterdam, was in the military service of 
 the States General at the time when he was appointed 
 the Eesident of the Duke of Luneburg at the Hague. 
 Wicquefort, notwithstanding his office of Eesidentj 
 was cited before a Dutch Court and condemned to 
 *2 De Foro Legatorum, c, 1 1 . 
 
342 KIGHT OP LEGATION. 
 
 imprisonment for life. Bynkershoek holds that the 
 office of Resident did not, under the Law of Nations, 
 exempt Wicquefort from the jurisdiction of the Dutch 
 Courts. The Office of Resident, as exercised in his 
 case, seems to have differed very little from the office 
 of a Consul or Commercial Agent, for Vattel ^^ speaks 
 of " Dutch Merchants who obtain the title of Resi- 
 dents of certain foreign Princes, and nevertheless con- 
 tinue to carry on their commerce, thereby sufficiently 
 denoting that they remain subjects of the States 
 General." 
 ciaasifica- $205. The Law of Natious, antecedently to the 
 PubUo Mi- institution of permanent Foreign Missions at the dif- 
 thfiStiT fsrent European Courts, did not recognise any dis- 
 Century. tinction of Class or Order amongst Public Ministers. 
 Each Minister or Envoy received such special consi- 
 deration as the nature of his Mission entitled him to. 
 But with the introduction of permanent missions, a 
 question of Ceremonial and Precedence arose amongst 
 the Representatives of Foreign Sovereigns at each 
 Court. The Ambassador was received with higher 
 honours, and took precedence of the Envoy. The 
 Envoy, on the other hand, had precedence of the 
 Resident; the Resident in his turn, being a Public 
 Minister, took precedence of the Agent, whose duties 
 were confined to the private aifairs of his Sovereign. 
 Such and so many were the grades of the diplomatic 
 hierarchy at the commencement of the Eighteenth 
 Century. The Agent has for the most part disap- 
 peared, and is replaced by the Chargd d' Affaires, but 
 the French mission in Spain still retains amongst 
 the personnel of its estabUshment an Agent of the 
 French Nation, who is charged with the conduct of 
 
 2= Vattel, L. IV. c. 8. § 112. 
 
RIGHT OF LEGATION. 343 
 
 the affairs of his countrymen, which are of a secondary- 
 order ^*. 
 
 In the course of the Eighteenth Century a practice 
 was introduced of accrediting public Ministers with- 
 out any particular designation of rank or character. 
 Vattel^^ states that this expedient was adopted to 
 avoid dispute about precedence. Custom had at 
 such time established a particular Ceremonial for the 
 Ambassador, the Envoy, and the Resident, but such 
 custom did not altogether prevent disputes between 
 the Ministers of different Princes accredited to the 
 same Court, as to their respective rank and prece- 
 dence ; more particularly when they happened to 
 belong to the same Class or Order. Thus the Ambas- 
 sador of an Emperor might claim to take precedence 
 of the Ambassador of a King, by reason of the pre- 
 cedence which the Emperor himself claimed over all 
 Kings. A King, on the other hand, might be indis- 
 posed to allow his Ambassador to concede precedence 
 to the Ambassador of an Emperor, yet he might be 
 equally indisposed to incur the risk of hostilities with 
 the Emperor. Under such circumstances by accrediting 
 his own Minister under the simple and indeterminate 
 title of Minister, he could allow him to concede pre- 
 cedence to the Ambassador of an Emperor without 
 compromising the dignity of his Crown. 
 
 We thus find the title of Minister Plenipoten- 
 tiary introduced, such Minister Plenipotentiary taking 
 rank immediately after an Ambassador. The office of 
 Minister Plenipotentiary came gradually to be united 
 with that of Envoy Extraordinary, and was placed in 
 the same rank. Ministers Resident and Ministers 
 Charges d' Affaires shortly afterwards completed the 
 
 '■» Ch. de Martens, Guide Diplomatique, Tom. I. § 1 2. 
 " Droit des Gens, L. IV. § 74- 
 
344 EIGHT OF LEGATION." 
 
 Catalogue, which we find in general acceptance at the 
 commencement of the Nineteenth Century. 
 Rule of the ^ 2o6. The precisc rank and precedence however 
 Viema^° ° of Diplomatic Agents was not a matter universally- 
 agreed upon amongst the Nations of Europe, until 
 the Powers assembled in Congress at Vienna came to 
 a common understanding on the subject, and esta- 
 blished Three Classes ^^ : 
 
 1. Ambassadors, Legates or Nuncios. 
 
 2. Envoys, Ministers, and others accredited to 
 Sovereigns, (auprfes des Souverains.) 
 
 3. Charges dAffaires accredited to Ministers of 
 Foreign Afiairs. 
 
 This classification proceeded upon a very intelligible 
 distinction between the functions exercised by each 
 Class. The Ambassador is accredited by a Sovereign 
 to a Sovereign, and represents the ^personal dignity 
 of his Constituent, as ■ well as the public affairs of 
 the Nation over which his Constituent rules. The 
 Envoy or Minister is similarly accredited by a Sove- 
 reign to a Sovereign, but he represents only the af- 
 fairs of the Nation over which his Constituent rules. 
 The Charg^ d' Affaires is not accredited by the Sove- 
 reign to the Sovereign, but is accredited by the 
 Minister of Foreign Affairs to the Minister of 
 Foreign Affairs. At the subsequent Congress of 
 Aix-la-ChapeUe, (21 Nov. 18 18,) the five Great 
 Powers there assembled agreed to institute a Class 
 intermediate between the Envoy and the Charg^ 
 dAffaires, to which they gave the title of Ministers 
 Resident accredited to Sovereigns. The distinction 
 thus introduced was not very logical, seeing that the 
 
 '"' Rfeglement sur le rang entre annexed to the Final Act of the 
 les Agens Diplomatiques, being Congress. Martens, N. R. II. 
 the seventeenth of the documents p. 449. 
 
RIGHT OF LEGATION. 345 
 
 extent of the second Class remained the same, and 
 that the second is sufficiently large to include the 
 third. The reasons for the introduction of this inter- 
 mediate Class may be traced to the unwillingness of 
 the Great Continental Powers to allow their Minis- 
 ters of the Second Class to give way to the Ministers 
 of the same Class who represented the Minor Powers 
 of Germany, and who might be entitled by Seniority, 
 agreeably to the regulations of the Congress of 
 Vienna, to take precedence of the Envoys of the 
 Great Powers. The introduction of a Third Class 
 under the title of Ministers Kesident, accredited to 
 Sovereigns, enabled the Minor Powers to avoid all 
 contest with the Great Powers, and at the same time 
 to have the services of Diplomatic Agents who were 
 Public Ministers properly speaking. 
 
 ^207. Diplomatic Agents of the first class alone Diplomatic 
 enjoy by the Custom of Nations, as well as under the thrFirst 
 regulations of the Congress of Vienna, the fuU attri- ^'*''" 
 butes of the Eepresentative Character. They are 
 accordingly entitled to the same honours as would 
 be paid to the person of the Sovereign, whom they 
 respectively represent. The precise nature of the 
 Ceremonial, to which Ambassadors are entitled, de- 
 pends upon the usage of the particular State to 
 which they are accredited. It was provided by the 
 fifth of the Eules adopted at the Congress of Vienna, 
 that each State should settle an uniform mode of 
 reception for Diplomatic Agents of each Class, so that 
 the discretion of each State is left unfettered, pro- 
 vided it is not guilty of partiality towards the Repre- 
 sentative of any one State. The third of the same 
 rules provided, that Diplomatic Agents on an extra- 
 ordinary Mission should not by reason thereof {k ce 
 titre) enjoy any superiority of rank; so that the 
 
346 RIGHT OF LEGATION. 
 
 Ambassador Extraordinary can claim no privilege or 
 precedence over the Ordinary Ambassador, The 
 Papal Nuncio^'' at present takes his place amongst 
 the Ambassadors in the order of Seniority, as it is 
 provided by the fourth of the same rules, that Diplo- 
 matic Agents of the same Class shall take rank and 
 precedence according to the date of the ofiScial notifi- 
 cation of their arrival at the Court to which they are 
 accredited. 
 
 The practice of accrediting Diplomatic Agents of 
 the first Class is confined to the States which are 
 entitled to Royal Honours. Such Honours were 
 formerly enjoyed exclusively by Monarchical States, 
 and the Republics of Venice and of the United 
 Netherlands were for some time exceptional instances 
 of such honours being shared by States not having a 
 Monarchical form of Government ; at the same time, 
 the Ambassadors of these powerful Republics were 
 accustomed to yield precedence to the Represen- 
 tatives of Crowned Heads ^*. The Grand Duchies of 
 Germany, the Electorate of Hesse, and the Germanic 
 Confederation, were European States entitled to 
 Royal Honours, and they were accordingly entitled 
 to accredit Diplomatic Agents of the first Class. The 
 rank and precedence of Sovereign Princes are not 
 determined by any Conventional rule analogous to 
 that which determines the rank and precedence of 
 their Diplomatic Agents; but amongst Sovereign 
 Princes entitled to Eoyal Honours, the custom pre- 
 vails for such, as have not the title of Emperor or 
 King, to concede precedence on all occasions to 
 
 " The Ambassadors of t'ne to the Papal Nuncio, but those 
 
 Eoman Catholic Princes, includ- of Russia and the Ottoman Porte 
 
 ing the Roman Emperor of the did not recognise any such rule. 
 Germans, were accustomed in '^^ Vattel, Droit des Gens, L. 
 
 former times to cede precedence II. § 38. Kluber, § 91, 
 
RIGHT OF LEGATION. 3-17 
 
 Emperors and Kings. There- existed in Europe, 
 before the establishment of the German Empire in 
 1 87 1, several Independent Princes who did not enjoy 
 Eoyal Honours ; such, for instance, as the Members 
 of the Germanic Confederation below the rank of 
 Grand Duke or Elector. These yielded precedence 
 to Princes entitled to Eoyal Honours. There are 
 also European States which enjoy an Independence 
 modified by Treaties, such as Monaco and San 
 Marino. Such States rank after all the States which 
 enjoy an absolute Independence, and under the pro- 
 visions of the Conventions, by which their Indepen- 
 dence is modified, are represented for all political 
 purposes by the Diplomatic Agents of the Protecting 
 Power. The rules of precedence, which are observed 
 amongst Independent Sovereign Powers, rest upon 
 Usage and general acquiescence. The question of 
 determining the relative rank of Independent States 
 by a positive Compact, was taken into consideration 
 at the Congress of Vienna ; but difficulties having 
 arisen in regard to the rank to be assigned to the 
 Great Hepublics^^ the further discussion of the 
 question was adjourned indefinitely, and the Con- 
 
 ^' The title of courtesy of a addressing certain Sovereign 
 
 Great Republic, such as Venice Princes. Thus the titles of the 
 
 and Genoa, was Serenissima Res- Very Christian or Most Christian 
 
 publica. A similar title is in King and Firstborn Son of the 
 
 the present day assigned to Con- Church, are given to the Kings 
 
 federations. Thus the Germanic of France ; the King of Spain 
 
 Confederation was addressed by has been styled, since 1496, the 
 
 the title of " the Most Serene," Catholic King ; the Kings of 
 
 and Diplomatic Agents were England, since 1591, Defenders 
 
 accredited to the Most Serene of the Faith ; the King of Po- 
 
 Sovereign Princes and Free Ci- land, the Orthodox King ; the 
 
 ties of the Germanic Confedera- King of Portugal, since 1748, the 
 
 tion. Titles of a Eeligious cha- Very Faithful King ; the King 
 
 racter, originally conferred by of Hungary, since 1758, the 
 
 the Holy See, are still used in Apostolic King. 
 
348 BIGHT OF LEGATION. 
 
 gress limited its action to the regulation of the rank 
 and precedence of the Diplomatic Agents of Inde- 
 pendent States^". 
 Diplomatic § 2o8. The second Order of Diplomatic Agents in- 
 thfsecond eludes Envoys, Envoys Extraordinary, Ministers Ple- 
 ciass. nipotentiary, and Internuncios ^^. Diplomatic Agents 
 of the second Class are not clothed with the peculiar 
 character which attaches to diplomatic Agents of the 
 first Class, and which is derived from the dignity of 
 the Sovereign whom they represent. Accordingly, 
 they cannot demand of right a personal audience of 
 the Sovereign to whom they are accredited. Such a 
 Right is the distinctive privilege of aDiplomatic Agent 
 of the first Class. In all other matters which concern 
 him, as the Mandatary of his Nation, a diplomatic 
 agent of the second Class does not difier in any 
 material respect from a Diplomatic Agent of the 
 first Class. There was a period when the etiquette of 
 European Courts confined the privilege of personal 
 intercourse with the Sovereign, at whose Court he 
 was accredited, to an Ambassador as distinguished 
 from an Envoy, but the usage of the present day 
 authorises Diplomatic Agents of the second Class to 
 confer personally on suitable occasions with the Sove- 
 reign to whom they are accredited. The privilege 
 of personal intercourse with the Sovereign in the 
 case of an Ambassador was not at any time con- 
 sidered to give to verbal conferences with the 
 Sovereign the character of Ofiicial acts binding 
 
 '" Kliiber, Droit des Gens, The regulation of the Congress 
 
 § 94- of Vienna is now observed by the 
 
 ^' The Austrian Internuncio Porte. Ch. de Martens, Guide 
 
 at Constantinople took prece- Diplomatique, c. lo. § 65. Comte 
 
 dence formerly, under treaties du Garden, Trait6 Complet de 
 
 with the Ottoman Porte, of all Diplomatic, L. 5. § 3. 
 Ministers of the Second Order. 
 
RIGHT OF LEGATION. 349 
 
 upon his government. International Negociations 
 were then, as now, conducted through a Minister of 
 Foreign Affairs, and it was through him alone that 
 binding Official acts could be concluded bj an Am- 
 bassador. In the present day the observation is still 
 more generally applicable, as wherever the Monarchical 
 form of Government is combined with Representative 
 institutions, the Sovereign can only bind the Nation 
 through the agency of a Eesponsible Minister ^^. 
 
 § 209. The third Order of Diplomatic Agents com- Diplomatic 
 prises Ministers, Resident Ministers, Residents, Min- the Third 
 isters Charges d'Affaires. The distinction between fourth* 
 the Minister Charg^ d' Affaires, and the simple Chargd ^'*^^- 
 d' Affaires, who ranks in the fourth Class of Diplomatic 
 Agents, consists in the circumstance that the former 
 is accredited by the Sovereign to the Sovereign as 
 Minister, the title of Minister being engrafted upon 
 that of Charge d'Affaires^^, Martens cites as an early 
 example of this particular species of Diplomatic Agent, 
 the Minister Charge d'Afaires of the King of 
 Sweden accredited to the Padichah of the Ottomans 
 in 1784^*. The fourth Order consists of Diplomatic 
 Agents accredited by the Minister of Foreign Affairs 
 to the Minister of Foreign Affairs. These are either 
 sent out originally with express Credentials from the 
 Minister of Foreign Affairs as Charges d' Affaires, or 
 have been sent out originally furnished with a Com- 
 mission from the Sovereign, as Secretaries of Embassy 
 or Secretaries of Legation ; and in the latter case they 
 are orally invested with the Charge of the Embassy 
 or Legation by the Ambassador or Minister himself 
 
 82 Envoys as distinguished reign are necessary to give to the 
 
 from Ambassadors, (Oratores or Charge d' Affaires the character 
 
 Leeati,) are designated in Latin, of Minister ad interim. 
 
 Imdati or Ablegati. =* Precis du Droit des Gens, 
 
 =' Credentials from the Sove- T. 11. § 194. 
 
350 RIGHT OF LEGATION. 
 
 to be exercised during his absence from the seat of 
 his mission. They are accordingly announced in this 
 character by him before his departure to the Minister 
 of Foreign Affairs of the Court to which he is accre- 
 dited. This fourth Order of Diplomatic Agent is not 
 entitled to confer with the Chief of the State, but 
 only with the Minister of Foreign Affairs to whom he 
 is accredited, and this rule is maintained in the case 
 of Eepublics, as well as of Monarchical States. 
 Wheaton cites an instance from the Archives of the 
 United States,- in which the Secretary of State for 
 Foreign Affairs notified formally to the Charg^ d' Af- 
 faires of an European Power of the highest rank, that 
 " he could hold official intercourse only with a De- 
 partment of State ; that he had no right to converse 
 with the President on matters of business, and might 
 consider it a liberal courtesy, if he was presented to 
 him at all ^^-" Consuls, as such, are Commercial not 
 Political Agents, and accordingly do not belong to any 
 of the four Orders of Diplomatic Agents, but the ofiSce 
 of Charg^ dAffaires is sometimes combined with that 
 of Consul-General in the same individual, who has 
 thus the character of a Diplomatic Agent engrafted 
 upon the Commercial character of Consul. 
 Resident § 210. Every Nation may determine for itself in 
 what character it will accredit a Diplomatic Agent, 
 whether it will confer upon him, by its Credentials, 
 the full Eepresentative character which belongs to 
 the Ambassador or highest class of Diplomatic Agent, 
 or will only confer upon him limited rank. But this 
 absolute discretion upon the part of a Nation to ac- 
 credit its Diplomatic Agents under any character 
 
 "^ Elements, Part III. c. i. § 6, receives Ambassadors and other 
 The President, under the Con- public Ministers, 
 stitution of the United States, 
 
 Missions. 
 
RIGHT OF LEGATION. 351 
 
 which it may choose, is limited to occasional and tem- 
 porary Missions, as distinguished from Missions per- 
 manently resident at a Foreign Court. No Nation can 
 insist as a matter of Eight, that a Diplomatic Agent 
 on its behalf shall be permanently entertained by an- 
 other Nation. Grotius^' held that Permanent Lega- 
 tions (assiduae legationes) might be with right excluded 
 by all Nations, but the practice to maintain Resident 
 Legations at Foreign Courts had in the course of the 
 following century become so general amongst the 
 European Nations, that Vattel^'', whilst holding that 
 a Nation is not under an obligation to suffer at all 
 times the residence of a Foreign Minister, is of opinion, 
 that any Nation, which refuses to entertain a Resident 
 Minister from a Foreign Power, must allege very 
 good reasons for its conduct in this respect, if it 
 wishes to avoid giving offence. Such reasons may 
 arise from particular circumstances, but there are also 
 ordinary reasons which may be always in force, such 
 as relate to the constitution of a Government and the 
 State of a Nation. In the absence however of any 
 such reason, the Usage of two centuries may now be 
 said to justify the Nations of Europe in relying upon 
 the Comity of one another to entertain permanently 
 their duly accredited Diplomatic Agents. As the 
 same Usage, however, requires in regard to Resident 
 Missions, that Nations should accredit and receive 
 Diplomatic Agents of equal rank, the special rank of 
 the Diplomatic Agents to be accredited and enter- 
 tained on either side must be a subject of mutual 
 agreement between States. The practice of accredit- 
 
 =° Optimo autem jure rejici cui illee ignoratae. — De Jure B. et 
 
 possunt, quae nunc in usu sunt P. L. II. c. i8. § 3. 
 
 legationes assiduae, quibus quam " Droit des Gens, L. 4. 
 
 non sit opus docet mos antiquus, § 66. 
 
352 EIGHT OF LEUATION. 
 
 ing and entertaining Ministers of the first Class has 
 been hitherto confined to Crowned Heads, Sovereign 
 Princes enjoying Eoyal Honours, and the Great Ke- 
 publics. There is no rule which prevents a Nation 
 accrediting several Diplomatic Agents of equal or 
 unequal rank to the same Nation, or the same person 
 as its Diplomatic Agent to several Nations ^*. On the 
 other hand, the same person may be accredited to the 
 same Court by one Sovereign Prince as his Ambas- 
 sador, and by another Sovereign Prince as his Envoy 
 Extraordinary, or by both Princes as their Envoy 
 Extraordinary. Thus the Austrian Ambassador used 
 frequently to have separate Credentials to Foreign 
 Courts, as Envoy Extraordinary of the Duke of 
 Parma. The Prussian Minister in former days had 
 for the most part Credentials from the King of 
 Prussia and from the Grand Duke of Saxe. 
 Moldavian §211. Agents for the private affairs of Princes, and 
 faohian^" such as have only the title of Resident or Counsellor 
 d'^fflfr °"^ Legation or Agent, are not members of the Diplo- 
 at the otto- matic Body, in other words, they do not represent 
 'their respective Nations for Political Purposes, and 
 they are not entitled to any Diplomatic privilege or 
 immunity. To this class belonged the Charges d' Af- 
 faires of the Hospodars of Moldavia and Walachia, 
 who resided at the Ottoman Porte, and for whom the 
 Emperor of Russia stipulated by the sixteenth Article 
 of the Treaty of Kutschuk Kainardji, (anno 1774=**,) 
 that they should be treated by the Porte with kind- 
 
 '* It was not an unusual prac- affaires concemant les dites Prin- 
 
 tice for Non-Germanic Powers cipalit6s, et seront trait^s avec 
 
 to accredit one and the same bont6 de la Porte, et non obstant 
 
 Minister to divers States of the leur peu d'importance consider^s 
 
 Germanic Confederation. comme personnes jouissant du 
 
 '* Marten's Recueil, Tom. II. Droit des Gens, c'est k dire k 
 
 p. 305. Lesquels veilleront aux I'abri de toute violence. 
 
RIGHT OF LEGATION. 353 
 
 ness, and notwithstanding their little importance, 
 should be considered as persons so far enjoying the 
 Right of Nations, as to be safe from personal violence. 
 This was an exceptional case founded altogether on 
 the provisions of a special Convention, whereby the 
 Porte agreed to restrict the exercise of its Eights of 
 Sovereignty over certain of its own Subjects, whilst 
 charged with the functions of Agent on behalf of 
 the Hospodars at the central seat of the Ottoman 
 Government. But this Treaty-engagement did not 
 confer the Diplomatic Character on these Charges 
 d'Affaires, nor were they received into the body of 
 Diplomatic Agents resident at the Ottoman Porte*". 
 
 f 212. A Public Minister, who is sent to represent Letters of 
 his Sovereign at the Court of another Sovereign, 
 ought to be expressly authorised for that purpose, 
 and the Sovereign to whom the mission of the Mi- 
 nister is addressed, ought to be duly certified of his 
 authority to present himself as the Eepresentative of 
 his Sovereign. Every Public Minister is accordingly 
 furnished by the Sovereign or Chief of the State, which 
 delegates him, with Letters of Credence, (Literge fidei 
 sive credentiales,) which are addressed to the Sove- 
 reign or Chief of the State in the case of States which 
 are under a permanent Sovereign or chief Magistrate ; 
 but in the case of Unions or Confederations of States, 
 which are for the most part under a temporary Pre- 
 
 *" These Charges d'Affaires (termed in the Turkish language, 
 
 were properly speaking Agents Kayson Kehagasi,) and as the 
 
 for the affairs of the Principal!- lives of such agents were always 
 
 ties, transacting business with the in jeopardy, if a political crisis 
 
 Home Department at Constanti- arose, a stipulation for the safe 
 
 nople. It had been the practice conduct of the Agents of the 
 
 in the Ottoman Empire for the two Principalities was introduced 
 
 Governors of Provinces to be re- into the Treaty of Kutschuk 
 
 presented at the Central Seat of Kainardji. 
 Administration by an Agent, 
 
 PART I. A a 
 
354 EIGHT OF LEGATION. 
 
 sident, the letters of Credence are addressed to the 
 States themselves. The reason for this distinction of 
 practice in the case of Unions or Confederations of 
 States is to be found in the circumstance, that as 
 the President of an Union or Confederation is a tem- 
 porary Officer, if the Credentials of Foreign Ministers 
 were addressed to him, they would have to be re- 
 newed as often as a new President was appointed, and 
 serious prejudice to both Nations might result from 
 the frequent interruption of Diplomatic intercourse. 
 
 The Letters of Credence set forth the name and 
 special character of the Diplomatic Agent, and the 
 general object of his Mission, and request that he 
 may be received with favour, and have full faith given 
 to what he says on behalf of his Sovereign. They are 
 invariably sealed up, and were formerly secured with 
 silken cord as well as with wax. The modem prac- 
 tice is to enclose the Letters in a sealed envelope. 
 Their form varies with the usage of each Nation. They 
 are for the most part in the form of a Cabinet Letter, 
 (Letire de Cabinet,) written in the first person and ad- 
 dressed by the Sovereign, who accredits the Minister, 
 to the Sovereign to whom he is accredited, commencing 
 with "My dear Brother" or "My dear Sister," and' 
 ending with an affectionate subscription and signature 
 under the hand of the Sovereign. These Letters are 
 sometimes styled Lettres de Cachet, being sealed up 
 with the Cachet seal*i, which is the smallest seal of 
 the Minister of Foreign Affairs. The Letters of Cre- 
 dence of some Sovereigns, as for instance of the Kings 
 of Prussia and Denmark, are countersigned by the 
 Minister of Foreign Affairs, It is not however the 
 practice in Great Britain for the Minister of Foreign 
 
 " When they are enclosed in an envelope, the envelope is sealed 
 up with the Cachet Seal. 
 
RIGHT OP LEGATION. 355 
 
 Affairs to countersign Letters of Credence furnished 
 to Britisli Diplomatic Agents. In cases where a more 
 formal ceremony is intended to be observed, the 
 Letters of Credence are in the form of a Lettre de 
 Chancellerie, which is drawn up in the third person, 
 and in which all the titles of both Sovereigns or both 
 States are set forth at length. A Lettre de Chancel- 
 lerie is generally used when a Sovereign Prince ac- 
 credits a Diplomatic Agent to a Eepublic or a Con- 
 federation of States, or when a Christian Power 
 accredits a Public Minister to a Mahommedan Prince. 
 Thus Great Britain accredits her Ministers to the 
 United States of America, and to the Emperor of 
 Morocco, in a Lettre de Chancellerie, whilst she ac- 
 credits her Ambassador to the Emperor of Austria 
 in a Lettre de Cabinet. The Lettre de Chancellerie is 
 written upon a sheet of foolscap paper, and in the 
 case of British Credentials, it bears upon its face the 
 impression of the small signet of the Foreign Secretary- 
 stamped upon a wafer *2. Great Britain has, of late, 
 set examples to other States of simpHfying, as much 
 as possible, the Ceremonial of Credentials, but several 
 of the great European Powers, Kussia for instance, 
 still continue to employ the Lettre de Chancellerie 
 for the Credentials of her Diplomatic Agents of the 
 three first Orders. In the case of a Diplomatic 
 Agent of the fourth Order, his Letters of Credence 
 are addressed by the Chief of the Department of 
 Foreign Affairs in his own country to the Chief of 
 the corresponding Department in the country to 
 
 *^ The British Foreign Secre- ceWerte, and a large seal for wafers, 
 
 tary has three Seals, a small called the large Signet, for the 
 
 Cachet Seal for wax, used for Commissions of Secretaries of 
 
 Lettres de Cabinet, an interme- Embassy or Legation, and of 
 
 diate seal for wafers, called the Consuls, 
 small Signet, for Lettres de Chan- 
 
 A a a 
 
356 RIGHT OF LEGATION. 
 
 which he is accredited. Where a Foreign Minister 
 is accredited to an Emperor or a King, it is usual to 
 furnish him with Letters of Credence of identical im- 
 port, mutatis mutandis, addressed to the Consort of 
 the King, if she has the title and rank of Empress or 
 Queen *^ ; but if he is accredited to a reigning Empress 
 or Queen, it is not usual to furnish him with addi- 
 tional Letters of Credence addressed to the Prince 
 Consort. It would appear to be the practice of some 
 Governments to furnish their Pubhc Ministers with 
 Letters of Letters of Becommendation in addition to their Letters 
 mendation. of Credence, addressed by the Sovereign himself, or 
 by his Minister of Foreign Affairs, to distinguished 
 public Functionaries, or to Members of the Govern- 
 ment of the State to which the Ministers are ac- 
 credited. Of this kind were the Letters of Recom- 
 mendation, with which the Foreign Ministers, ac- 
 credited by the Christian Powers of Europe to the 
 Ottoman Porte, were formerly furnished, and which 
 were addressed to the Grand Vizier and to the Reis 
 Effendi, in other words to the Ottoman Prime Min- 
 ister and to the Ottoman Secretary for Foreign Affairs. 
 The practice of furnishing their Diplomatic Agents, 
 who are accredited to the Porte, with Letters of 
 Recommendation, is stiU. observed by some of the 
 European Powers, but Great Britain has discontinued 
 them, and she furnishes her Ambassador to the Porte 
 in the present day only with Letters of Credence, 
 
 *' In states where Morganatic conferred upon her. Thus Fre- 
 marriages, or marriages of the deriok IV. of Denmark, con- 
 Left Hand are recognised as tracted a left-handed marriage 
 lawful varieties of the matrimo- with a noble Danish Lady during 
 nial contract, the wife of the Em- the lifetime of his first Queen, and 
 peror or King does not necessa- upon the death of the Queen, the 
 rily bear the title and rank of King elevated his left-handed 
 Empress or Queen, unless that wife to the dignity of Queen, 
 title and rank have been directly 
 
RIGHT OF LEaATION. 357 
 
 drawn up in the form of a Lettre de Cabinet, and 
 addressed by the Sovereign in the first person to the 
 Padichah. Great Britain, in so modifying her prac- 
 tice, has been careful to treat the Padichah of the 
 Ottomans with the same degree of respect which she 
 shows to the Emperor of all the Eussias. The Pa- 
 dichah, on the other hand, accredits his Ambassador 
 to Great Britain in a Lettre de Chancellerie, to which 
 his Autograph Signature is subscribed, and upon 
 which the mark of a Cachet seal is impressed in ink. 
 It would thus appear that Reciprocity between Na- 
 tions is not required in the ceremonial of accrediting 
 their Diplomatic Agents. Each Nation has its own 
 practice, and whenever a simplification of form has 
 been adopted by any Nation, such simplification has 
 been held not to imply any diminution of respect 
 towards the Sovereign to whom the Letters of Cre- 
 dence are addressed. 
 
 The Letters of Credence are the document which 
 the Public Minister presents upon his formal reception 
 by the Sovereign to whom he is accredited, but he 
 cannot require to be solemnly received for the pur- 
 pose of presenting his Credentials before he has de- 
 livered an authentic copy of them to the Minister or 
 Secretary of State for Foreign Affairs, in order that 
 he may satisfy himself that they are fit and proper 
 Letters for his Sovereign to receive. Letters of Cre- 
 dence addressed to a Sovereign Prince must be pre- 
 sented of Right to the Sovereign himself even during 
 his minority, and although the Government of the 
 State is entrusted to a Regent. Such was the prac^ 
 tice in France during the minority of Louis XV. and 
 the Regency of the Duke of Orleans, and such was 
 in very recent time the practice observed in Spain** 
 " Ch. de Martens, Guide Diplomatique, Tom. 'I. § i8. 
 
Powers. 
 
 358 BIGHT OF LEGATION. 
 
 during the minority of Queen Maria Isabella and the 
 Kegency of the Duke of Yittoria. Letters of Cre- 
 dence expire upon the demise either of the Chief of 
 the State by whom they were furnished, ' or of the 
 Chief of the State to whom they are addressed. 
 Fresh Letters of Credence must be presented, if a 
 Public Minister be promoted by his Sovereign from 
 a lower to a higher Order, as for instance, if he 
 should be raised from the rank of Envoy Extraor- 
 dinary and Minister Plenipotentiary to that of Am- 
 bassador. 
 Fuu § 213. Although the Letters of Credence, which are 
 
 presented by a Diplomatic Agent accredited to reside 
 at a Foreign Court, imply General Full Powers on his 
 part to transact aU political business on behalf of his 
 Constituent, it is usual nevertheless, if any Special 
 Treaty or Convention is to be negociated, to furnish 
 the Diplomatic Agent with a Mandate or Instrument 
 of Full Powers to negociate and conclude the par- 
 ticular Treaty or Convention. The Mandate (Manda- 
 tum Procuratorium), or, as it is commonly termed, the 
 Full Powers (les pleins pouvoirs), are always set forth 
 in Letters Patent of the Sovereign, which are signed 
 and sealed according to the form which prevails in 
 each State in regard to Letters Patent. The Full 
 Powers granted by European Sovereigns are for the 
 most part signed by the Sovereign, and countersigned 
 by the Minister or Secretary of State for Foreign 
 Affairs. 
 
 A Mandate of Full Powers may be a Mandate ad 
 hoc, hmited to the particular business of the negocia- 
 tion or treaty (pouvoirs sp^ciaux,) or it may be a 
 Mandate to treat generally with the Ministers of aU 
 Powers and States within the dominion of the Sove- 
 reign to whom the Minister is accredited (pouvoirs 
 
RIGHT OP LEGATION. 359 
 
 g6n6raux), or it may extend still further, and may be 
 a Mandate to treat with all Powers or States (pouvoirs 
 illimit^s). Limited Full Powers are generally given 
 to a Diplomatic Agent where the object of the 
 negociation is a particular treaty with a particular 
 Power. General Full Powers on the other hand are 
 given, whenever there is a Congress of Ministers Ple- 
 nipotentiary nominated by various States, and when 
 it may be uncertain what Powers or States may take 
 part in the Congress. Unlimited Full Powers are 
 more rare, and are only given when it is uncertain 
 not only what Powers and States may take part 
 in a Congress, but where such Congress may be 
 held or adjourned to, and what matters may come 
 under discussion and negociation. Thus unlimited 
 Full Powers were given by the Queen of England to 
 the British Diplomatic Agents, who concluded the 
 negociations on behalf of the British Crown at the 
 Congress of Paris in 1856. M. de Garden*^ says 
 correctly that such FuU Powers are extremely rare. 
 Publicists seem to speak of such Full Powers as not 
 in use in the present day. Thus Ch. de Martens** 
 says, " n n est plus d' usage de munir un Ministre du 
 Plein Pouvoir, qui I'autorisait k traiter avec toutes 
 les Puissances, et que Ton appelait ' actus ad omnes 
 populos.'" Sir Eobert Phillimore*'', on the other 
 hand, construes this Latin phrase as equivalent to 
 "Letters accrediting the bearer to all Courts." If 
 this interpretation be correct, there is no doubt that 
 such Letters of Credence are not in present use, but 
 it seems doubtful from the instances cited by Ch. de 
 Martens whether the Latin phrase is to be inter- 
 
 *° Traits Complet de Diplomatie, T. II. p. 48. 
 " Guide Diplomatique, I. c. 4. § 19. 
 *^ Commentaries, XI. § 230. 
 
360 RIGHT OF LEGATION. 
 
 preted in such a sense, inasmuch as Ch. de Martens 
 alludes, in illustration of his remark upon the disuse 
 of such Full Powers, to a Full Power granted by 
 Queen Anne of England to her Secretary d'Ayrest, 
 then British Eesident at the Hague, whereby he 
 was authorised to treat with the Ministers of ail 
 Princes and States interested in the negociations 
 of the Peace of Utrecht *l Such a Full Power is 
 evidently not more extensive than the Full Powers 
 which are in use, when occasion requires them, in 
 the present day, and which are quite distinct from 
 Koving Letters of Credence. Thus Full Powers 
 were given by the First Consul Napoleon to General 
 Augereau to make peace with the Sovereign Princes 
 of Germany, and to treat with the States of the 
 Germanic Empire. By virtue of such Full Powers 
 General Augereau entered into separate negociations 
 and concluded separate Treaties with individual Princes 
 and States of that Empire, according as he found any 
 of them favourably disposed to his proposals of Alli- 
 ance or of Neutrality *^. 
 instruc- f 214. Every Diplomatic Agent is furnished by his 
 own Government with Instructions as to the object 
 of his Mission and for the guidance of his conduct. 
 These Instructions are sometimes given orally, but 
 more generally in writing, so that the Agent may be 
 able to refer to them from time to time as occasion 
 may require. The Instructions, being for his own 
 guidance, ought to be kept secret by him, unless he is 
 expressly authorised by his Government to communi- 
 cate them in part, or in extenso. The duty of every 
 Diplomatic Agent is to conform his conduct to his 
 
 *' Lamberty, M^moires, T. lique Fraagaise et divers Princes 
 VIII. p. 742. d'Allemagne (14 Septfe, i8oo.) 
 
 *" Conventions entre la Il6pub- Martens, Kecueil, VII. p. iiz. 
 
 tions, 
 
EIGHT OF LEGATION. 361 
 
 Instructions, unless it should happen from unforeseen 
 circumstances, that a strict compliance with them 
 would defeat the object of his Mission, or otherwise 
 lead to consequences prejudicial to the interest of 
 his Constituent. Under such circumstances it may 
 become his duty to suspend the execution of his 
 Instructions, or even to deviate from them, provided 
 he does not engage his Government to any measure 
 opposed to its general Policy or conflicting with the 
 special object of the Negociations, with which he has 
 been instructed. If questions should arise upon which 
 a Public Minister is without Instructions, it is his 
 duty to refer them to his Government, in other words 
 to entertain all propositions or overtures ad referen- 
 dum. If the case is urgent, and the time does not 
 admit of referring to his Government for Instructions, 
 it is his duty either to reject all overtures absolutely, 
 or, if he entertains them, to accept them explicitly sub 
 Sfe rati. This latter form, however, has now nearly 
 passed out of use, since there is for the most part an 
 express provision in every Treaty which is concluded 
 by Diplomatic Agents, that the Eatifications of the 
 Contracting Powers shall be exchanged within a 
 certain number of days, it being thereby implied that 
 the Treaty-Engagements do not acquire fuU force and 
 effect, unless sanctioned by the Eatifications of the 
 Parties upon whom the fulfilment of their provisions 
 will devolve. 
 
 The practice of inserting in the body of a Treaty a 
 provision as to Eatification has been adopted ex majori 
 cautela to prevent any dispute as to the necessity of 
 Eatification, as Publicists are by no means of accord 
 on this subject. Grotius^" and Puffendorf^^ hold, that 
 
 ^^ De Jure B, et P., L. II. c. " Law of Nature and of Na- 
 II. § 12. tions, L. III. c. 9. § 2. 
 
362 RIGHT OP LEGATION. 
 
 the act of a Diplomatic Agent, if it is within the 
 scope of his Full Powers, binds his Constituent abso- 
 lutely upon the analogy of the Roman Law as to the 
 Contract of Mandatum. Their doctrine is upheld by 
 VatteP^ and Klliber^^ Bynkershoek^*, on the other 
 hand, maintains that the Usage of Nations requires 
 a Eatification from the Sovereign in order to give 
 validity to a treaty concluded by his Minister in 
 every instance, except in the very rare case where the 
 entire Instructions are contained in Special Full 
 Powers, and that the analogy of the Eoman Law is 
 not to be considered an unerring guide in this matter, 
 as the Practice of Nations has intervened and has 
 excepted International Compacts in this respect from 
 the Rules of Civil Jurisprudence. The reason of this 
 apparent anomaly of a Constituent not being bound 
 by the act of a duly authorised Agent, will be more 
 fully discussed in the next following chapter upon the 
 Eight of Treaties : it may be sufficient for the present 
 moment to observe, that for the sake of the business 
 itself of negociating successfully, it has become the 
 Practice of Nations to give as extensive and general 
 Full Powers as possible to Diplomatic Agents, even to 
 the extent of a promise to ratify, in order that they * 
 may be able to do and to agree to all that their 
 Constituents could do or agree to. The exercise, 
 however, of these Powers is in practice understood to 
 be regulated by Secret Instructions under the further 
 control of Non-Ratification. The Non-Eatification of 
 Preliminaries under the circumstances of such large 
 
 ^^ Droit des Gens, L. II. c. 12. fere, ut dixi, praebent, quam 
 
 § 156. potestatem agendi, minime vero 
 
 '' Droit des Gens, Partie II. agendi ex arbitrio contra ipsa 
 
 T. II. § 142. Principis mandata secretiora. 
 
 ^ Mandata ilia Generalia, ut Quaest. Jur. Publici, L. II. 
 
 nunc sunt Gentium mores, nihil c. 7. 
 
EIGHT OF LEGATION. 363 
 
 Powers is not considered to involve any breach of the 
 Law of Nations. 
 
 J 215. The Ceremonial to be observed in the recep- Ceremo- 
 tion of a Foreign Minister at the Court to which he Sption!'^' 
 is accredited has undergone great modifications within 
 recent times. It was one of the regulations which 
 were adopted by the Congress of Vienna, (anno 18 15,) 
 that an imiform mode of reception for Diplomatic 
 Agents of each class should be established in each 
 State ; and although this provision has not been 
 literally carried into execution, the practice of Nations 
 has conformed itself to the spirit of it. Whatever be 
 the rank or class of a Public Minister, it is his first 
 duty to notify his arrival immediately to the Minister 
 or Secretary of State for Foreign Afiairs of the Sove- 
 reign to whom he is accredited. In the case of an 
 Ambassador, as distinguished from a Diplomatic Agent 
 of the Second Class, it was formerly the practice for 
 him to make a Solemn Entry into the city, which 
 was the residence of the Sovereign or the seat of his 
 Government. This ceremony may now be regarded 
 as fallen into general desuetude, as far as regards the 
 mutual intercourse of the Christian Powers of Europe. 
 The Solemn Entry was part of the pageant, which 
 terminated in a Pvhlic Audience, in which the Am- 
 bassador presented his Letters of Credence to the 
 Sovereign in person. Ambassadors, as distinguished 
 from Ministers of the Second Class, have always been 
 entitled to demand a Public Audience of the Sove- 
 reign, but the Solemn Entry appears to have been a 
 Ceremony which was within the discretion of the 
 Sovereign, who receives the Embassy, to accord or 
 not at his pleasure ; and we find accordingly, that 
 both the Holy See and the Ottoman Porte had spe- 
 cial rules of practice, under which the Solemn Entry 
 
364 RIGHT OF LEGATION. 
 
 was granted only to the Ambassadors of particular 
 Nations. 
 
 With regard to the Public Audience, which is 
 granted to Ambassadors and Nuncios on their arrival, 
 and sometimes on their departure, the same Ceremony 
 is observed to all alike. The Introducer of Ambassa- 
 dors, or the Master of the Ceremonies, proceeds in a 
 State carriage of the Sovereign drawn by six horses 
 to the Hotel of the Ambassador, and conveys him to 
 the Palace of the Sovereign, where he is received in 
 the presence of the great Officers of the Court, with 
 the same honours which would be paid to the Sove- 
 reign, if present, whom he represents. The Ambas- 
 sador then reads a Speech of Audience in which he 
 refers to his Letters of Credence, which he thereupon 
 takes from the hands of his Secretary of Embassy, 
 who attends him on such occasions, and presents to 
 the Sovereign, who hands them to the Minister or 
 Secretary of State for Foreign Affairs. The Sove- 
 reign then reads an answer to the speech of the 
 Ambassador, who thereupon retires from the presence 
 of the Sovereign with the same forms with which he 
 entered the Presence-Chamber. The Ceremony of a 
 Public Audience has of late been frequently dispensed 
 with at the Court of St. James' on occasions of the 
 reception of an Ambassador from an European Sove- 
 reign, and on such occasions a Private Audience has 
 been substituted of a similar kind to that which is 
 accorded to a Foreign Minister of the second or third 
 class. Such an audience, however, is not altogether 
 free from Ceremony. The Sovereign receives the 
 Ambassador in the presence of the Minister or Secre- 
 tary of State for Foreign Affairs, and the Introducer 
 of Ambassadors or the Master of the Ceremonies at- 
 tends to present in due form the Ambassador, who 
 
EIGHT OF LEGATION. 365 
 
 makes a short speech explanatory of his Mission, and 
 having presented his Letters of Credence to the 
 Sovereign, retires. 
 
 §216. It being necessary that Nations should treat The Sacred 
 and hold intercourse with one another in order tOofaTlm- 
 adjust disputes and maintain relations of amity, and i^assador. 
 it being impossible for a Nation collectively to treat 
 with another Nation, there results a necessity for 
 Nations to delegate Agents on their behalf, and to 
 furnish them with full Powers to negociate and settle 
 the matters which may be at issue. The Right of 
 Embassy being thus established, the inviolability of 
 the person of the Ambassador is a necessary conse- 
 quence ; for if the person of the Ambassador is not 
 secure from violence of every kind, the Eight of Em- 
 bassy becomes precarious and the channels of Inter- 
 national Reconciliation will be closed. Vattel^^ ac- 
 cordingly derives the independence and inviolability 
 of the Ambassadorial character from the Natural and 
 Necessary principles of the Law of Nations. This 
 attribute of inviolability is so absolute, that the per- 
 son of an Ambassador is held to be sacred. " Sanctum 
 inter gentes jus legationum, sancta corpora legato- 
 rum^*." Bynkershoek ^^ accounts for the peculiar 
 sacredness of the person of the Ambassador on the 
 ground that an Ambassador represents his Sovereign, 
 and that he is the Minister of peace and alUance, and 
 that without his agency the Society and Repose of 
 Nations could not be maintained. 
 
 ^217. The inviolability of the person of an Ambas- His Ex- 
 sador entails, as a necessary incident, his entire ex- *^™'°"^ 
 emption from the Territorial Jurisdiction of the Sove- 
 
 "DroitdesGens,L.VII.§8i, ^^ Grotius, De Jure Belli et 
 103. Kluber, § 103. Hefter, Pacis, L. I. c. 18. § i. 
 § 205. " De Foro Legatorum, e. 5. 
 
306 RIGHT OF LEGATION. 
 
 reign to whom he is accredited. This exemption, 
 which applies to the civil as well as the criminal 
 law of .the Territory, is founded upon considerations 
 not of mere convenience but of necessity; for an 
 Ambassador ought to be protected from every kind 
 of compulsion, as well from that which relates to 
 things necessary to him, as from that which touches 
 his person, in order that his security may be com- 
 plete^*. The fiction of Ex-territoriality has been 
 accordingly introduced with a view to express in the 
 most forcible manner the completeness of this exemp- 
 tion. According to this fiction the Public Minister, 
 although de facto resident in a foreign country, is 
 regarded as de jure resident within the territory of 
 the Nation which he represents, and he continues to 
 be subject to the Laws of his own country in all 
 matters which concern his Personal Status and Pro- 
 perty ^^ 
 
 The Right of Personal Inviolability attaches to a 
 Public Minister from the time when he enters the 
 territory of the State to which he is accredited, if 
 notice of his Mission has been previously communi- 
 cated to it, to the time when he quits the territory, 
 although war should have actually broken out be- 
 tween his own Nation and the State to which he is 
 accredited before he has taken his departure. The 
 Ottoman Porte in this respect has conformed its prac- 
 
 °' Nam omnis coactio abesse territorio subjicit, exceptionem 
 
 a legato debet, tam quse res ei pateretur in legatis, ut qui sicut 
 
 necessarias, quam quse personam fictione quadam habentur pro 
 
 tangit, quo plena ei sit securitas. personis mittentium, ita etiam 
 
 Grotius, De Jure Belli et Pacis, fictione simili constituerentur 
 
 L. II. c. 1 8. § 9. quasi extra territorium ; unde 
 
 "" Quare omnino ita censeo, et civili jure populi, apud quem 
 
 placuisse gentibus ut communis vivunt, non tenentur. Grotius, 
 
 mos, qui quemvis in alieno De Jure Belli et Pacis, L. II. 
 
 territorio existentem ejus loci c. 18. § 4, 5. 
 
RIGHT OF LEGATION, 367 
 
 tice to that of the Christian Powers of Europe. It 
 was formerly the rule of the Porte, if war broke out 
 between it and a Christian Power, to imprison the 
 Diplomatic Agent of that Power in the Castle called 
 the Seven Towers, untU peace was reestablished. 
 The Porte first waived this practice when the war 
 broke out with Russia, which was terminated by the 
 peace of Bucharest (28 May, 181 2). In the course 
 of the conferences which preceded the departure of 
 the Ambassadors of France, Great Britain and Russia, 
 in the year 1827, the Porte formally declared to the 
 Ministers of Austria and Prussia that the Seven 
 Towers no longer existed'". 
 
 § 218. The same reasons which warrant the In-Ex-ter- 
 dependence and Personal Inviolability of an Ambas- "f'the'Am- 
 sador, concur likewise in securing the sanctity of his ^sador's 
 abode. The general consent of Nations has accord- ofhisSuite. 
 ingly extended in practice the fiction of Ex-terri- 
 toriality to the Hotel of the Ambassador; which is 
 not merely protected by the positive Law of Nations 
 from all lawless outrage, but is inaccessible to the 
 ordinary officers of Justice or of Revenue". The 
 Ex-territoriality of the Ambassador's Hotel is how- 
 ever not so absolute as to constitute it an asylum 
 for others than those, who form the suite of the Am- 
 bassador himself. Bynkershoek ^^ has discussed the 
 Right of Asylum for all who take refuge in the Hotel 
 of an Ambassador, which Grotius'^ has pronounced to 
 be a privilege depending upon the concession of the 
 State wherein the Ambassador resides, and not to be 
 a part of the Law of Nations ; and Bynkershoek has 
 correctly pointed out, that all the privileges of Am- 
 
 ^ Ch. de Martens, Guide *^ Bynkerslioek, De Foro Le- 
 
 Diplomatique, § 23. gatorum, c. 21. 
 
 "> Vattel, Droit des Gens, *' Grotius, De Jure Belli et 
 
 L. IV. 0. 9. § 117. Pacis, L. II. c. 18. § 8. 
 
368 EIGHT OP LEGATION. 
 
 bassadors have one and the same object in view; 
 namely, to enable them to discharge the duties of 
 their office without impediment or restraint; and 
 that it is not necessary for the discharge of their 
 duties that they should afford shelter from justice to 
 third parties, who are not connected with the end and 
 objects of the Mission. The limits, within which 
 an Ambassador may claim the privilege of Ex-terri- 
 toriality, in regard to his own Personal Suite, are 
 within the discretion of the Ambassador, the privi- 
 lege in regard to his own Personal Suite being 
 granted for the convenience of the Ambassador him- 
 self ; but an Ambassador cannot waive, at his discre- 
 tion, the privilege of Ex-territoriality in regard to 
 any members of his Official Suite; that is, of any 
 officer of his Household appointed by the Sovereign 
 himself. The Chief of the State alone may waive 
 the privilege of Ex-territoriality on behalf of the 
 Ambassador and the personnel of the Embassy. It 
 is not even competent for any of these individuals 
 to waive at their own pleasure this privilege^*, for it 
 is not their personal privilege, but the privilege of the 
 Independent State or Nation which they represent. 
 Difficulties have occasionally arisen, from persons 
 claiming without sufficient warranty, to belong to 
 the Suite of a Foreign Minister, and the usage of 
 most Nations now requires, that an official list of aU 
 the members of the Suite of a Eoreign Minister shall 
 be transmitted to the Minister or Secretary of State 
 for Foreign Affairs at fixed periods *®- 
 TheAm- $219. It follows from the principle of Ex-terri- 
 juriadk-^ toriality, that a Foreign Minister is at liberty to exer- 
 
 " Vattel, L. IV. c. 8. § 3. «= Wheaton's Elements, Part 
 Bynkershoek, De Foro Legato- III. c.i. §16. Phillimore's Corn- 
 rum, c. 23. mentaries, T. II. § 188. 
 
EIGHT OF LEGATION. 369 
 
 cise Criminal and Civil jurisdiction over the personnel tion over 
 of the Embassy, if he be so empowered by his own son» Jof 
 Nation. It rests accordinffly with the discretion of?'®^'"" 
 the Sovereign Power, which accredits an Ambassador, 
 to invest him with such Jurisdiction. It is customary 
 in Civil matters for a Foreign Minister to be invested 
 with, and to exercise, jurisdiction in all questions 
 which may. arise amongst the members of his Official 
 Suite, or between them and the citizens or subjects of 
 the country to which he is accredited ; but it is not 
 the usage for him to exercise jurisdiction in criminal 
 matters, over any person officially attached to the 
 Embassy further than by arresting the offender and 
 sending him for trial back to his own country. In 
 the case of his own Personal Suite, a Foreign Min- 
 ister may, if he pleases, upon complaint made to 
 him, dismiss any individual from his service, and so 
 withdraw from him the protection to which he would 
 be entitled under the Law of Nations, if he continued 
 in his service. 
 
 § 220. There are some exceptions to the privilege LiabUity 
 of Ex-territoriality as applied to the Hotel of an b^^rto 
 Ambassador. A Foreign Minister is privileged from ^^,^^7/ 
 being called upon to contribute personally to the i-ooai dues. 
 General Taxes of a Country; that is, to such Taxes 
 as are levied by the Government, and which are 
 available for the General purposes of the State, in 
 which the Ambassador is not interested. But a 
 Foreign Minister is not exempt from the payment of 
 Local dues, which are raised for purposes of Local 
 administration, and which are expended on Local 
 objects, from which he himself, in common with his 
 neighbours, derives immediate benefit. Thus he is 
 liable to pay the Local Rates ^^ assessed upon his 
 
 '° This liability has been sometimes disputed, and Klviber holds 
 PAKT I. B b 
 
370 EIGHT OF LEGATION. 
 
 Hotel, or its site, for sewerage, lighting, watching, 
 and similar objects". He is also liable to pay tolls for 
 the use of roads and bridges, and also for the carriage 
 of his letters, if they are conveyed to him by the 
 Local Post ; and as he is at liberty at aU times, if he 
 pleases, to send his letters by a privileged Courier, it 
 is therefore optional for him to employ the services of 
 the Local Post, and if he employs it, he derives imme- 
 diate advantage therefrom ^^. 
 Liberty of § 221. Another and more important exception to 
 worSap! the privilege of Ex-territoriality, is found in the 
 exercise of Religious Worship (Culte Religieux) in 
 the Hotel of an Ambassador. A Foreign Minister 
 has not the right of maintaining a Chapel and a 
 Chaplain within his Hotel, xmder the Common Law 
 of Nations*'; and accordingly, we find the hberty of 
 Beligious Worship for the Ambassador and his Suite, 
 made a matter of Treaty-engagement between the 
 
 it to be doubtful, whether such the tendency in the present day 
 Rates can be rightfully exacted, is to uphold the liability of a 
 if the Ambassador is unwilling to Foreign Envoy to pay Local 
 pay them. Wheaton considers dues, from which he and the 
 the Ambassador's Hotel to be inhabitants of his Hotel derive 
 subject to taxation, in common immediate benefit. Such is the 
 with the other Eeal Property of practice in Germany, whilst in 
 the Country. A practical diffi- Sweden a Foreign Envoy is 
 culty will always be found in exempt from every kind of tax, 
 levying them, as the Person and but then the supply of water 
 Property of the Ambassador is and light to his hotel is a matter 
 exempt from the Jurisdiction of of private contract. In the case 
 the Civil Tribunals, which must of some of the parishes in West- 
 be appealed to in order to minster there are private Acts 
 enforce payment in the last of Parliament under which the 
 resort. proprietor of a house, which is 
 " No uniform rule can be leased to a Foreign Envoy, is 
 said to exist on this subject, as made personally Uable to pay 
 the circumstances under which the local Rates, 
 water and light are supplied to °' Ch. de Martens, Guide Di- 
 the Ambassador's Hotel may plomatique, § 109. 
 vary in different countries, but *' Martens, Precis, § 222. 
 
RIGHT OP LEGATION. 371 
 
 Roman Catholic and Protestant Powers of Europe, 
 subsequently to the Eeformation; and between the 
 Christian and Mahommedan Powers at all times since 
 Diplomatic intercourse was established between them. 
 There are some countries in which, under the Terri- 
 torial Law, aU forms of Religious Worship are per- 
 mitted, in which case no Treaties are required : there 
 are others, in which one form of Religious Worship is 
 established, and none other is tolerated. In such 
 cases it has been usual to stipulate by Treaty for the 
 free exercise of Religious Worship, on behalf of the 
 members of the Embassy and the Suite of the Am- 
 bassador within the Hotel of the Embassy. It has 
 been an iavariable rule to concede this privilege, 
 whenever there has been no public place of Religious 
 Worship at the seat of the Embassy, which its mem- 
 bers could attend, as being in accordance with their 
 Religious Creed ; or wherever there has not been 
 within the Hotel of another Ambassador accredited 
 to the same Court a Chapel, in which such Rehgious 
 Worship has been already permitted. Thus, as soon 
 as the Emperor Joseph II had granted liberty of Re- 
 ligious Worship to the Protestants of the Confession 
 of Augsburg resident in Vienna, he insisted upon the 
 discontinuance of Religious Worship in the Chapels 
 of the Legations of the Protestant Princes of the 
 Germanic Empire'"'. Grotius is altogether silent on 
 this subject, but his silence has not any significance, 
 seeing that in his day a Resident Embassy (Assidua 
 Legatio) was altogether a novelty, and it had not 
 any warrant of ancient Custom ''\ At the time, how- 
 ever, when Vattel wrote his work on the Law of 
 
 " Kluber, Droit des Gens, " Grotius, De Jure Belli et 
 § 215. Ch. de Martens, Guide Pacis, L, II. c. 18. § 3, 2. 
 Diplomatique, § 35. 
 
 B b 2 
 
372 RIGHT 01" LEGATION. 
 
 Nations, the free exercise of Eeligion was a privilege 
 allowed to a Foreign Minister in almost every country. 
 Vattel speaks of it as resting on established Cus- 
 tom". " It is indeed highly proper," he says, "that a 
 Minister, and especially a Eesident Minister, should 
 enjoy the free exercise of his Religion within his own 
 house, for himself and his Suite. But it cannot be 
 said that this Right, Hke those of Independence and 
 Inviolability, is absolutely necessary for the success 
 of his Mission, particularly in the case of a tem- 
 porary Minister, the only one whom Nations are 
 bound to admit. The Minister may in this respect 
 do what he pleases in his own house, into which 
 nobody has a right to pry or to enter. But if the 
 Sovereign of the Country, where he resides, should 
 for substantial reasons refuse him permission to prac- 
 tise his Religion in any manner which might render 
 it an object of Public notice, we must not presume to 
 condemn the conduct of that Sovereign, much less to 
 accuse him of violating the Law of Nations. Ambas- 
 sadors are not debarred at present from the free exer- 
 cise of their Religion in any civilised country ; for a 
 privilege, which is founded on Reason, cannot be re- 
 fused when it is not attended with any evil conse- 
 quences." The practice of nations since the time of 
 Vattel has become still more courteous''^, and has gra- 
 dually extended the privilege of Religious Worship 
 to the establishment of public Chapels, attached to 
 the several foreign Embassies ; so that although the 
 privilege of a Chapel within the Hotel of the Ambas- 
 sador is a matter of Comity, and not of strict Eight, 
 still the custom of permitting it has become so uni- 
 
 '^ Vattel, Droit des Gens, plomatique, § 35. Wheaton's 
 L. IV. § 104. Elements, Part III. c. i. § 21. 
 
 " Ch. de Martens, Guide Di- 
 
RIGHT OF LEGATION. 373 
 
 versal, that to refuse such permission in the present 
 day would be little less discourteous, than to reftise 
 to permit the continuous Residence of the Ambas- 
 sador himself. The privilege of a Chapel, however, 
 does not extend to the use of bells, or to any pubhc 
 processions or ceremonies outside the walls of the 
 Chapel. 
 
 §222. Jurists are divided in opinion upon the question inyioia- 
 whether an Ambassador is by the Law of Nations en- AiibUs a^" 
 titled of Eight to Safe Conduct whilst passing through t^^'o^gf "^ 
 the territory of a third Power, on his way to or from the tem- 
 the territory of the Nation to which he is accredited, third* 
 Grotius'* does not expressly determine this question, ^°'^®'^' 
 when he says, that " the law respecting the Inviola- 
 bility of Ambassadors is to be understood as binding 
 upon the Nation to whom the Embassy is sent, more 
 particularly if it has received the Embassy, as from 
 that time a tacit Compact may be considered to have 
 been introduced." Bynkershoek, on the other hand, 
 holds in terms, that the privilege of the Ambassa- 
 dorial Character is only operative within the State to 
 which he is accredited, and he cites in support of his 
 view the opinions of Gentilis, Zouch, Huber, and 
 Wicquefort. Bynkershoek '* admits however that the 
 opinions of the more ancient writers upon the Rights 
 of Ambassadors were in a contrary sense. Vattel, on 
 the other hand, draws a distinction between the enjoy- 
 ment of all the Eights annexed to the Diplomatic Cha- 
 racter, and the enjoyment of Personal Inviolability. 
 It must be borne in mind, that many of the Rights 
 now recognised as incident to the Right of Embassy, 
 have only been so recognised, since the practice of 
 accrediting Resident Ambassadors has given occasion 
 
 ''* Grotius, De Jure Belli et " Bynkershoek, De Foro Le- 
 Pacis, L. II. e. i8. § 5. gatorum, c. 9. § 7. 
 
374 EIGHT OF LEGATION. 
 
 for their recognition, "It is true," says Vattel", 
 " that the Prince alone to whom the Minister is'sent 
 is obliged and specially engaged to secure to him the 
 enjoyment of all the Rights attached to his Character; 
 but the others, over whose territory he passes, cannot 
 refuse to him that to which the Minister of a Sove- 
 reign is entitled, and which Nations owe reciprocally 
 to one another. They owe to him above all things 
 perfect Personal Security. To insult him would be 
 to injure his Master and the whole Nation to which 
 he belongs : to arrest him and offer violence to him 
 would be to impair the Eight of Embassy, which ap- 
 pertains to all Sovereigns." Merlin", Klliber''^, Ch. de 
 Martens'^ and Wheaton*", support Vattel's opinion, 
 and Merlin disputes with good reason the interpreta- 
 tion, which Bynkershoek has assigned to the word 
 fasserende, which occurs in an Edict of *the States 
 General (anno 1679) issued on the oecasion of the 
 Negociations for the peace of Nimeguen. The Edict 
 announced that the persons, domestics, and effects of 
 foreign Ambassadors or Ministers, "Mer te lande 
 komende, residerende, of ^asserende," should be ex- 
 empted from arrest. Bynkershoek considers this 
 Edict as having reference only to foreign Ministers 
 accredited to the States General, and construes the 
 word ^asserende as referring not to those who might 
 have landed in the territory of the States General, 
 and were passing through it on their way to the ter- 
 ritory of a third Power, but to those who were about 
 to leave the territory of the States General, having 
 been accredited to them as Resident Ministers. " Non 
 
 "" Droit des Gens, L. IV. c. 8, ■" Droit des Gens, 204. 
 
 § 84. " Guide Diplomatique, § 36. 
 
 " E^pertoire, tit. Ministre "" Elements, Part III. § 20. 
 Publique, Sect. V. § 3. 
 
RIGHT OF LEaATION. 375 
 
 interpreter," are his words, "de legatis transeuntibus, 
 sed abeuntibus." Merlin in reviewiag Bynkershoek's 
 interpretation maintains, that passerende, being the 
 Dutch equivalent of the French word passer, is appli- 
 cable only to a person who, having arrived at a place, 
 proceeds onward to another place, and is never used 
 to designate a person who is leaving a place where 
 he has been residing, and going back to the place 
 from which he first came. Merlin however very justly 
 remarks, that when it is said that an Ambassador is 
 entitled to have his Independence respected in every 
 territory through which he passes, it must be under- 
 stood that he travels under the avowed character of 
 an Ambassador; in other words, that his passport cer- 
 tifies his Public Character. If an Ambassador, who is 
 in itinere, presents such a passport at the frontier of a 
 State other than that to which he is accredited, and is 
 thereupon allowed to enter its territory, the good 
 faith of the Sovereign of that State becomes pledged 
 to respect his OflScial Character, as long as he does 
 nothing inconsistent with perfect good faith on his 
 own part. A Nation is at liberty to refuse a passage 
 through its territory to a foreign Minister accredited 
 to a third Power, precisely as a Nation is entitled to 
 refuse altogether to receive a foreign Minister accre- 
 dited to itself, but, if it allows him upon knowledge 
 of his Character to enter its territory, it may not 
 maltreat him nor suffer any violence to be offered to 
 his Person, 
 
 The reasons assigned by Bynkershoek for restrict- 
 ing the privilege of the Ambassadorial Character are 
 thus stated, "quia ilia privilegia voluntatis tacitae 
 sunt post admissum legatum, et legatum etiam repel- 
 lere licet, neque legatio inter ahos, quam qui misit et 
 ad quern mittitur, versatur." On examining these 
 
376 EIGHT OF LBGAflON. 
 
 reasons, it will be found that the principle involved 
 in the first reason does not militate against Vattel's 
 view, if the Ambassador travels with a passport which 
 certifies his Ofl&cial Character, as every State, through 
 whose territory he proposes to pass, is at liberty to 
 decline to admit him in such Character, and his ad- 
 mission is thus a Voluntary act upon its part ; on 
 the other hand, the second reason, whilst it may be a 
 valid reason so far as Eesident Embassies and the 
 secondary rights of Embassy incidental to Eesidence 
 are concerned, is inconsistent with the fact that the 
 person of the Courier who is the bearer of the de- 
 spatches of a Foreign Minister is sacred under the Law 
 of Nations, whilst he is passing through the territory 
 of a Power to whom the Minister is not accredited, if 
 the Official Character of the Courier is certified by his 
 passport. The Eight of Innocent Passage, in regard 
 to an Ambassador on his way to the Court to which 
 he is accredited, is a Right in which all Nations are 
 interested. It may be said of the disputes of Nations 
 as of individuals, " Rei Pubhcse interest ut finis sit 
 litium." It is in the common interest of Nations that 
 the peace of the World should be maintained, and 
 the Personal Inviolability of the Ambassador, whose 
 Mission is essentially that of Peace, is as necessary 
 for that end, when he is passing on his way to his 
 destination, as when he has reached his post. Vattel'^ 
 holds that Francis I of France was justified not 
 merely in declaring war against the Emperor Charles 
 V, by reason of the murder of his Ambassadors, accre- 
 dited respectively to Constantinople and to Venice, 
 whilst passing through the Duchy of Milan, but in 
 calling in the aid of other Nations, since it was not a 
 Private Eight of a particular Nation which was in 
 " Droit des Gens, L. IV. c. 7. § 84. 
 
EIGHT OF LEGATION. 
 
 377 
 
 dispute, but a matter which involved the Eight of all 
 Nations, since they are aU interested in maintaining 
 the Sacred Bight of Embassy and of those means 
 which enable them to hold communication with each 
 other and to treat of their Commercial interests ^\ 
 Wheaton, who, as already observed, supports the views 
 of Vattel and Merlin, remarks, that the Inviolability 
 of a public Minister in his passage through the terri- 
 tory of a third Power depends upon the same principle 
 which protects the person of his Sovereign coming 
 into the territory of a friendly State by the permission, 
 express or implied, of the local Government. Both 
 are equally entitled to the protection of that Govern- 
 ment against every act of violence and every species 
 of restraint inconsistent with their Sacred Character *^. 
 
 '^ The cases of tlie Due de 
 Belle Isle, Ambassador of France 
 to Prussia, arrested in Hanover 
 on his way to Berlin, and of the 
 Marquis de Monti, Ambassador 
 from France to Poland, arrested 
 in Dantzig on his way back to 
 France, which are sometimes 
 quoted as examples of the prac- 
 tice of Nations in accordance 
 with Bynkershoek's view, will be 
 found on examination to be in- 
 stances of enforcing a strict Eight 
 of War. The details of each case 
 will be found in the collection of 
 Causes C61febres du droit des 
 Gens, par Ch. de Martens, Tom. 
 I. pp. 210, 285. 
 
 ^' To the two cases above 
 mentioned may be added that 
 of the Earl of Elgin, Ambas- 
 sador from Great Britain to the 
 Ottoman Porte, who was arrested 
 in his lodgings at the Hotel de 
 Eichelieu in Paris by order of 
 the First Consul in 1 803, imme- 
 
 diately upon the rupture of the 
 Peace- of Amiens. Lord Elgin 
 was on his way home from Con- 
 stantinople at the time of his 
 arrest, and was not released until 
 the end of the war. This was 
 an extreme instance of the ex- 
 ercise of the summwm jus of a 
 belligerent, inasmuch as Lord 
 Elgin had furnished passports 
 to all the French prisoners in 
 Turkey during the campaign of 
 Egypt in 1801, and they had 
 reached France unmolested by 
 the British cruizers solely in 
 virtue of Lord Elgin's passports. 
 For the general history of the 
 arrest and detention of British 
 subjects on this occasion, see the 
 author's volume on the Rights 
 and Duties of Nations in Time 
 of War, 2nd edition, Oxford and 
 London, 1875, p. 95. The First 
 Consul offered to exchange Lord 
 Elgin for a French General 
 Officer, but the British Govern- 
 
378 RIGHT OF LEGATION. 
 
 " We have used," says Wheaton, " tte term permis- 
 sion, express or implied, because the public minister 
 of a Sovereign Prince accredited to one country, who 
 enters the territory of another country making known 
 his Official Character in the usual manner, is as much 
 entitled to avail himself of the permission, which is 
 implied by the absence of any prohibition, as the 
 Sovereign himself in a similar case**." 
 Consuls ^223. The Institution of Public Consulates in Fo- 
 
 matio'^° reign Countries (Consulats h, I'Etranger) dates from 
 Agents, ^jjg Sixteenth Century, although the name of Consul, 
 as applied to an Officer exercising jurisdiction in Com- 
 mercial matters, was in familiar use in the cities of 
 the Mediterranean and in the Hanse Towns since the 
 Thirteenth Century *^. The Judge-Consul was ori- 
 ginally a local Officer annually elected in each great 
 City of Maritime Commerce by the members of the 
 Mercantile Community established therein. It was 
 his province to determine all disputes between the 
 members of that Community and foreign merchants 
 in matters of Commerce and Navigation. These 
 Officers were for the most part two in number, and 
 the Consolato del Mare, one of the earliest compila- 
 tions of Eules for the decision of Maritime and Com- 
 mercial questions, is considered to have been so called, 
 as embodying the Rules according to which the Judge- 
 Consuls, established in the Maritime Cities of Spain, 
 proceeded in determining the questions submitted to 
 their decision. As Commerce increased, these Local 
 
 ment did not consider such an general officer's sword, 
 
 exchange to be admissible. It ^ Elements, Pt. III. § 20. 
 
 would have been in fact an Bynkershoek, De Foro Lega- 
 
 unequal exchange, and under the torum, c. 3, 9. 
 
 circumstances of hostilities being *^ The office of Judge- Consul 
 
 recommenced a diplomatist's pen was first introduced at Barcelona 
 
 was not an equivalent for a in Spain in the year 1279. 
 
RIGHT OF LEGATION. 379 
 
 Institutions became inadequate to the wants of Mer- 
 chants of different Nationalities, and we thus find 
 the Institution of Judge-Consuls fall into disuse, and 
 their functions pass into the hands of Ofl&cers bearing 
 indeed the name of Consuls, but appointed not by 
 the resident body of merchants in each City, but by 
 Foreign States, and commissioned by them to watch 
 over the Commercial interests of their subjects. The 
 duties of a Consul in the modern sense of the word 
 are strictly limited to the management of the private 
 affairs of the subjects or citizens of the State, from 
 which he has received his Commission. He is not 
 concerned in any way, as Consul, with the public 
 affairs of States, and he is accordingly not clothed 
 with a Diplomatic Character. J. J. Moser is almost 
 the only Jurist of note who has claimed for the Consul 
 a place of inferior rank amongst Public Ministers ; 
 but Bynkershoek, Wicquefort, Vattel, and Kliiber 
 concur in rejecting such a claim. It is true, that 
 European Consuls accredited to Mahommedan Powers 
 have in fact exercised many of the functions which 
 mark the Diplomatic Agent, and have been clothed 
 with many of the attributes of the Diplomatic 
 Character ; but the Status of the Consul in the 
 Levant, as well as in China and in Japan, is excep- 
 tional, and rests upon special Treaty-engagements 
 between the Christian and the Mahommedan or Budd- 
 hist Powers *®. A Consul is not the bearer of Letters 
 of Credence, but he receives»a Commission (lettre de 
 provision) signed by the Sovereign authorising him 
 to discharge the duties of Consul in the place where 
 he is to reside : his nomination is not addressed to 
 the Chief of the State, but his appointment is com- 
 
 '' The special jurisdiction Ottoman Empire is treated of in 
 which Consuls exercise in the a subsequent chapter. 
 
380 EIGHT OF LEGATION. 
 
 municated to the Government, and its permission is 
 required to enable him to enter upon his functions. 
 The permission is given by a Rescript or Order from 
 the Foreign Department of the State, to which the 
 Consvil is accredited, termed an Exequatur, the form 
 of which varies in different countries, but the purport 
 of which is to authorise the functionaries of the Home 
 as distinguished from the Foreign Department of the 
 Government to recognise the Official Character of the 
 Consul". The Consul cannot enter upon his func- 
 tions before the delivery of the Exequatur, which 
 may be revoked at any time at the discretion of the 
 Government of the Country, wherein he is estab- 
 lished. It was not unusual in the case of the Free 
 Cities of the Germanic Confederation, and the prac- 
 tice is still maintained in Mahommedan Countries 
 and in several of the South American Republics, that 
 Consuls or Consuls-General should also be accredited 
 as Agents for Political purposes, or as Charges 
 dAffaires. Under such circumstances they are in- 
 vested with the Diplomatic Character, and are en- 
 titled to the privileges of Public Ministers. It is con- 
 formable to the principles of PubHc Law that the 
 Consul, who is also Charg^ d' Affaires, should not en- 
 gage personally in trade. In the case of ordinary 
 Consuls some Nations forbid and others allow their 
 Consuls to trade. A Consul, who is engaged in trade, 
 is amenable in all that regards his trade to the Local 
 Jurisdiction equally as*any private merchant, and 
 although he may be a natural-born subject of the 
 State whose Commission he bears, he will notwith- 
 standing his Commission of Consul, acquire by con- 
 
 '■^ There are various grades in Consul, Consular Agent, and 
 the Consular department, such Pro-Consul, 
 as Consul-General, Consul, Vice- 
 
RIGHT OF LEGATION. 381 
 
 tinuous residence and trade a Commercial Domicil 
 in tlie Country, in which he maintains his trading 
 Establishment, and his property may thus in qjise of 
 ■war be liable to be treated as the property of an 
 Enemy by any Power, which is at war with the 
 Country in which he carries on his trade. 
 
CHAPTEB XIII. 
 
 EIGHT OF TREATY. 
 
 Sacted character of Leagues between Nations — Leagues may 
 be in confirmation or in extension of Natural Right — Religious 
 obligation of every League — Equal and Unequal Leagues — Unequal 
 Leagues not contrary to Equity — Personal and Real Leagues — Tests 
 of Continuing Leagues — The Holy Alliance of 1815 a strictly per- 
 sonal League — History of the Holy Alliance — The Family Compact 
 of the House of Bourbon — Treaties of Navigation and Commerce — 
 Treaties of Jurisdiction — Treaties of Extradition — Civil law of 
 the Romans as to fugitives from Justice — Common Law of Nations 
 — Extradition of fugitive slaves and of deserters a frequent sub- 
 ject of Treaty-engagement — Extradition of political offenders 
 exceptional — Treaties of Boundary — Judicial Decisions as to the 
 permanence of certain Treaty-Engagements — Treaties which create 
 a Servitude of Public Law — Treaties of Equal and Unequal Alliance 
 — Treaties of Protection — Treaties of Subsidy — Treaties of Guaranty 
 — Treaties of Neutrality — Conclusion and Ratification of Treaties 
 — Termination and Renewal of Treaties. 
 
 The sacred ^224. It has been observed in discussing thelnter- 
 of Leases national Eelations which existed between the Chris- 
 between ^[gj^ Powcrs of Europe and the Ottoman Porte at the 
 
 Nations. ,.„•,. 
 
 conclusion of the Eighteenth Century, ($ 61,) that it 
 was a maxim of the Mahommedan world, that there 
 was no other Law of Nations than that which is de- 
 rived from Positive Compact or Convention. Such 
 also seems to have been the condition of things con- 
 templated by the Eoman Jurists, when they admitted 
 the possible existence of an intermediate state between 
 amity and hostility, in which the members of one 
 Nation might stand in relation to the members of 
 another Nation, when there was no League between 
 the Nations themselves. It appears to have been a 
 
EiaHT OF TREATY. 383 
 
 maxim of the Eoman Law^ in reference to such 
 Nations, that although they were not to be regarded 
 by the Eomans as Enemies, yet if any thing should 
 find its way out of Roman territory into their country, 
 it would become their property, and if a Roman 
 citizen should be captured by them, he would become 
 theix slave, whilst Roman citizens would be entitled 
 to exercise analogous control over persona and things 
 appertaining to such Nations, and happening to come 
 within Roman territory. A doctrine of similar, im- 
 port was upheld amongst the ancient Greeks, and 
 the practice of Statesmen in such matters found 
 countenance in the writings of Philosophers. If we 
 travel back to a period still more remote, we find that 
 amongst the Jews of olden time it was denied that 
 any satisfaction was to be made to an injured party 
 who was a foreigner, unless his Nation was a Con- 
 federate of the Jewish Nation. There might however 
 be Communities beyond the pale of the Bace in the 
 case of the Jew and the Greek, and beyond the pre- 
 cincts of the Asylum in the case of the Romans, to- 
 wards whom Religion would enjoin the performance 
 of the most friendly acts, if Public Covenants to that 
 effect had been made with them, and when such 
 Covenants had been made by the Sovereign Power in 
 behalf of the Nation, the whole Nation was considered 
 to be exposed to the wrath of the Deity, if any indi- 
 vidual violated them in any respect. It thus became 
 a matter of the last importance to Nations to reduce 
 into a system the making of Public Covenants or 
 
 ■ Pomponius apud Dig. XLIX. nostro ad eos venit illorum fit, et 
 
 Tit. XV. §. 5. Nam si cum gente liber homo noster ab eis captuB 
 
 aliqua neque amicitiam, neque servus fit eorum. Idemque est, 
 
 hospitium, neque foedus amici- si ab illis ad nos aliquis perve- 
 
 tise causa factum, hi hostes qui- nerit. 
 dem non sunt; quod autem ex 
 
384 RIGHT OF TREATY. 
 
 Leagues, and the observance of the obligations of Law 
 resulting therefrom. The Roman Nation from its 
 peouUar origin, being founded on the Eight of Sanc- 
 tuary, seems to have felt an instinctive want of more 
 definite institutions for this object than any which 
 we discover amongst the Greek Races, and we find 
 accordingly a religious Corporation established in 
 Rome at a very early period, the Collegium Fetiahum, 
 whose special business it was to determine the con- 
 ditions and to regulate the forms under which the 
 Roman People could denounce Treaties and declare 
 War without incurring the anger of the Gods. 
 Leagues^ § 225. Grotius ^ has adopted a twofold division of 
 oonfirma- Leagucs, arising from the matter thereof, namely, those 
 extension which require such things only as are agreeable to 
 Bi^f ""^^ the Law of Nature, and those which add something 
 more thereunto. Puffendorf *, whilst he approves the 
 principle of this division, subdivides the latter class, 
 and thereby virtually adds a third class, namely, those 
 which restrain the duties of Natural Law, when they 
 are too general and indefinite, to certain and particular 
 articles. " Leagues," says Grotius, " of the first kind 
 are generally made between enemies upon the con- 
 clusion of a war, and formerly were often made, and 
 indeed were in a certain manner necessary, between 
 those who had never contracted any engagement to- 
 wards one another; which arose from this circum- 
 stance, that the Rule of Natural Right, which main- 
 tains that there is a kind of Natural Relationship 
 between all mankind, and therefore that it is wrong 
 for one man to harm another, had become effaced by 
 evil habits, as of old before the Deluge, so likewise 
 some time after the Deluge, so that it was accounted 
 
 ^ De Jure B. et P., L, II. c. 15. ' Law of Nature and of Na- 
 § 5. tions, L. "VIII. 0. 9. § I. 
 
RIGHT OP TREATY. 385 
 
 lawful to rob and plunder Strangers, without declaring 
 war*. So inveterate indeed was the corruption of 
 manners amongst the Greeks, that Aristotle, the Phi- 
 losopher of Practical Life, maintained that hunting, as 
 a branch of warfare, was a Natural habit of mankind, 
 as respects wild beasts and such individuals of the 
 human race, as, being intended by nature to be in a 
 subject state, refuse to submit themselves ^ 
 
 ^226. A League in its simplest form was but theReiigioua 
 extension of the Religious Obligation, under which "f every"" 
 Fellow-Citizens stood towards one another, as votaries ^^^°- 
 of the same Gods. It was the formal recognition on 
 the part of two Nations of a reciprocity of Duty and 
 Right under a common Sanction. Thus the Amphic- 
 tyonic Confederation was a League of States, in which 
 the Religious character was paramount, all the mem- 
 bers of the League being votaries of Apollo, and 
 making offerings to that Deity in common at the 
 Delphic Shrine. 
 
 The Civitas or Nation was in its earliest form a 
 body of persons making sacrifices to the same Deities. 
 The Stranger was beyond the pale of the common 
 Religion of the Civitas. There was accordingly no 
 obligation upon the members of a State in respect of 
 a Stranger, as such, corresponding to the obligations 
 which existed amongst Fellow-Citizens, who could 
 appeal in the last resort to a Divine Sanction, which 
 was acknowledged by all alike. The League, however, 
 admitted the Stranger within the pale of Religion, 
 
 * Thucydides describes in like reports the same of the Iberians, 
 terms the manners of the early and Csesar de B. Gall., L. YI. 
 Greeks, L. I. 0. 5. Servius, in his c. 23, says of the Germans, La- 
 Commentary upon the eighth and trocinia nuUam habent infamiam, 
 tenth ^neid, speaks in similar quae extra fines cujusvis civitatis 
 language of the Tyrrhenians ; fiunt. 
 Diodorus Siculus, L. V. c. 34, ' Politica, L. I. § 3. 
 
 PART I. c c 
 
386 EIGHT OF TREATY, 
 
 and the ceremony of his admission was the offering of a 
 common sacrifice to the Deity. Hence we find amongst 
 the Greeks that the simplest form of League was de- 
 moted by the term a-irovSri, which signifies a common 
 libation poured out to the Gods, and which had a 
 symbolic character, seeing that the Contracting Par- 
 ties mixed wine together as an emblem of concord, 
 and then poured it forth in common with a prayer, 
 that whoever should first break the compact might 
 have his blood poured forth in like manner ^ The 
 conclusion of a League between two Nations consti- 
 tuted a State of amity between them, which put an 
 end to that vague condition, which Sallust ' describes, 
 when he speaks of King Bocchus as "nobis neque 
 bello, neque pace cognitus." 
 
 Under the simplest head of Leagues may be classed 
 all Compacts between Nations for freedom of Commerce 
 and for Hospitality towards Strangers of either Na- 
 tionality, as being agreeable to the Law of Nature. A 
 Nation may enter freely into Leagues of this kind 
 with every Nation, as the duties involved in them 
 cannot conflict with one another, any more than the 
 duties of Natural Law. "No person," says the Advo- 
 cate of King Perseus before the Achaean Assembly, 
 " seeks to induce you to enter into any new Alliance, 
 which will embarrass us, but only into an agreement, 
 which will secure to each party freedom of Commerce 
 and reciprocity of Eight. Such an agreement will 
 not be inconsistent with our Alliance with the Bo- 
 mans." 
 Unequal §22"/. Lcagucs, which add something to the Na- 
 L^ag^e^^ tural Law of Nations, are divided by Grotius into 
 Equal and Unequal Leagues. Puifendorf adopts the 
 
 ' Homer, II. III. 300. 
 
 ' Sallust, de Bello Jugurthino, c. 22. 
 
RIGHT OF TREATY. 387 
 
 same classification. The first are such as are con- 
 cluded on equal terms, when not only the engagements 
 themselves are equal on both sides, either absolutely 
 or in proportion to the strength of either party", but 
 also when neither party is by such engagements ren- 
 dered in any way dependent upon the other. Un- 
 equal Leagues are of two kinds, according as the 
 inequality regards the stronger or the weaker party. 
 The stronger party may undertake to give assistance 
 without requiring it in return, or to perform more in 
 proportion than the weaker State is required to do, or 
 the weaker State may submit to conditions which 
 limit the exercise of its Natural Right of independence. 
 For instance, a Nation may undertake' to account the 
 friends and enemies of another Nation as its own 
 friends and enemies, or not to fortify particular parts 
 of its own territory, or not to keep on foot more than 
 a certain number of trained soldiers or war-ships, 
 without being shorn of its Independence in any way. 
 On the other hand, if a Nation undertakes not to 
 make peace or war at all without the consent of an- 
 other Nation, or not to send or receive Ambassadors, 
 such an undertaking would substantially impair its 
 Independence, and the Nation which has so con- 
 tracted with another Nation will have become vir- 
 tually dependent upon it. 
 
 ^228. VatteP has made a distinction between Un- Unequal 
 equal Leagues which are contrary to Equity, andnoHon- 
 Unequal Leagues which are not contrary to Equity, g^{j*° 
 and consequently not contrary to Natural Law. Of 
 the latter kind are those which contain conditions, 
 which a Nation may feel authorised by the care of its 
 own safety to impose upon another Nation, either by 
 way of precaution against probable danger, or by way 
 
 * Droit des Gens, L. II. § 180. 
 C c 3 
 
388 RIGHT OF TREATY. 
 
 of penalty in order to punish an unjust aggressor, 
 and to render tlie Nation incapable for some time of 
 renewing its aggression, A Nation, which has been 
 victorious in war, dictates for the most part to its 
 adversary unequal terms of peace. There is a limit, 
 however, beyond which such inequality may not extend 
 without awakening the alarm and enlisting the sym- 
 pathy of other Nations in behalf of the vanquished. 
 " Sound policy," writes Vattel, " will not permit a 
 Great Power to suffer the Small States in its neigh- 
 bourhood to be oppressed. If it abandons them to the 
 ambition of a Conqueror, the latter will very soon be- 
 come formidable to it in its turn. Accordingly Sove- 
 reigns, who are in general sufficiently true to their 
 own interests, seldom fail to observe this maxim. 
 Hence the Leagues, at one time against the House of 
 Austria, at another time against its Rival, according 
 as the one or other Power preponderated. Hence 
 that Equihbrium, the perpetual object of Negociation 
 and War." 
 Personal § 229, Another celebrated distinction of Leagues, 
 Leagues, which is recognised by Grotius ' and Puffendorf, is 
 that which divides them into Personal and Eeal. 
 "The former," says Puffendorf i", "are such as are- 
 made with the Prince purely with relation to his Per- 
 son, and expire with him ; the latter are such as are 
 made with the Kingdoms or Commonwealths, rather 
 than the Prince or Government, and these outlive the 
 Ministry and the Government itself, under which 
 they were first made." Vattel " adopts a somewhat 
 clearer and sounder definition, when he says that Per- 
 sonal Treaties relate to the persons of the Contract- 
 
 ° De Jure Belli et Pacis, L. 11. c. 16. § 16. 
 ^° Law of Nature and of Nations, L. VIII. c. 9. § 6. 
 " Droit des Gens, L. II. § 183. 
 
EIGHT or TREATY, " 389 
 
 ing Parties, and are confined and in a manner attached 
 to them ; whilst Ileal Treaties relate only to things or 
 matters in negociation between the Contracting Par- 
 ties, and are wholly independent of their persons. A 
 Personal Treaty expires with him who contracts it ; a 
 Eeal Treaty attaches to the body of the State, and 
 subsists as long as the State, unless the period of its 
 duration has been expressly limited. Thus every 
 Treaty concluded between the Kings of France and 
 the Sultans of Constantinople from 1535 down to 
 1740, expired on the death of the Sultan for the 
 time , being. The Treaty of 1 740, between King 
 Louis XV and Sultan Mehemet II, was the first 
 which in terms bound their successors. It is of 
 great importance not to confound these two kinds of 
 Treaties. Accordingly Sovereigns are at , present 
 accustomed to express themselves in their Treaties 
 in such a manner as to leave no uncertainty in this 
 respect, and this is doubtless the best and surest 
 plan. In default of this precaution the subject- 
 matter of the Treaty, or the expressions, in which 
 it is conceived, may furnish means to ascertain 
 whether it be Keal or Personal. 
 
 § 230. Vattel has laid down certain general rules Tests of 
 for ascertaining the character of a Treaty, whether it ir^ties!"^ 
 be a continuing Treaty after the death of one of the 
 Contracting Parties. The circumstance, that a Treaty 
 is concluded in the name of a Sovereign Prince, does 
 not thereby constitute it a personal Treaty, although 
 when a Treaty is concluded in the name of a Kepublic 
 or Popular Government, it is the Nation itself which 
 contracts, and the Treaty is undoubtedly a Eeal 
 Treaty. Public Treaties concluded by a King are 
 Treaties of the State, and are obligatory on the Na- 
 tion over which the King is Sovereign, and which he 
 
390 ' RIGHT OP TREATY. 
 
 represents for external purposes. The presumption 
 accordingly, in respect of every Public Treaty, is, that 
 it concerns the State itself, and is so far a Real 
 Treaty, The question however as to its continuance 
 is not thereby settled. It may be binding on the 
 Nation, but the length of time, during which it shall 
 bind the Nation, may vary with the terms of the 
 Treaty, or the subject-matter of it. Thus if a Treaty 
 is concluded for a certain number of years, or is 
 declared to be perpetual, its duration will not be 
 dependent upon the lives of the contracting parties ; 
 or if a King declares in a Treaty that it is made for 
 himself and his Successors, or that it is made for the 
 good of his Kingdom, it is manifest that the Treaty is 
 intended to last as long as the Kingdom itself. In 
 case of doubt, if there be no expressions in the Treaty 
 itself, nor any circumstance dehors the Treaty, which 
 will determine its duration, it ought to be presumed 
 to be a Eeal Treaty, if its provisions are favourable ; 
 if its provisions on the other hand are odious, it may 
 be with reason concluded to be a Personal Treaty, and 
 as such intended to expire upon the death of either of 
 the Contracting^. Parties. By favourable provisions 
 are meant such provisions as tend to the mutual 
 advantage of both the Contracting Parties ; by odious 
 ^provisions are understood such provisions as are either 
 an absolute burden upon one of the Parties, or are 
 more burdensome on the one than on the other Party. 
 This rule for determining the continuing operation of 
 Treaties is conformable to Reason and Equity. In 
 the absence of certainty we must have recourse to 
 probability. When the question relates to things 
 favourable and equally advantageous to both Parties, 
 it is consistent with probability that they should 
 intend their contract to be permanent, and no injury 
 
EIGHT OP TREATY. 391 
 
 can result to either Party by the contract being per- 
 petuated. If, on the other hand, there be any thing 
 odious in the Contract, if there be penal or prohibitive 
 clauses in the Treaty, which lay a burden upon one of 
 the Parties to it, there is no reasonable ground for 
 supposing in the absence of positive words to that 
 effect, that the Sovereign, who entered into such 
 engagements, intended to burden his kingdom for 
 ever. On the contrary, every Sovereign is presumed 
 to desire the safety and advantage of the Nation 
 which he represents, and not to intend to load it for 
 ever with a burdensome obligation. On the other 
 hand, it is consistent with probability, that the Party 
 to the Treaty, who has imposed a burden on the other 
 Contracting Party, if it was mutually intended by 
 them that he should enjoy his advantage for ever, 
 would not have neglected so to stipulate as to place 
 the matter beyond a doubt, well knowing that man- 
 kind seldom submit to burdens, unless bound by 
 formal obligations. If this presumption should be in 
 a particular case inconsistent with the fact, and it 
 should deprive a party of his Eight, it will be a con- 
 sequence of his own negligence. Thus much is certain, 
 that if one or other of the Contracting Parties must 
 sacrifice a Right, it will be a less violation of Equity, 
 that the one should forego an anticipated advantage, 
 than that the other should suffer an unexpected loss. 
 It is the famous distinction between " de lucro cap- 
 tando" and " de damno vitando ^V 
 
 ^231. The term "League" has been adopted by The Holy 
 Kennett, the translator of Puffendorf, to distinguish fg'JJ"^''^ "^ 
 that species of Public Compact between Nations, which ^^|^% 
 does not presuppose a State of War. Truces and League. 
 
 " Droit des Gens, L. II. § 190. 
 
392 RIGHT OF TREATY. 
 
 definitive Treaties of Peace, which presuppose a State 
 of War, belong to another Category, and will be con- 
 sidered apart. The most remarkable instance in 
 modem times of a Personal League, is that which 
 was concluded at Paris, (Sept. 14, I8I5^^) between 
 the Emperor of Austria, the King of Prussia, and the 
 Emperor of Russia ; and which has been designated 
 the Holy Alliance. It was signed in triplicate by 
 the three Sovereigns personally, and does not bear 
 any Ministerial counter-signature. Tt was published 
 at St. Petersburg, on Christmas Day, 1 8 1 5, by the 
 Emperor Alexander, accompanied with a Manifesto, 
 announcing that the object of the Alliance was to 
 establish a Christian Fraternity amongst the Nations 
 of Europe. The majority of the Sovereign Princes of 
 Europe subsequently acceded to this Alliance, upon 
 the invitation of one or other of the three Contracting 
 Parties, but the Prince Regent of Great Britain was 
 formally precluded by considerations of Constitutional 
 Law from annexing his signature to it, as appears by 
 his Letter of October 6, 18 J 6. Much has been said 
 of this Alliance both in praise and dispraise of it. 
 It has been extolled as a declaration of the purest 
 International Morality, it has been condemned as a 
 Monarchical Compact against Popular Liberties. If 
 its history be considered, and its contents examined, 
 it may result that it neither deserves the encomiums 
 bestowed upon it, nor merits the opprobrium lavished 
 against it. It was a romantic efiusion of political 
 sentiment on the part of the Emperor Alexander, 
 which had no practical meaning, and which Prince 
 Metternich, Prince Hardenberg, and Lord Castle- 
 
 ^' Martens, N. R. II. p. 656. et indivisibile Trinity," are pre- 
 
 British and Foreign State Papers, fixed to the Treaty, which cir- 
 
 vol. III. 1815-1816, p. 211. The cumstance is not without pre- 
 
 words " Au nom de la trfes Sainte cedent. 
 
RIGHT OF TREATY. 393 
 
 reagh combated in vain ; and to which the Emperor 
 of Austria and the King of Prussia unwillingly ac- 
 ceded, from personal considerations towards their 
 ally. Its tone savours more of a Papal Rescript 
 than a Political Treaty, for the sum and substance of 
 it is to affirm, that the Princes of Europe and their 
 Peoples are members of one Great Christian Nation, 
 and that Peace amongst those members can only be 
 preserved by the practice of the duties, which the 
 Saviour of mankind has inculcated. Kltiber regards 
 the Holy Alliance as the formal application of Christ- 
 ian Morality to the Government of mankind, and to 
 the mutual intercourse of Nations. Its place in the 
 system of the Public Law of Europe was fixed by 
 the Protocol of Nov. 15, 18 18, signed by the Plenipo- 
 tentiaries of Austria, France, Great Britain, Prussia 
 and Russia, assembled in conference at Aix-la-Cha- 
 pelle, in which it is spoken of as forming " a bond of 
 Christian Fraternity amongst the Sovereigns them- 
 selves "." The declaratory part of the Treaty is as 
 follows : " D^clarent solenneUement, que le present 
 Acta n'a pour objet que de manifester, h. la face de 
 rUnivers, leur determination indbranlable de ne 
 pi endre pour rfegle de leur conduite, soit dans I'admi- 
 nistration de leurs Etats respectifs, soit dans leur 
 relations politiques avec tout autre gouvernement, 
 que les ] rdceptes de cette Religion Sainte, pr^ceptes 
 de justice, de charity, et de paix,qui, loin d'etre unique- 
 ment applicables k la vie priv^e, doivent, au con- 
 traire, influer directement sur les resolutions des 
 
 " Qu'elles sont fermement d6- et interSts communs ; union de- 
 
 cid^es k ne s'6carter ni dans leurs venue plus forte et indissoluble 
 
 relations mutuelles, ni dans celles par les liens de fraternity Chr6- 
 
 qui les tiennent aux autres 6tats, tienne, que les souverains ont 
 
 ,duprincipederUnionintiine,qui formes entre eux. Martens, 
 
 apr6sid6jusqu'ici41eursrapports N. K. IV. p. 555. 
 
394 RIGHT OP TREATY. 
 
 Princes et guider toutes leurs d-marches, comme 
 dtant le seul moyen de consolider les Institutions 
 humaines et de rem^dier k leurs imperfections "." 
 History of S 232, The Holv Alliance was so singular in its 
 
 the Holy ^ . •' , . . , . ° 
 
 Aiiianoe. Conception, and its political import was so totally 
 different in fact from what has been generally sup- 
 posed, that it may not be superfluous to give a short 
 account of it. The Emperor Alexander of Eussia was 
 liable to periodical accesses of political excitement, 
 which breathed sometimes the Spirit of Absolute 
 Monarchy resting on Divine Eight, at others savoured 
 of the lessons which he had early imbibed in an oppo- 
 site spirit under the tuition of La Harpe. It was 
 under the influence of strong excitement of the 
 former character, that he communicated to his two 
 Allies at Paris his project for the estabhshment of 
 a Christian Fraternity amongst the Sovereigns of 
 Europe. Both these Monarchs endeavoured in vain 
 by reasoning with their august Ally to persuade him 
 to abandon his project, and the arguments of their 
 Ministers, Prince Mettemich and Prince Hardenberg, 
 as weU as of Lord Castlereagh, who represented the 
 Prince Regent in the Conferences at Paris, had as 
 little weight with him as the intercessions of the 
 Sovereigns. So excited indeed was the imagination 
 of the Emperor Alexander by the general opposition 
 to his views, that the Emperor of Austria expressed 
 to Prince Mettemich and Lord Castlereagh his convic- 
 tion, that, if the Allies persisted in refusing altogether 
 to sanction the Emperor's project, the effect might be 
 seriously prejudicial to his mind. It was determined 
 
 ." Martens, N. E. II. p. 657. took place on Nov. 19, i8ig, 
 
 Most of the European Sovereigns and his Act is printed in 
 
 acceded to the Act. Tlie acces- D'Angeberg's Congrfes deVienne, 
 
 sion of Louis XVIII of France 2^^^^ partie, p. 1549. 
 
EIGHT OP TEE AT Y, 395 
 
 accordingly, with a view to deprive the Alliance of 
 aU substantial importance as a Political Act, that it 
 should receive the signatures of* the Sovereigns alone, 
 without any Ministerial counter-signature. After the 
 document had been drawn up and signed by the three 
 Sovereigns, a copy was transmitted to Lord Liverpool, 
 who was the Chief of the British Cabinet, by Lord 
 Castlereagh, accompanied by an autograph letter ad- 
 dressed to the Prince Eegent, written by the Emperor 
 of Eussia himself and signed by the three Allied 
 Sovereigns, in the following terms : — 
 
 Paris, le %6 September, 1815. 
 
 MONSIBDK NOTRE FeEEE ET CoUSIN, 
 
 Les 6vSnemeiis, qui ont afflige le monde depuis plus 
 de ao ans, nous ont convaincu, que le seul moyen d'y mettre 
 un terme se trouvoit dans I'Union la plus franche et la plus 
 intime entre les Souverains, que la Divine Providence a place 
 ^ la tete des Peuples de I'Europe. L'Histoire des 3 annees 
 memorables, qui viennent de s'ecouler, atteste les effets bien- 
 faisants, que cette Union a produit pour le salut de I'humanit^, 
 mais afin d'assurer h ce lien la solidite que reclame imperieuse- 
 ment la graadeur et la puretd du but, vers lequel il tend, nous 
 avons pense qu'il dut etre fonde sur les principes sacres de la 
 Religion Chretienne. 
 
 Profonderaent penetre de cette importante v^rite, nous 
 avons conclu et signe I'Acte, que nous soumettons aujourd'hui 
 a la meditation de votre Altesse Royale. EUe se persuadera 
 qu'il a pour objet de raffermir les rapports qui nous unissent, 
 en formant de tous les Peuples de la Chretient^ une seule et 
 meme Famille, et en leur assurant par \k, sous la protection du 
 Tout-Puissant, le bonheur, le salut, les bienfaits de la paix et 
 des liens de fraternite k jamais indissolubles. Nous avons 
 vivement regrette que Votre Altesse Royale n'ait point €\& 
 reuni avec nous dans le grand moment, ou nous avons conelu 
 cette Transaction. Nous I'invitons comme notre premier et 
 
396 EIGHT OF TREATY, 
 
 plus intime Allie k y accorder, et h completer une ceuvre uni- 
 quement consacre au bien de I'huinanit^, et que nous devons 
 d^s lors considerer comme la plus belle recompense de nos 
 efforts. 
 
 FRANgOIS. 
 
 FEfiD^RIC GUILLAUME. 
 
 ALEXANDRE. 
 
 Notre Frfere et Cousin, 
 Le Prince Regent de la Grand Bretagne. 
 
 Lord Castlereagh at the same time took the pre- 
 caution of transmitting the draught of an innocuous 
 answer for the Prince Regent to send back. This 
 draught underwent a careful revision at the hands of 
 Lord Liverpool, and the contents of it, as ultimately 
 settled, were as follows : — 
 
 Carlton House, Oct. 6, 1815. 
 SiK, My Ekothee and Cousin, 
 
 I HAVE had the honour of receiving your Imperial 
 Majesty's Letter, together with the Copy of the Treaty signed 
 by your Majesty, and your August Allies, at Paris, on the 
 36th of September. 
 
 As the forms of the British Constitution, which I am called 
 upon to administer in the name and on the behalf of the King, 
 my Father, preclude me from acceding formally to this Treaty, 
 in the shape in which it has been presented to me, I adopt 
 this course of conveying to the August Sovereigns, who have 
 signed it, my entire concurrence in the principles they have 
 laid down, and in the declaration which they have set forth, 
 of making the Divine precepts of the Christian Religion the 
 invariable rule of their conduct, in all their relations, social 
 and political, and of cementing the Union which ought ever to 
 subsist between all Christian Nations j and it will always be 
 my earnest endeavour to regulate my conduct, in the station 
 in which Divine Providence has vouchsafed to place me, by 
 these sacred maxims, and to cooperate with my August Allies 
 
RIGHT OP TREATY. 397 
 
 in all measures which may be likely to contribute to the peace 
 and happiness of mankind. 
 
 With the most invariable sentiments of friendship and 
 affection, 
 
 I am, 
 
 Sir, My Brother and Cousin, 
 Your Imperial Majesty's Good Brother and Cousin, 
 
 GEOB,GE P. R. 
 
 His Imperial Majesty 
 the Emperor of Austria. 
 
 §233. The Treaty of Friendship and Union con- TheFamiiy 
 eluded at Paris (August 15, 1761 ") by the Plenipo- thTnousr 
 tentiaries of the Very Christian King and the Catholic "f^ourbon. 
 King, is an instance of a Family League, which may 
 be regarded as an enlarged form of a Personal League. 
 The object of this Treaty, -which is expressly desig- 
 nated in the Preamble as a Family Compact, was to 
 establish a perpetual alliance between the French 
 and Spanish branches of the House of Bourbon, and 
 to afford to either Crown a reciprocal guaranty of aU 
 its possessions wheresoever situated. The simple de- 
 mand of succour on the part of either Crown was to 
 constitute a casus foederis without the necessity of 
 any explanation. Provision was made by the nine- 
 teenth article of the Treaty for the admission of the 
 Neapolitan branch of the House of Bourbon. Although 
 this Treaty was made by the two Sovereigns on be- 
 half of themselves and their Successors, and so far in 
 terms satisfies one of Vattel's definitions of a Real 
 Treaty ^'' ; yet the subject of it discloses the intention 
 of the Contracting Parties to confine its benefits to 
 
 1" Martens, Eecueil, I. p. 16. lui et ses siKcessmrs, il est mani- 
 
 " Droit dee Gens, L. II. §188. feste que le Traits est r6el. II est 
 
 De m^me, lorsqu'un roi declare attache ^I'Etat.et fait pour durer 
 
 dans le traits, qu'il le fait pour autant que m§me le royaume. 
 
398 EIGHT OF TEEATY. 
 
 the House of Bourbon, so clearly, that it may be re- 
 garded as altogether exceptional ^^ seeing that it con- 
 tains an express provision (Art. XXI), that no other 
 Powers than those, "which may be of the House of 
 Bourbon, can be invited or admitted to accede to it. 
 Accordingly we find, when His Catholic Majesty made 
 a formal application to Louis XVI of France in 1 790 
 for aid, in pursuance of this Treaty, in defence of his 
 possessions on the West Coast of North America 
 against Great Britain, the National Assembly, to 
 which body Louis XVI was obliged, under the altered 
 condition of the Monarchy in France, to submit the 
 letter of the King of Spain, demurred to the applica- 
 tion, considering the Family Compact between the 
 two Crowns not to be identical with a Public Treaty 
 between the two Nations ". 
 Treaties of ^ 234. The object of all Leagues is the promotion 
 anYcom™ of Society amongst Nations, and this Society relates 
 meroe. either to peaceful Commerce, or to community of 
 War 2". Leagues which relate to Commerce may be 
 of various kinds. The rudiments of Commercial 
 Leagues may be traced in the stipulations between 
 Nations for the hospitable reception of Strangers, and 
 the distinction between the foreigner regarded qui 
 pdp^apos, and the foreigner regarded qu^ ^eyoi, con- 
 sisted in the circumstance, that the latter had a claim 
 
 '* Kings do not always treat ties are personal in their own 
 
 solely and directly for their King- nature, and expire of course on 
 
 doms. Sometimes by virtue of the death of the King or the ex- 
 
 the power they have in their tinction of his family. Such an 
 
 hands, they make treaties relative alliance is made for the defence 
 
 to their own persons, or their of the King and his Family. — • 
 
 families, and this they may law- Vattel, L. II. § 195. 
 
 fully do, as the welfare of the " Twiss on the Oregon Ques- 
 
 State is interested in the safety tion, London, 1846, p. 112. An- 
 
 and advantage of the Sovereign, nual Register, 1790, p. 303. 
 
 properly understood. These trea- '" Puffendorf, c. 8, c. 9. 
 
EIGHT OF TREATY. 399 
 
 of Bight to Hospitality, wtich the former had not. 
 An early example of this kind of League may be seen 
 in the Treaty concluded between Alyattes King of 
 Lydia and the Citizens of Miletus, whereby it was 
 provided that the two Nations should be the guests 
 and allies of one another ^\ 
 
 As soon as the security of private intercourse be- 
 tween the individual members of diflferent Nations had 
 been established, the commercial interchange of com- 
 modities for the most part followed in the wake of 
 Hospitality. Foreign commerce thus sprang up, and 
 in many States, where foreign commerce became 
 important, it was found necessary to place it under 
 regulations, and wherever Taxation became an engine 
 of State government, duties or toUs came to be 
 imposed upon foreign merchants frequenting the 
 ports of a State. Treaties of Navigation and of Com- 
 merce thereupon came to be agreed upon between 
 Nations, whereby it was provided that the subjects of 
 the one Power might safely trade in the ports of the 
 other Power on condition of paying customary tolls, 
 or of paying not more than a fixed toll, or of paying 
 not more than was paid by subjects or favoured 
 Allies. 
 
 A Treaty of Navigation and Commerce may be for 
 a term of years or for an indefinite period ; it may 
 provide for trade merely, as for instance for the im- 
 portation and exportation and transit of particular 
 merchandise, for the port-dues, and transit-dues, and 
 custom-dues, to be levied thereupon ; or for the in- 
 cidents of trade in connexion with the residence of 
 merchants ; as for instance, the exercise of jurisdic- 
 tion, the practice of religion, the payment of personal 
 taxes. The provisions of a Treaty of Commerce may 
 21 Herodot. Hist. L, I. § 22. 
 
400 RiaHT OF TEEATY. 
 
 extend even further, and may apply to the contin- 
 gencies of war breaking out between the contracting 
 parties and a third Power, or between Powers which 
 are strangers to the contracting parties. Thus it 
 may be provided that, if war should break out be- 
 tween the contracting Powers, the subjects of either 
 Power, resident in the territory of the other Power, 
 should be allowed an interval of time to collect their 
 goods and effects, and to withdraw in safety to their 
 own country 22; or it may be provided, that, if war 
 should break out between one of the Contracting 
 Powers and a third Power, certain goods shall not 
 be regarded by the former as Contraband of War, 
 or that certain vessels shall not be liable to search or 
 seizure by the former, if laden with cargoes belonging 
 to the subjects of any third Power, or that Privateers 
 shall not be allowed to be fitted out or provisioned in 
 the ports of one of the contracting parties by any 
 Third Power engaged in war with the other contract- 
 ing party ^^. Again, it may be provided in case of war 
 breaking out between Powers which are Strangers to 
 the contracting Parties, that the latter will maintain 
 the security of their mutual commerce on the High 
 Seas by an armed force, if it should be required ; or 
 that debts due from individuals of the one Nation 
 to individuals of the other, and the shares or money 
 which they may have in the public funds, or in public 
 or private banks, shall njpver in any case of war be 
 sequestrated or confiscated ; or that foreign subjects 
 shall be permitted 2* to remain and continue their 
 
 "^ Such stipulations have he- ^ Treaty hetween France and 
 
 come an accustomed formula in the United States of America, 
 
 Commercial Treaties. — Kent's Feb. 6, 1778. Martens, Kecueil, 
 
 Commentaries, I. § 56. Martens' II. p. 595. 
 
 Precis, § 259. Bynkershoek, Qu. ^* Treaty hetween Great Bri- 
 
 Jur. Puhlici, L. I. c. 7. tain and the United States of 
 
RIGHT OP TREATY. 40l 
 
 business (if it be other tban that of commerce on the 
 high seas), notwithstanding a rupture between the 
 Governments, so long as they conduct such business 
 innocently^'. 
 
 A Nation may enter into a Treaty, by which it 
 grants exclusive privileges of trade to one Nation and 
 deprives itself of the liberty to grant similar privileges 
 to another. Of this kind was the famous Methuen 
 Treaty ^* concluded between Great Britain and Por- 
 tugal (Dec. 27, 1703), whereby Portugal obtained a 
 preferential scale of duties for her wines in British 
 markets, whilst Great Britain, on the other hand, ob- 
 ' tained what she considered to be a satisfactory equi- 
 valent, by securing the opening of the Portuguese 
 markets for her wooUen manufactures. It was for- 
 merly the policy of the Christian Nations of Europe 
 to obtain exclusive privileges of trade by Treaties 
 with Asiatic and African Nations. Thus the Dutch 
 engrossed to themselves the trade in cinnamon and 
 other produce of the island of Ceylon, by a Treaty 
 with the King of Candy^''. An opposite policy now 
 prevails ; and we find accordingly that Great Britain 
 took care to recite in her Treaty ^^ with China, that 
 the Five Ports had been declared to be open to the 
 trade of all Nations heretofore trading at Canton, 
 and stipulated only for her own subjects the same 
 
 America,Nov. 19,1794. Martens, '^ Chalmers' Collection of 
 
 Eecueil, V. p. 662. Grotius, De Treaties, T. II. p. 305. 
 
 Jure B. et P., L. III. c. 20. "'' Trait6 de Paix entre la 
 
 §16. Hollande et le Koi de Candy 
 
 ^^ Treaty between the United (Feb. 14, 1766). Martens, Ke- 
 
 States \>{ America and the Ee- cueil, T. I. p. 319. 
 
 public of Chili, May 16, 1832. =' Supplemental Treaty of 
 
 Martens, N. R. XL p. 439. The Houmon-Schai (Oct. 8, 1843). 
 
 provisions of this Treaty deserve Martens, N. R. G6n. T. V. p. 595. 
 
 attention, as they are most com- B. & F. State Papers, XXXI. 
 
 prehensive. P- 132- 
 
 PART I. D d 
 
402 EIGHT OF TREATY. 
 
 privileges, as should at any time be accorded to tlie 
 Subjects of other Powers. 
 Treaties of § 235. Treaties of Jurisdiction are for the most part 
 tion. "^ of two kinds : they either provide for the establish- 
 ment of special tribunals for the adjudication of all 
 questions which may arise amongst foreign merchants, 
 or between foreign merchants and the Subjects of the 
 State wherein such merchants carry on their trade ; 
 or they provide for the exercise of jurisdiction by 
 Consuls or Commercial Agents over their own coun- 
 trymen within the territory of the State wherein 
 they carry on their trade, or over their own country- 
 men and the subjects of such State, in matters of 
 trade which may come into dispute between them. 
 A foreigner, under the Common Law of Nations, may 
 sue a Subject of the State wherein he resides in the 
 Courts of that State, and he may be sued in those 
 Courts by Subjects of that State. A foreigner may 
 in like manner sue a foreigner in the Courts of a 
 State wherein they are both resident. Jurisdiction 
 as between Nations being territorial is founded by 
 the presence of an individual within the territory of 
 a Nation. 
 
 The Tribunals however of a State are not under 
 any obligation to administer the Law of a Foreign 
 State, unless there be a Treaty between the States to 
 that effect. In the cases where Treaties provide for 
 the erection of tribunals to decide aU controversies 
 between Strangers (transeuntes) who are not domi- 
 ciled, such tribunals administer the Foreign Law, if 
 it be invoked to settle the dispute. Thus there were 
 Treaties between Great Britain and Portugal ^^, and 
 
 ''' Treaty of WeBtmlnster, July 1 8 10. Hertslet, VI. p. 28. Mar- 
 io, 1654. Hertslet, 11. p. 8. tens, N. K. III. p. 194. These 
 Treaty of Rio Janeiro, Feb. 19, engagements have been deter- 
 
EIGHT OF TREATY. 403 
 
 between Great Britain and Spain ^", and between 
 France and Spain, and between France and Portugal, 
 and between Spain and Portugal, under which spe- 
 cial tribunals were provided, over which a Judge 
 Conservator was appointed to preside ; whose func- 
 tion it was to decide all disputes in commercial mat- 
 ters, which might arise between the Subjects of the 
 respective States. If, however, a Natural born sub- 
 ject of Great Britain or of France had acquired a 
 Domicil in Spain or Portugal, he became amenable 
 to the ordinary tribunals of either country ^^ in any 
 controversy with the Subjects of that country. On 
 the other hand, Treaties provide sometimes for the 
 exercise of an alternative Jurisdiction, as for in- 
 stance, the Treaty of St. Petersburg ^^, concluded 
 between France and Eussia, (Jan. 1 1, 1857,) provided 
 that the Consuls of either Power should exercise an 
 exclusive jurisdiction over the masters and crews of 
 the vessels of their own Nation within the Ports of 
 the other Nation ; and should exercise a voluntary 
 jurisdiction over merchants of their own Nation, 
 which, if such merchants had recourse to it, the 
 Government of the country to which the Consuls 
 were accredited should enforce ; but such merchants 
 might, if they were so minded, in the first instance, 
 have recourse to the ordinary tribunals of the coun- 
 try, which by the local law were empowered to take 
 cognisance of commercial matters. Russia, at the 
 period when this Treaty was concluded, was in sub- 
 stance an Oriental Power, and there are accordingly 
 found in this Treaty a variety of provisions, which 
 
 mined by the Treaty of London, Treaty of Utrecht, Dec. 9, 1713. 
 
 July 3, 1842. Hertslet, VI. p. Hertslet, II. p. 205. 
 
 598. " Foelix, Droit International 
 
 »» Treaty of Madrid, May 23, Priv6, § 148. 
 1667. Hertslet, II. p. 140. '^ Martens, Keoueil, IV. p. 196. 
 
 D d 2 
 
404 RIGHT OF TREATY. 
 
 are affirmations of the Common Law of Nations, as 
 then received in Western Europe ; which, however, 
 had not at such time acquired the sanction of Usage, 
 as a rule of intercourse between Eussia and the 
 Western Powers. 
 
 Treaties which give an exclusive authority to the 
 Consuls and Commercial Agents of a Nation to de- 
 cide all disputes amongst merchants of their own 
 country, and between merchants of their own country 
 and the Subjects of the State to which they are ac- 
 credited, are for the most part founded on a necessity 
 arising out of the great discrepancies which exist 
 between the Laws of the respective Nations in Civil 
 and Criminal matters. The Christian Powers of 
 Europe have from a very early period entered into 
 Treaties of this kind with the Ottoman Porte ^% and 
 with its Dependencies on the Barbary Coast ^*, under 
 which the Consuls of such Powers have exercised an 
 exclusive jurisdiction over their own countrymen in 
 all matters of difference amongst themselves. Trea- 
 ties for an analogous purpose have been within recent 
 time concluded between Great Britain and China ^^, 
 (July 29, 1843,) and between Great Britain and 
 Japan ^^, (August 26, 1858,) with the further provi* 
 sion, that all controversies arising in China or in 
 Japan, between British and Chinese Subjects on the 
 one hand, and between British and Japanese Subjects 
 on the other, shall be determined by the British Con- 
 sul, assisted in the one case by a Chinese, in the other 
 by a Japanese Officer. The Jurisdiction over British 
 Subjects in Criminal matters is to be exercised exclu- 
 
 =' Hertslet, Treaties, II. p. '= Martens, N. R. G6n. V. p. 
 
 346. 434. Hertslet, VI. p. 247. 
 
 =>* Algiers, Hertslet, I. pp. 61, =« Martens, N. E. G6n. XVI. 
 
 70. Tripoli, ib. pp. 127, 146. part II. p. 430. 
 Tunis, ib. pp. 161, 166. 
 
EIGHT OF TEBATY. 405 
 
 sively by the British Authorities, even in cases where 
 British Subjects commit any crime against Chinese or 
 Japanese Subjects or the Subjects or Citizens of any 
 other country. In the Treaty concluded between the 
 Emperor of China and the United States of America ^^ 
 (July 3, 1 844,) there is a provision to the effeqf;, that 
 all controversies occurring in China, between Citizens 
 of the United States and the Subjects of any other 
 Government, shall be regulated without any regard 
 to the Chinese Authorities, or without any interven- 
 tion on their part. It is the practice of France, in 
 accordance with the principles of her Civil Law, to 
 conclude Treaties with Foreign Powers, whereby Ju- 
 risdiction is granted to the Consuls of France over 
 French merchant vessels, in regard to any difference 
 which may arise between the Captain, Officers, and 
 Crews of such vessels, either on the High Seas or in 
 the Ports of such Powers, and the aid of the Local 
 Authorities is guaranteed to support the Jurisdiction 
 of the Consul, if he shall invoke it^^ 
 
 ^236. Treaties of Extradition are another form Treaties of 
 of Treaty, whereby effect is given to the Juris- 
 diction of a State over its Subjects, who may have 
 escaped into the territory of another State. The 
 Common Law of Nations regards all Jurisdiction as 
 founded on the possession of territory by an Inde- 
 pendent Community. The Legislative Power of the 
 Nation extends over all persons and property vdthin 
 the limits of its territory; but its laws do not ope- 
 rate vigore suo beyond its territory. Crimes against 
 its Laws are altogether local, and cognisable only in 
 
 *' Martens, N. R. G6n. VII. tains this amongst other special 
 
 p. 134. engagements. Treaties of the 
 
 '* The Convention of Feb. 23, United States, p. 114. Wheaton's 
 
 1853, between France and the Elements, 1857, p. i^i. 
 United States of America, con- 
 
 Extradi- 
 tion. 
 
406 RIGHT OF TREATY. 
 
 the country in which they are committed. No other 
 Nation, therefore, has any right to punish them, nor 
 is under any obUgation to take notice of them, neither 
 is any other Nation bound to enforce any judgment 
 rendered in such cases by the tribunals having au- 
 thority to hold jurisdiction within the territory, 
 wherein they have been committed ^'. Such has been 
 the tenor of a long course of decisions in British 
 Courts of Law. " Penal Laws of Foreign Countries 
 are altogether local," says Lord Loughborough*", 
 " and affect nothing more than they can reach, and can 
 be seized by virtue of their authority." Mr. Justice 
 BuUer, in the same case ilpon a Writ of Error *^, says, 
 " it is a general principle that the Penal Laws of one 
 Country cannot be taken notice of by another Coun- 
 try." A similar doctrine has been frequently recog- 
 nised in the Courts of the United States of America. 
 Thus Chief Justice Marshall*^, in delivering the judg- 
 ment of the Supreme Court in the case of a foreign 
 vessel engaged in the Slave trade, which had been 
 captiu-ed by an American Cruizer, said, " the Courts 
 of no Country execute the Penal Laws of another 
 Country." So likewise Chief Justice Spencer, when 
 called upon in the District Court of New York to 
 give effect to a Law of Connecticut, said, "the 
 Defendant cannot take advantage of, nor expect the 
 Court to enforce the Criminal Laws of another State. 
 The Penal Acts of one State can have no operation in 
 another State. They are strictly local, and affect 
 nothing more than they can reach**." 
 
 " Story, Conflict of Laws, Eeports, p. 733. 
 § 620. *2 The Antelope, loWheaton, 
 
 " FoUiott V. Ogden, I. H. p. 123. 
 Blaokstone, p. 135. *' Scoville v. Canfield, 1 4 John- 
 
 *' Ogden V. FoUiott, 3 Term son's Eeports, p. 338. 
 
EIGHT or TKEATY. 407 
 
 § 237. Certain Jurists have maintained that a State civu Law 
 is under an obligation to punish Fugitives from Jus-mans*asto 
 tice, on the demand of the State from whose iuris-^^sitives 
 
 ^ »> from 
 
 diction they have withdrawn themselves**; in other Justice, 
 words, that a State is bound to allow its own Courts 
 to exercise its own Jurisdiction over foreigners in 
 respect of offences committed in Foreign Countries. 
 But these writers rest this question too exclusively 
 on the traditions of the Eoman Civil Law, which re- 
 garded the various States of Christendom as succeed- 
 ing to the relations, which formerly existed amongst 
 the Provinces of the Roman Empire. But the Roman 
 Law, if carefully examined, suggests another prin- 
 ciple, when it orders Fugitives from Justice to be 
 remitted to the forum delicti. The grounds, upon 
 which such remission indeed was founded, rest equally 
 upon the Imperial Supremacy, "Jure tamen civili 
 notandum, remissionibus locum fuisse de necessitate, 
 ut reus ad locum, ubi deliquerit, suo petente judice, 
 fuerit mittendus, quod omnes judices uni subessent 
 imperatori*^." It would thus seem that in either 
 case, whether the Criminal was tried in the place 
 where he was found, or sent back for trial to the 
 place where the crime had been committed, the Au- 
 thority under which^he trial or the remission of the 
 Criminal took place was one and the same, namely, 
 the Paramount Authority of the Emperor. 
 
 § 238. In the case of Nations there is no corre- Common 
 spending Paramount Authority to which all defer, and Nation. 
 Jurists are divided in opinion whether there is any 
 obligation upon a Nation to deliver up Fugitives from 
 Justice upon the demand of another Nation. States 
 
 "HertiusdeCollisioneLegum, " P. Voet de Statutis, s. XL 
 § 4. n. 18. P. Voet de Statut. 0. i. n. 6. 
 c. 4. n. 6. 
 
408 EIGHT OF TREATY. 
 
 have without a doubt a right to refuse an asylum to 
 the subjects of Foreign States. Martens designates 
 this right as Le Droit de Benvoi^^. From a passage 
 in a letter written by Sir Leoline Jenkins*' at Nime^ 
 guen to Mr. Secretary Williamson, (April 3, 1675,) it 
 would seem, as if the early Usage amongst Nations 
 had been for States to decline jurisdiction over fo- 
 reigners altogether, and to send them to their own 
 country to be tried by their Natural Judges, but that 
 such Usage had become obsolete in his time, as he 
 speaks of " the matter of renvoy being disused alto- 
 gether amongst Princes." Certain Jurists however 
 maintain, that according to the usage of Nations 
 States are obliged to refuse an asylum to the subjects 
 of Foreign States, who are accused of crimes which 
 affect the Public Peace and the security of Human 
 Society, and whose surrender to its Officers of Justice 
 is requested by the State, within whose territory the 
 crime has been committed. Grotius, Heineccius, Bur- 
 lamaqui, Yattel, Rutherforth, Bohmer, Schmel2ing, 
 Kent, and Pasquale Fiore maintain the affirmative 
 side of the question, whilst we find arrayed on the 
 negative side Puffendorf, Voet, Leyser, Martens, 
 Kliiber, Kluit, Saalfeld, Schmalz, Mittermaier, Man- 
 gin, Wheaton, Heffter, Ortolan, Bluntschli, and Phil- 
 limore. In the conflict of opinion amongst, such high 
 authorities we may safely have recourse to the prac- 
 tice of Nations. Great Britain, France, Russia, and 
 the United States of America, have repeatedly de- 
 clined to surrender up Fugitives from Justice on the 
 demand of Foreign Powers, with which they had no 
 Treaties to that effect, or in cases where the crimes 
 alleged did not come within the scope of any existing 
 
 *° Precis du Droit des Gens, §916. 
 
 *' Life of Sir Leoline Jenkins, vol. II. p. 714. 
 
RIGHT OF TREATY. 409 
 
 Treaty of Extradition. M. Fcelix seems to tave 
 stated the practice amongst Nations very correctly, 
 when he says that all Extradition is subordinate to 
 considerations of convenience and reciprocal interest*^. 
 The authorities of a State are not obliged to surrender 
 up a Criminal for the purpose of Extradition, except 
 where there exists between two States Treaties form- 
 ally applicable to the subject-matter. 
 
 § 239. Treaties of Extradition in their earliest Bxtradi- 
 form appear to have contained stipulations for the|^^jf^g 
 surrender of fugitive slaves, and Compacts with that ^''''^«° ^^'^ 
 object in view were not unusual amongst the Nations Barters, a 
 of Greece*^. It would appear to have been the prac- ^^ert of 
 tice amongst those Nations to afford sanctuary to^^®*J^y" 
 fugitive slaves, unless there was an International ment. 
 Compact to the contrary, or a provision to that effect . 
 embodied in some Treaty of Commerce. 
 
 It is obvious that wherever Personal Servitude is 
 recognised as a Legal Status, every attempt to change 
 that Status without the legal formalities of Emanci- 
 pation will.be a crime against the Law of the State, 
 and every fugitive slave will be ipso facto a Criminal 
 according to that law. We find accordingly an article 
 inserted ia the Constitution of the United States of 
 America (anno 1787), whereby the respective States 
 bound themselves to deliver up Fugitive Slaves on 
 the claim of the Slave-Master, notwithstanding the 
 Status of Slavery was not a Legal Status in some of 
 the States. " No person held to service or labour in 
 one State under the laws thereof, escaping into an- 
 other, shall in consequence of any law or regulation 
 therein be discharged from such service or labour. 
 
 *' Trait6 du Droit International Priv^, L. II. § 608. 
 " Titi Livii Historia, L. XLI. c. 424. 
 
410 EIGHT OF TREATY. 
 
 but shall be delivered up on claim of the party to 
 whom such service or labour may be due ^°." 
 
 The Treaties in modern times which bear most 
 analogy to the ancient Treaties for the surrender of 
 Fugitive Slaves are Treaties for the Extradition of 
 Deserters from the military or naval service of a State. 
 It is almost the universal practice of civilised Nations 
 to conclude with one another Treaties, which have the 
 latter object in view. The necessity for such Treaties 
 is obvious between Conterminous States, where their 
 military or maritime service is recruited by forced 
 levies raised either by Conscription or by Impress- 
 ment. 
 Extradi- §240. The earliest Treaties of Extraditiou amougst 
 PoUticai the Nations of Europe since the fall of the Roman 
 e^ep-^"^*' Empire appear to have been Treaties between Con- 
 tionai. terminous States such as England and Scotland (anno 
 1308), France and Savoy (anno 1378), for the sur- 
 render of Fugitives from Justice, who were charged 
 with the commission of crimes against the peace of 
 Society, such as murder, piracy, robbery, or forgery. 
 M. Foelix has reviewed the various Treaties which 
 exist upon this subject amongst the Nations of 
 Europe. France, Spain, Portugal, the Papal States, 
 Holland, Sardinia, Belgium, Switzerland, and Great 
 Britain, have severally entered into Treaties with 
 various other Powers for the surrender of Fugitives 
 
 '" Tte Constitution of the States, which under the Articles 
 
 United States, as distinguished of Confederation were declared 
 
 from the Articles of Confedera- to retain their Sovereignty, Free- 
 
 tion, bears some analogy to the dom, and Independence, and 
 
 Final Act of the Germanic Con- every Power, Jurisdiction, and 
 
 federation, as distinguished from Eight, which was not by such 
 
 the Federal Act. The provi- Confederation expressly dele- 
 
 sions of the Constitution have gated to the United States in 
 
 all the force of an International Congress assembled. 
 Compact between the respective 
 
RIGHT OF TREATY. 411 
 
 from Justice who have been guilty of crimes against 
 the person on against property ; but they have not 
 extended the engagements of such Treaties to per- 
 sons accused of Political Offences. On the other 
 hand, Eussia, Austria, Prussia, and the various other 
 States which composed the Germanic Confederation, 
 the Two Sicilies, Denmark, Norway, and Sweden, 
 have entered respectively into Treaties for the sur- 
 render of Fugitives from Justice, accused of High 
 Treason against the State from which they have es- 
 caped. Amongst the American States we find Trea- 
 ties of the former kind concluded by the United 
 States, and by BrazU, and of the latter kind by 
 Columbia, by Peru, and by Mexico. It will be seen 
 that the surrender of Political Offenders is rather 
 the exception than the rule of such Treaties. 
 
 Every Treaty of Extradition takes effect in regard 
 to crimes committed before it was concluded, unless 
 its operation shall be expressly restricted, but with 
 regard to the character of any crime alleged as war- 
 ranting the demand for the surrender of a Fugitive 
 from Justice, aU Treaties of Extradition are stricti 
 juris, being penal in their character and in exception 
 to the Common Law of Nations. Their operation 
 accordingly may not be extended beyond the letter 
 of their stipulations. 
 
 §24.1. Heffter has very aptly remarked that the Treaties of 
 very fact of the existence of so many special Treaties tioJfor the 
 respecting the Extradition of Fugitives from Justice ^^pP^ry. 
 is conclusive, that there is no such Usage amongst 
 Nations, which constitutes the surrender of such Fugi- 
 tives upon the demand of a State, whose laws have 
 been violated, a perfect obligation upon other States. 
 It is not unimportant to note, that Treaties of Ex- 
 tradition are for the most part made for a given term 
 
412 RIGHT or TEE AT Y. 
 
 of years ; as, for instance, the Treaty between Great 
 Britain and the United States, (Nov. 1 9-, 1 794 ^^,) was 
 in this respect limited in duration to twelve years. 
 This Treaty having expired in due course, in respect 
 of the XXyilth Article, which contained the provi- 
 sion for the Extradition of criminals, the United 
 States accordingly maintained upon a demand being 
 subsequently made by the British Government for 
 the surrender of Daniel Sullivan, a British Subject, 
 the master of a British Schooner, the Maria, who had 
 run away with the Schooner and her cargo, and car- 
 ried them into Mount Desart in the State of Maiae, 
 that as the engagement of the Treaty was for a 
 limited time and had not been renewed, the United 
 States were not under any obligation by the Common 
 Law of Nations to restore the vessel and to deliver 
 up the master and crew who had carried her off. 
 Mr. Wirt, the Attorney General of the United States, 
 in the legal opinion which he submitted to his Govern- 
 ment, (Nov. 20, 1 82 1,) stated, that he considered there 
 was nothing in the Law of Nations, as explained by 
 the Usage and Practice of the most respectable among 
 them, which imposed on the United States any obli- 
 gation to dehver up the Fugitives ^^. The Treaty of 
 Washington, sometimes called the Ashburton Treaty, 
 has been subsequently (August 9, 1842) concluded 
 between the United States and Great Britain, under 
 which the Extradition of the slave Anderson ^^, who 
 
 " Martens, Eeoueil, V. p. 686. ^' The Extradition of Ander- 
 Art. XXI. provided for lie Ex- son was demanded on a charge 
 tradition of all persons charged of murder. He was not deli- 
 with the commission of murder vered up, as the Court of Com- 
 er forgery within the jurisdiction mon Pleas in Canada, on motion 
 of either State. for a Habeas Corpus to discharge 
 
 ^'^ Opinions of the Attorney him from the custody of the 
 
 Generals of the United States, gaoler, to which he had been 
 
 I. p. 391. committed under a Magistrate's 
 
RIGHT 01" TREATY. 413 
 
 had escaped from the State of Missouri into Canada, 
 was demanded : but there is in this Treaty an ^- 
 press provision that the tenth Article, which pro- 
 vides for the Extradition of Fugitives from Justice, 
 shall continue in force until one or the other of 
 the parties shall signify its wish to terminate it, 
 and no longer. The Tenth Article is in the fol- 
 lowing terms ; " It is agreed that Her Britannic 
 Majesty and the United States shall, upon mutual 
 requisitions by them or their ministers, officers, or 
 authorities respectively made, dehver up to justice 
 all persons who, being charged with the crime of 
 murder, or assault with intent to commit murder, or 
 piracy, or arson, or robbery, or forgery, or the utter- 
 ance of forged paper, committed within the jurisdic- 
 tion of either, shall seek an asylum, or shall be found 
 within the territories of the other; provided, that 
 this shall only be done upon such evidence of Crimi- 
 nality, as according to the Laws of the place where 
 the fugitive or person so charged shall be found, 
 would justify his apprehension and commitment for 
 trial, if the crime or oflPence had there been com- 
 mitted ; and the respective Judges and other Magis- 
 trates of the two Governments shall have power, 
 jurisdiction, and authority, upon complaint made 
 under oath, to issue a warrant for the apprehension 
 of the fugitive or person so charged, that he may be 
 brought before such Judges or other Magistrates 
 
 warrant, found that there were of Queen's Bench in Westminster 
 
 Bome informalities in the pro- Hall for the Writ, which was 
 
 ceedings before the Magistrate, granted. Before, however, the 
 
 and Erected him to be dis- Writ from Westminster Hall 
 
 charged. The Court of Queen's could be served in Canada, the 
 
 Bench in Canada had refused to Court of Common Pleas in that 
 
 grant a Writ of Habeas Corpus, Province had ordered the dia- 
 
 and the friends of Ajiderson had charge of the fugitive, 
 thereupon applied to the Court 
 
414 RIGHT OP TREATY. 
 
 respectively, to the end that the evidence of Crirai- 
 nahty may be heard and considered ; and if on such 
 hearing, the evidence be deemed sufficient to sustain 
 the charge, it shall be the duty of the examining 
 Judge or Magistrate to certify the same to the proper 
 executive authorities, that a warrant may issue for 
 the surrender of such fugitive. The expense of such 
 apprehension and delivery shall be borne and defrayed 
 by the party who makes the requisition and receives 
 the fugitive ^\" 
 
 The next following Treaty of Extradition, in re- 
 gard to Fugitives from Justice, which Great Britain 
 entered into with a Foreign State, was the Treaty 
 of London, (Feb. 13, 1843,) concluded with France 
 for the surrender in certain cases of Fugitives from 
 Justice. By Art. I, it was agreed that the High 
 Contracting Parties should, on requisitions made in 
 their name through the medium of their respective 
 Diplomatic Agents, deliver up to justice persons who, 
 being accused of the crimes of murder, (comprehend- 
 ing the crimes designated in the French Penal Code 
 by the terms assassination, parricide, infanticide, and 
 poisoning,) or of an attempt to commit murder, or 
 of forgery, or of fraudulent bankruptcy committed 
 within the jurisdiction of the requiring Party, should 
 seek an asylum, or should be found within the terri- 
 tories of the other : provided that this shall be done 
 only when the commission of the crime shall be so 
 established, as that the laws of the country where 
 the fugitive or person so accused shall be found, 
 would justify his apprehension and commitment for 
 trial, if the crime had been there committed. 
 
 Consequently, on the part of the French Govern- 
 ment, the surrender was to be made only by the 
 " Hertslet, VI. p. 859. Martens, N. K. G6n. HI. p. 456. 
 
RIGHT OF TREATY. 415 
 
 authority of the Keeper of the Seals, Minister of 
 Justice, and after the production of a warrant of 
 arrest, or other equivalent judicial Document, issued 
 by a Judge, or other competent Authority in Great 
 Britain, clearly setting forth the facts for which the 
 fugitive should have rendered himself accountable ; 
 and on the part of the British Government, the sur- 
 render was to be made only on the report of a Judge 
 or Magistrate duly authorised to take cognisance of 
 the acts charged against the fugitives in the warrant 
 of arrest or other equivalent judicial document, 
 issued by a Judge or competent Magistrate in 
 France, and likewise clearly setting forth the said 
 acts. 
 
 The expense of any detention and surrender made 
 in the preceding Article was to be borne and de- 
 frayed by the Government, in whose name the re- 
 quisition should have been made. 
 
 It was further provided that the Convention should 
 not apply in any manner to crimes of murder, forgery, 
 or fraudulent bankruptcy committed antecedently to 
 the date thereof 
 
 The Convention itself was to be in force until the 
 1st of January, 1844, after which date either of the 
 High Contracting Parties was to be at liberty to 
 give notice to the other of its intention to put an 
 end to it, and it was to cease and determine at the 
 expiration of six months from the date of such 
 notice ^^. 
 
 It will be seen that the stipulations of both these 
 Treaties applied to aU persons indiscriminately, who 
 might be charged with any of the enumerated crimes, 
 without any regard to their Nationality. A Con- 
 vention of Extradition, comprising a much greater 
 "' Hertslet, VI. p. 345. Martens, N. E. G6n. V. p. 20. 
 
416 RIGHT OF TREATY. 
 
 number of crimes, but specially excepting native sub- 
 jects or citizens of the party upon whom the requi- 
 sition might be made, was signed at London (May 28, 
 1852) betlvefen France and Great Britain ^^ It was 
 provided by the Fifteenth Article, that the Conven- 
 tion should come into operation when an Act of Par- 
 liament should have passed to enable her Britannic 
 Majesty to carry into execution the arrangements pf 
 the Convention ; but the British Parliament declined 
 to give the Executive Government the necessary 
 Powers to execute its provisions, and the Conven- 
 tion which is now in force between Great Britain 
 and France, is of a later day, namely, August 14, 
 1876. 
 
 ^242. Prior to the year 1870 the Executive Govern- 
 ment of Great Britaiu had no power to give effect to 
 Treaty-Stipulations with Foreign Governments "for 
 the surrender of Fugitives from Justice without a 
 special Act of Parliament authorising it in each case 
 to give effect to the treaty, but in 1870 a Statute 
 (33 and 34 Vict. ch. 52) was passed giving power to 
 the Crown to apply by Order in Council its provisions 
 to any treaty arrangement with a Foreign Power for 
 the surrender of criminals accused of any of the crimes 
 contained in a Schedule appended to the Statute, but 
 prohibiting the surrender of any fugitive for an 
 offence of a political character. This Statute was 
 amended by a subsequent Act, passed in 1873 (36 
 and 37 Vict. ch. 60), which brought offences com- 
 mitted before 1870 within the provisions of 33 and 
 34 Vict. ch. 52, and added considerably to the 
 Schedule of Extradition offences, including amongst 
 them offences against the Slave Trade Acts. A Royal 
 Commission on Extradition was subsequently ap- 
 ^_ British and Foreign State Papers, yoI. XLI. p. 20. 
 
RIGHT OF TREATY. 417 
 
 pointed in 1877, and their Report was published in 
 1878, and the tenor of their Eeport was to recommend 
 that Statutory Powers should be granted to the 
 proper British authorities to deliver up fugitive 
 criminals, whose surrender should be asked for, not- 
 withstanding there might be no treaty to that effect 
 with the State against whose laws the offence has 
 been committed. Such Statutory Powers however 
 should be extended only to those States, to which it 
 should be declared from time to time to apply by 
 Order in Council, The principle upon which the 
 Report proceeded was twofold; first, that it is the 
 common interest of mankind that offences which 
 militate against the good order of society should be 
 repressed by punishment ; and secondly, that it is for 
 the interest of the State, within whose territory a 
 criminal may have' taken refuge, that he should not 
 remain at large within it. The Commissioners further 
 recommended that the list of Extradition offences 
 should include aU those offences which it is the common 
 interest of mankind to suppress, but that offences of 
 a local or poKtical character should be excluded, 
 nevertheless that a political motive should not be 
 allowed to give immunity to a fugitive for a crime, 
 which in itself, and apart from such motive, would be 
 classed as an Extradition offence. 
 
 § 243. Treaties of Boundary belong to a class ofTreatieBof 
 Treaties, which are regarded .by Jurists as perpetual "" ''^' 
 in their nature; so that, being once carried into 
 effect, they subsist independently of any changes 
 which may supervene in the political circumstances 
 of either contracting party, unless they are mutually 
 revoked. VatteP' speaks of Compacts which have 
 no relation to the performance of reiterated acts, but 
 " Droit des Gens, L. II. § 292. 
 
 PART I. E e 
 
418 RIGHT OF TREATY. 
 
 merely relate to transient and single acts, wMcli are 
 concluded at once, and suggests that they may be 
 more properly called by another name than that of 
 Treaties. Martens ^^ has accordingly proposed to call 
 them Transitory Conventions, which Wheaton ap- 
 proves. "Les Trait^s de cession," says Martens, "des 
 limites, d'dchange, et ceux mSme qui constituent 
 une servitude de Droit Public, ont la nature des Con- 
 ventions transitoires ; les Trait^s d'amiti^ de com- 
 merce, de navigation, les alliances 6gales et in^gales 
 ont celle des Trait6s proprement dits (fcedera). Les 
 Conventions Transitoires sont perpdtuelles par la 
 nature de la chose." 
 
 To the same effect Mr. Wheaton ^'' says, " General 
 Compacts between Nations may be divided into what 
 are called Transitory Conventions, and Treaties pro- 
 perly so called. The first are perpetual in their 
 nature, so that, being carried into effect, they subsist 
 independently of any change in the sovereignty and 
 form of Government of the Contracting Parties ; and 
 although their operation may in some cases be sus- 
 pended during war, they revive on the return of 
 peace without any express stipulation. Such are 
 Treaties of Cession, Boundary, or Exchange of Ter» 
 ritory, or those which create a permanent Servitude 
 in favour of one Nation within the Territory of 
 another. 
 
 The principle involved in the doctrine of Jurists, 
 that such Treaties are perpetual in their nature, may 
 be thus stated. The International Acts, which have 
 in view the settlement of a territorial boundary, are 
 in substance Declarations or Eecognitions of a Na- 
 tion's title to a given territory, although they assume 
 
 ^^ Martens, Precis, § 58. 
 
 " Wheaton's Elements, Part III. c. 2. § 58. 
 
BIGHT OF TREATY. 419 
 
 for the most part the form of Compacts, The form 
 has come into use, partly because articles for the ces- 
 sion of territory or for the settlement of a territorial 
 boundary between belligerents are frequently com- 
 prised amongst the articles of a Treaty of Peace, 
 partly because that form has been considered to confer 
 upon the transaction a more binding character, than 
 that which might be supposed to attach to a simple 
 Declaration. But a Treaty of Boundary, as an Agree- 
 ment or Convention, does not exercise any more per- 
 manently binding force upon the parties vigore suo, 
 than any other Treaty. The more correct view would 
 seem to be, that the arrangements under the Treaty 
 derive their character of permanence not from the 
 Treaty, but from the Common Law of Nations, inas- 
 much as when a Nation has once recognised another 
 Nation to be in lawful Possession of a territory, the 
 Eight of Possession of the latter is thereby established 
 against the former Nation, whatever changes may sub- 
 sequently arise in their mutual relations, as friends 
 or foes. The Common Law of Nations maintains the 
 latter Nation in its State of Possession, whenever 
 such Possession has had a lawful origin, and the for- 
 mer Nation is by that Law for ever precluded from 
 challenging the lawful origin of a State of Possession, 
 which it has once solemnly recognised. 
 
 § 244. The Practice of Nations accords perfectly Judicial 
 with the doctrine of Jurists in this matter. Thus a as^to th^ 
 question was raised before an English Tribunal touch- owroT* 
 ing the interpretation of the Ninth Article of the Certain 
 Treaty of 1794^*, between Great Britain and the 
 United States of America, which is as follows : " It is 
 agreed that British Subjects, who now hold lands in 
 the territories of the United States, and American 
 
 ^^ Martens, Recueil,V. p. 662. 
 E e 3 
 
420 RIGHT OF TEEATY. 
 
 Citizens, who now hold lands in the dominion of his 
 Majesty, shall continue to hold them according to the 
 nature and tenure of their respective states and title 
 thereto, and may grant, sell, or devise the same to 
 whom they please, in like manner as if they were 
 Natives : and that neither they nor their heirs and 
 assigns shall, so far as may respect the said lands and 
 the legal remedies incident thereto, be regarded as 
 Aliens." The question raised in the EoUs Court '^ in 
 this case in 1830 was, whether by the Article above 
 recited "American Citizens, who held lands in Great 
 Britain on the 28th day of October, 1795, are at all 
 times to be considered, as far as regards those lands, 
 not as Aliens, but as Native Subjects of the Crown of 
 Great Britain." 
 
 The 28th Article of the Treaty had declared that 
 the ten first Articles should be permanent, but the 
 Counsel in support of the objection to the title con- 
 tended that " it was impossible to suggest that the 
 Treaty was continuing in force in 1 8 1 3, as it necessa- 
 rily ceased with the commencement of the War ; that 
 the 37 G. III. c. 97 (which was passed to give effect 
 to the Treaty) could not continue in operation a mo- 
 ment longer without violating the plainest words of. 
 the Act ; that the word ' permanent ' was used not as 
 synonymous with ' perpetual or everlasting ' but in 
 opposition to a period of time expressly limited." On 
 the other hand, the Counsel in support of the title 
 maintained, that "the Treaty contained Articles of two 
 different descriptions, some of them being temporary, 
 others of perpetual obligation. Of those which were 
 temporary, some were to last for a limited period, 
 such as the various regulations concerning trade and 
 navigation, and some were to continue so long as Peace 
 "" Sutton V. Sutton, i Russell v. Mylne, p. 663. 
 
BIGHT OP TREATY. 421 
 
 subsisted, but, being inconsistent with a state of War, 
 would necessarily expire with the commencement of 
 hostilities. There were other stipulations, which were 
 to remain in force in all time to come unaffected by 
 the contingency of Peace or War, For instance, there 
 were clauses for fixing the boundaries of the United 
 States. Were the boundaries so fixed to cease to be 
 the boundaries the moment that hostilities broke 
 out 1 " 
 
 Sir John Leach, who at such time filled the oflSce of 
 Master of the Bolls, in pronouncing judgment said, 
 " The privileges of Natives being reciprocally given, 
 not only to the actual possessors of lands, but to their 
 heirs and assigns, it is a reasonable construction that 
 it was the intention of the Treaty, that the operation 
 of the Treaty should be permanent and not depend 
 upon the continuance of a state of Peace." 
 
 " The Act of 57 G. III. c. 95 gives full effect to this 
 Article of the Treaty in the strongest and clearest 
 terms ; and if it be, as I consider it, the true con- 
 struction of this Article, that it was to be permanent 
 and independent of a state of Peace or War, then the 
 Act of Parliament must be held in the 24th Section 
 to declare this permanency, and when a subsequent 
 Section provides that the Act is to continue in force, 
 so long only as a state of Peace shall subsist, it cannot 
 be construed to be directly repugnant and opposed to 
 the 24th Section, but is to be understood as referring 
 to such provisions of the- Act only as would in their 
 nature depend upon a state of Peace. The principle 
 involved in the permanency of this Treaty would 
 seem to be, that' the Treaty was in substance a recog- 
 nition of a title to lands on the part of the actual pos- 
 sessors of those lands and their heirs, and that it 
 would be inconsistent with such a recognition for the 
 
422 RIGHT OP TREATY, 
 
 possessors at any time to be regarded as Aliens in 
 respect of those lands." 
 
 The American Tribunals have adopted a similar 
 rule of interpretation. Thus Mr. Justice Washington, 
 in delivering judgment in a case before the Supreme 
 Court of the United States ^°, said, " But we are not 
 inclined to admit the doctrine urged at the Bar, that 
 Treaties become extinguished i^so facto by war be- 
 tween the two Governments, unless they should be 
 revived by an express or implied renewal on the re- 
 turn of Peace. Whatever may be the latitude of 
 doctrine laid down by elementary writers on the Law 
 of Nations dealing in general terms in relation to this 
 subject, we are satisfied that the doctrine contended 
 for is not universally true. There may be Treaties of 
 such a nattu:e as to their subject and import, as that 
 War wiU put an end to them, but where Treaties 
 contemplate a permanent arrangement of Territorial 
 and other National Rights, or which in their terms 
 are meant to provide for the event of an intervening 
 War, it would be against every principle of just inter- 
 pretation to hold them extinguished by the event of 
 War. If such were the Law, even the Treaty of 1 783, 
 so far as it fixed our limits, and acknowle.dged our in- 
 dependence, would be gone, and we should have had 
 again to struggle for both upon original revolutionary 
 principles. Such a construction was never asserted, 
 and would be so monstrous as to supersede all rea- 
 soning. 
 
 " We think, therefore, that Treaties stipulating for 
 permanent rights and general arrangements, and pro- 
 fessing to aim at perpetuity, and to deal with the 
 case of War as well as of Peace, do not cease on the 
 
 °° The Society for the Propagation of the Gospel in Foreign Parts, 
 V. the Town of Newhaven. Wheaton's Reports, VIII. p. 494. 
 
EIGHT OP TREATY. 423 
 
 occurrence of War, but are at most only suspended 
 while it lasts ; and unless they are waived by the 
 Parties, or new and repugnant stipulations are made, 
 they revive in their operation at the return of Peace." 
 
 § 245. Martens speaks of Treaties which create a Treaties 
 Servitude of Public Law (une servitude du Droit CTeate a 
 Public) in favour of one Nation within the territory of ^^ p^^j^f 
 another. The term Servitude is borrowed from the Law. 
 Civil Law of the Romans, where it is used to desig- 
 nate certain forms of innocent use ; as for instance, a 
 Eight of Way across the land of a neighbour. A 
 Servitude was distinguished by the Roman Jurists 
 from a Bight, and in order to convert a Servitude into 
 a Bight, some compact or stipulation to that effect 
 was requisite. " Si quis velit vicino aHquod jus con- 
 stituere, pactionibus atque stipulationibus id efficere 
 debet *^" The Right ot innocent use is only an Imper- 
 fect Right, but under certain circumstances a Eight 
 of Innocent Use may be likewise a Eight of Neces- 
 sity. Thus the Midchannel of a river may be the 
 territorial boundary between two Nations, whilst 
 neither Nation may be able to gain access by the 
 Eiver to its own ports owing to the set of the current 
 or the force of the wind without passing over portions 
 of the river which belong to the other Nation ; or the 
 territory of a Nation may be surrounded by the terri- 
 tory of another Nation, and the former may have no 
 means of access to the open Sea without passing over 
 the Territory of the latter Nation. Thus the Terri- 
 tory of the Swiss Confederation is enclosed on all sides 
 by the Territory of other Nations, so that, tmtil the 
 Treaty of Vienna declared the navigation of the Rhine, 
 amongst the other Great European Rivers, to be 
 free to all Nations, the Swiss Nation had not any 
 " Justiniani Inst. L. II. Tit. II. De Servitutibus. 
 
424 RIGHT OF TREATY. 
 
 access to the open Sea, except by passing over the 
 territory of another Nation. Again, a Nation may have 
 some portions of its territory separated from the rest 
 of its territory by the territory of another nation ; thus 
 the Rhenish Provinces of Prussia are separated by the 
 territories of other German Powers from the North 
 German and Polish Provinces of Prussia. Under cir- 
 cumstances of this nature a Treaty, which creates a 
 Servitude, in other words, which establishes a Eight of 
 Way across the territory of one Nation in favour of 
 another Nation, is held to create an obligation, which 
 may be suspended indeed by the occurrence of War, 
 but which revives on the return of Peace. Kliiber 
 has given to the expression Servitude ^^ a much larger 
 interpretation, so much so, that if his use of the 
 term be correct, it would seem doubtful whether it 
 could be safely maintained, that all Conventions, 
 which create a Servitude of Public Law in favour of 
 one Nation within the territory of another, are per- 
 petual in their nature, and are not extinguished 
 by the event of war. Mr. Wheaton ^^ is careful in 
 limiting his own position of law to treaties which 
 create "a permanent Servitude," about which there 
 can arise no dispute. 
 Treaties of § 246, The class of International Compacts which 
 Unequal havc Mtherto been under consideration are Compacts, 
 AUianoe. •ypliich coustitute obligations between the Contracting 
 Parties absolutely, as between themselves, and with- 
 out any regard to third Parties. There is another 
 large class which remains to be considered, under 
 which Nations contract obligations towards one an- 
 other in respect of third Parties, such as Treaties of 
 Alliance, or of Protection, or of Guaranty, or of Sub- 
 sidy. Treaties of Alliance are subdivided by Grotius 
 "^ Droit des Gens, §§ 137, 138. "» Elements, Part III. c. 11. § 9. 
 
RIGHT OF TREATY. 425 
 
 into Equal and Unequal Treaties. A Treaty of Alli- 
 ance upon equal conditions is made for the mutual 
 security of the Contracting Parties, and it may be 
 either limited to defensive purposes against a particu- 
 lar Enemy, in which case it was termed by the Greeks 
 eTn/xax'a, or it may extend to offensive as well as to 
 defensive purposes, and it was then termed by them 
 (rvfjLfiaxta. An eq\\al Treaty of AUiance does not ne- 
 cessarily contain identical conditions for each Party. 
 Vattel draws a distinction between an Equal Treaty 
 and an Equal Alliance. Equal Treaties, he says **, are 
 those in which the Contracting Parties promise the 
 same things, or things that are equivalent, or finally 
 things that are equitably proportioned, so that the 
 Qondition of the Parties is equal. Such is, for exam- 
 ple, a defensive AlHance, in which the Parties recipro- 
 cally stipulate for the same succours. Such is an 
 offensive Alliance, in which it is agreed that each of 
 the Allies shall furnish the same number of vessels, or 
 the same number of troops, of cavalry and of infantry, 
 or an equivalent in vessels, in troops, in artillery or in 
 money. Such is also a League in which the Quota Pars 
 of each of the Allies is regulated in proportion to the 
 interest which he takes or may have in the design of 
 the League. Thus the Emperor of the Germans and 
 the King of England, in order to induce the States- 
 General of the United Provinces to accede to the 
 Treaty of Vienna (March lo, 1 73 1), consented that the 
 Bepublic should only promise to her Allies the assist- 
 ance of four thousand foot and one thousand horse, 
 though they engaged each to furnish it, in case it 
 should be attacked, with eight thousand iafantry and 
 four thousand cavalry. Further, there may be in- 
 cltided in this class Treaties, which stipulate that the 
 ^ Droit cles Gens, L. II. § 172. 
 
426 BIGHT OF TREATY. 
 
 Allies shall make common cause with one another, and 
 act with aU their forces ; although their forces may be 
 in fact unequal, they are willing in this instance to 
 consider them as equal. Equal Alliances on the other 
 hand, according to Vattel, are those in which an Equal 
 treats with an Equal, no distinction of dignity being 
 made between the contracting Parties, whilst Unequal 
 Alliances are those which make a difference in the 
 dignity of the Contracting Parties. It may well 
 happen indeed that a Treaty of Equal Alliance is not 
 at the same time an Equal Treaty ; but it can rarely 
 happen that a Treaty of Unequal AUiance is not at 
 the same time an Unequal Treaty. Thus a powerful 
 Monarch wishing to engage a weaker State in his 
 interest, offers to it very advantageous conditions, 
 and promises gratuitous succours, or succours dispro- 
 portionate to those for which he stipulates in return, 
 whilst he claims at the same time a superiority of 
 dignity, and exacts proportionate respect from his 
 Ally. It is this last condition which renders the- 
 Alliance unequal ; without such a condition the Treaty 
 would have been unequal, but the Alliance would have 
 been equal. 
 
 Unequal Alliances are subdivided into those which 
 impair the Independence of one of the Contracting 
 Parties, and those which do not impair it. The In- 
 dependence of a Nation is impaired, when it gives up 
 any of its Natural Bights, or consents to use them in 
 absolute subordination to the will of another Nation. 
 Thus a Nation may agree with another Nation not 
 to make peace with a common Enemy or not to make 
 war upon a third Party, and it does not thereby give 
 up its Independence, but covenants to exercise a Eight 
 incident to its Independence under certain restrictiotfg 
 in favour of its AUy. But if a Nation agrees not to 
 
BIGHT OF TREATY. 427 
 
 enter Into a Treaty of any kind with' any third Party 
 without the consent of its Ally, the former contracts 
 an Unequal Alliance cum diminutione imperii, for it 
 deprives itself absolutely of a power, the possession 
 of which is a condition sine qua non of National 
 Independence. 
 
 § 247. Treaties of Protection are Treaties in the Treaties of 
 nature of Unequal Alliance. They were in frequent ^'■°'*°''*'°- 
 use amongst the Greeks and Romans, and the expres- 
 sion infidem se trader e is opposed by Latin authors 
 to the phrase in servitutem se tradere. Thus Phseneas, 
 the envoy of the ^tolians, announced to the Consul 
 Atilius that the object of his Mission was to conclude 
 a Treaty of Protection, and not a Treaty of Subjec- 
 tion to the Romans. " Non in servitutem, sed in 
 fidem tuam nos tradimus, et certum habeo te impru- 
 dentia labi, qui nobis imperes ^^." So the Numidians 
 were considered to have placed themselves under 
 Treaty in a relation to the Romans analogous to that 
 in which Clients stood towards their Patrons. " Quo- 
 rum in fide et in clientela Regnum (Numidia) erat ^^." 
 " As Private Protection," says Grotius ", " took not 
 away Personal liberty, so Public Protection does not 
 take away Civil liberty, which cannot be conceived 
 without Sovereignty." That the maintenance of 
 National Independence on both sides is not inconsist- 
 ent with a Treaty of Protection between two States 
 is established by the practice of Nations in modern 
 times. Thus the City of Danzic, with a territorial 
 radius of two leagues, was placed by the Treaty of 
 Tilsit ** under the Protection of the Kings of Prussia 
 
 == Titi Livii Hist. L. XXXVI. '' Treaty between France and 
 
 c. 28. Eussia, 7 July, 1807. Martens, 
 
 '^ Julii Flori L. III. c. i. n. 3. Kecueil, VIII. p. 639. 
 " DeJureB.etP.,L.I.c.3.§2i. 
 
428 EIGHT OP TEEATY, 
 
 and of Saxony, without prejudice to its Independence j 
 so the free City of Cracow was declared by the Final 
 Act of the Congress of Vienna, to be a Free Indepen- 
 dent and strictly Neutral City under the protection 
 of Prussia, Austria, and Eussia. The form, under 
 which Treaties of Protection may be concluded, varies 
 indefinitely. Modern Treaties of Protection, for the 
 most part, provide that the Protecting Power shall 
 keep garrison within the Protected State, and this 
 may be considered as the characteristic feature of a 
 Treaty of Protection as distinguished from a Treaty 
 of Unequal Alliance. Thus by the Treaty of Turin 
 (Nov. 7, 1817) ^*, concluded between the King of Sar- 
 dinia and the Prince of Monaco, it was stipulated that 
 the King of Sardinia should always maintain a garrison 
 of five hundred men at his own expense in Monaco. 
 The King of Sardinia also undertook to defend the 
 Prince of Monaco against foreign enemies, to include 
 his name in Treaties of Peace with Foreign Powers, 
 and to allow him to use the Eoyal Standard of Sar- 
 dinia in time of War. 
 Treaties of ^248. Treaties of Subsidy are Treaties under which 
 a Power, which does not take part in a war as a 
 Principal, furnishes a limited succour to another 
 power, as an Auxiliary. Treaties of General Alli- 
 ance are to be distinguished from Treaties of Subsidy. 
 When one State stipulates to furnish to another a 
 limited succour of troops in return for an annual pay- 
 ment of money, without any provision in contempla- 
 tion of an eventual engagement in general hostilities, 
 such a Treaty does not render the State, which fur- 
 nishes such limited succour, an associate in any war 
 that the other State may undertake. The payment, 
 which the Power, that receives such limited succour, 
 '° Martens, Nouveau Supplement, II. p. 243. 
 
 Subsidy. 
 
RIGHT OF TREATY; 429 
 
 miakes in return, is called a Subsidy, and it was at one 
 time the practice both of France and Great Britain 
 to have recourse to Treaties of Subsidy with certain 
 German Powers in order to procure troops to carry- 
 on their wars< Of this kind was the treaty of Subsidy 
 concluded between the King of Great Britain and 
 the Landgrave of Hesse-Darmstadt (Oct. 5, 1 793) ''", 
 under which the latter Power undertook to furnish 
 to the former for three years a corps of 3000 troops 
 of all arms for service in any part of Europe, in con- 
 sideration of an annual Subsidy. - Under the head of 
 Treaties of Subsidy may be classed the Conventions, 
 which formerly existed between the Helvetic Cantons 
 and various European Powers, under which the former 
 furnished Swiss Kegiments for the service of the 
 latter Powers. These Conventions are sometimes 
 called Military Capitulations, and such is the name 
 given to a Convention, which Spain concluded at 
 Berne (Aug. 2, 1804)''* with the Helvetic Confedera- 
 tion for the continuous services of five Regiments 
 during the space of thirty years. There is another 
 use of the phrase Treaty of Subsidy which must not 
 be overlooked. A Treaty of Subsidy becomes virtually 
 a Treaty of Alliance, when one Power enters into an 
 agreement with another Power, that the latter shall 
 furnish troops to fight against a Third Power, on 
 condition of the former finding money for the main- 
 tenance of them. A Treaty of Subsidy for such an 
 object is sometimes incorporated with a Treaty of 
 Alliance. Thus we have a Convention of AUiance 
 and Subsidy concluded at Reichenbach (June 15, 
 
 "> Martens, EfiCueil,V.p. 524. Constitution of the Swiss Con- 
 
 " Martens, Eecueil, VIII. p. federation. " II ne peut-@tre con- 
 
 228. Capitulations of this kind clu de capitulations militaires." 
 
 are forbidden under the present Art. XI. 
 
430 RIGHT OP TEEAT?. 
 
 1813) ''^, between Great Britain, Eussia, and Prussia; 
 under which the former Power engaged herself to 
 furnish 1,133,334 pounds sterling, before the expira- 
 tion of twelve months, and to maintain the Eussian 
 fleet, which was at such time in the Ports of Great 
 Britain, at an estimated expenditure of 550,000 
 pounds sterling. A Subsidy is sometimes an alter- 
 native provision in a Treaty of Alliance. Thus imder 
 the Treaty of Alliance concluded at Berlin '^ (April 15, 
 1 788), between the States-General of the United Pro- 
 vinces and Prussia, the former Power had the alter- 
 native of furnishing money, if it could not furnish 
 troops. A separate Convention of Subsidy is some- 
 times agreed to as supplemental to a Military Con- 
 vention ; this practice' is generally observed when all 
 the parties to the Military Convention are not at 
 the same time parties to the Convention of Subsidy, 
 Thus after a Military Convention had been concluded 
 between Sardinia, Great Britain, and France at Turin 
 (Jan.. 26, 1855), a supplemental Treaty of Subsidy 
 was concluded between Sardinia and Great Britain''*, 
 under which the Queen of Great Britain undertook 
 to recommend to her Parliament to advance by way 
 of loan to the King of Sardinia the sum of one 
 million pounds sterling. The King of Sardinia had 
 agreed, under the previous Military Convention, to 
 famish for the service of the war against Eussia a 
 corps of 15,000 men; and France and Great Britain 
 had in return guaranteed the integrity of the do- 
 minions of the King of Sardinia, and engaged them- 
 selves to defend them against every attack pending 
 the war. 
 Treaties of ^ 249. Treaties of Guaranty are Compacts under 
 
 Guaranty. 
 
 " Martens, N. K. I. p. 568. ''^ Martens, Eecueil.IV. p. 379. 
 ■"■ Martens, N. E. G6n. XV. p. 613. 
 
BIGHT OF TREATY. 43 i 
 
 which a State promises to aid another State, if it 
 should be disturbed in the enjoyment of a Conven- 
 tional Eight as distinguished from a Natural Right. 
 When a Treaty of Peace is concluded, which proceeds 
 upon a settlement of territorial boundary, it is not 
 unfrequent to invoke the Guaranty of one or more 
 powerful States to maintain the weaker of the two 
 contracting Parties in the State of Possession esta- 
 blished by the Treaty. " When those," says Vattel, 
 " who make a Treaty of Peace or any other Treaty 
 are not perfectly easy with respect to its observance, 
 they require the Guaranty of a powerful Sovereign. 
 The Guarantor promises to maintain the conditions 
 of the Treaty and to cause it to be observed. As he 
 may find himself obliged to make use of force against 
 the party who attempts to violate his promises, it is 
 an engagement that no Sovereign ought to enter into 
 lightly and without good reason. Princes indeed 
 seldom enter into it, unless when they have an in- 
 direct interest in the observance of the Treaty, or 
 are induced by particular relations of friendship. 
 The Guaranty may be promised equally to all the 
 contracting parties, to some of them, or even to one 
 of them alone, but it is commonly promised to all 
 in general. It may also happen when several Sove- 
 reigns enter into a common alliance that they all 
 reciprocally pledge themselves to each other, as 
 Guarantors for its observance. The Guaranty is 
 a kind of Treaty by which assistance and succour 
 are promised to some one, in case he has need of 
 them, in order to compel a faithless Ally to fulfil 
 his engagements'^." 
 
 " The term Guaranty," continues the same writer, 
 " is often taken in a sense somewhat different from 
 " Droit des Gens, L. II. o. 15. § 235. 
 
432 RIGHT OF TREATY. 
 
 that we have given to it. For instance, most of 
 the Powers of Europe guaranteed the Act, by which 
 Charles VI had regulated the Succession to his domin- 
 ions, and Sovereigns sometimes reciprocally guarantee 
 their respective States. But we should rather deno- 
 minate those transactions Treaties of Alliance for the 
 purpose, in the former case, of maintaining the Rule 
 of Succession under the Pragmatic Sanction ; and in 
 the latter, of supporting the State of Possession of 
 a Friendly Power ^6." 
 
 To the same effect Kliiber " writes, " L'une des plus 
 usit^es des Conventions, dont, nous nous occupons, 
 est la Garautie proprement dite, par laquelle un fitat 
 promet de prater secours k un autre J^tat, dans le 
 cas oil celui-ci serait l^s^ ou menac^ d'un prejudice 
 dans I'exercice de Droits determines par le fait d'une 
 tierce puissance. La Garantie est toujours promise 
 par rapport h. une tierce puissance, de la part de 
 laquelle il pourrait 6tre port^ prdjudice k des droits 
 acquis.". . . § 158. "Lorsque la Garantie est destinde 
 k assurer 1' inviolability d'un Traite, elle forme tou- 
 jours une obligation et un Traitd accessoire (pactum 
 accessorium), m§me quand elle ferait partie de 
 I'acte principal.". . . § 159. "Les Garanties sont 
 g^ndrales ou sp^ciales, selon que tons les droits 
 d'une espfece d^terminee, ou toutes les possessions 
 d'un £tat, ou toutes les stipulations contenues dans 
 un Traits, ou bien une partie seulement de ces droits, 
 possessions, ou stipulations, sont garantis. Tant6t 
 elles sont stipul^es pour toujours, tantdt pour un 
 temps d^termind. Dans le cas d'une lesion du 
 droit garanti, ne flit elle mime qu'imminente en- 
 core, le Garant, sur I'invitation qui doit lui en Itre 
 faite, est tenu de prater le secours promis, h. condition 
 '° Droit des Gens, L. II. § 228. " Droit des Gens, §§ 157-159. 
 
RIGHT OF TREATY. 433 
 
 cependant que le provoquant en garantie ait lui-m6me 
 ]e droit de se d^fendre, ou de se faire raison k soi- 
 in#me, et toujours sans porter prejudice aux droits 
 d'aucun tiers (salvo jure tertii). Le garant n'a ni 
 droit ni obligation de faire davantage que de prater 
 I'assistance promise." 
 
 An International Guaranty is thus strictly con- 
 cerned with International Bights, even where the 
 subject of the Guaranty may be a Rule of Succession, 
 as in the case of the Pragmatic Sanction of Charles 
 VI, or the undisturbed possession of Territory, as in 
 the case of the Germanic Confederation, equally as 
 when it is given by a third party to a Treaty of 
 Peace, such as the Guaranty of his Britannic Majesty 
 to the Treaty of Peace made at Utrecht in 171 5 
 between the Crowns of Spain and Portugal. For 
 instance, when Foreign Powers were invited to gua- 
 ranty the Pragmatic Sanction, it was not intended 
 that such Guaranty should affect the Political Inde- 
 pendence of the Austrian Crown, so as to limit in 
 any way its right to rescind or modify the Rule of 
 Succession ; but that the Guarantying Powers should 
 support the daughter of Charles VI against any 
 Foreign Power, which should attempt in its cha- 
 racter of a Foreign Power to disturb her in the 
 peaceable enjoyment of the Rights secured to her 
 by the Pragmatic Sanction. 
 
 No rule of International Law is more clear than 
 that a Convention of Guaranty nude and absolute 
 does not apply to the case of Political changes. If, 
 for instance, Denmark had guaranteed to the Princess 
 Anne of England the undisturbed possession of the 
 British throne upon the death of William III, contra 
 quoscunque, no casus foederis would have arisen, if 
 the Highlanders of Scotland had attempted to restore 
 
 PAEX I. F f 
 
434 EIGHT OF TREATY, 
 
 the Crown to the son of James II ; but if Louis XIV 
 or Philip V, as Foreign Powers, had sent an army 
 to cooperate with the insurgents in depriving the 
 Princess Anne of the Succession, there would have 
 been at once an undeniable Casus Foederis. Even 
 an expression so indefinite as contra quoscunque is 
 limited by the nature of the subject matter ; it may 
 apply to the slightest International interference, from 
 whatever quarter it may be threatened, but even a 
 Civil War will not extend its operation to Political 
 troubles. 
 
 Such an expression is found in the eleventh article 
 of the Treaty of Gottorp of 26th June, 1715, con- 
 cluded between the King of Great Britain, as Duke 
 of Brunswick-Luneburg (Elector of Hanover), and 
 King Frederick IV of Denmark, by which " his Royal 
 Majesty in Great Britain engages and obliges him- 
 self, for his heirs and successors, to maintain King 
 Frederic IV, his heirs and successors, in the occupa- 
 tion, enjoyment, and possession of the Ducal part of 
 the Duchy of Schleswig contra quoscunque in the most 
 effective manner, and to guaranty assistance ; and 
 to that end on every occasion, when need shall require 
 it and it shall be demanded of His Royal Majesty in 
 Great Britain on the part of the King of Denmark, 
 within six weeks a die requisitionis to furnish without 
 fail the assistance determined in the next preceding 
 article, and otherwise, according to the exigency of 
 circumstances, to assist with all his might and all his 
 power." 
 
 In consideration of this Guaranty Denmark gave 
 up to the Elector of Hanover the Duchies of Bremen 
 and Verden which she had conquered from Sweden 
 in 1712, and which Hanover has retained down to 
 the present day ; and Hanover on her part united her 
 
RIGHT OF TREATY. 435 
 
 forces witli those of Denmark, and thereby contributed 
 to brmg about the Treaty of Stockholm, of June 3, 
 T 720, and which Denmark would not consent to ratify, 
 until she had obtained the separate acts of Guaranty 
 on the part of the Kings of Great Britain and France 
 on the 26th July and 8 th August of the same 
 year ''^. 
 
 A Guaranty, being given in favour of one of the 
 Contracting Parties to a Territorial settlement, does 
 not authorise the Guarantying Power to interfere in 
 the enforcement of the settlement, unless his inter- 
 ference should be invoked. If the Contracting Par- 
 ties choose to vary the settlement, they have a right 
 to do so, and the Guarantying Power cannot oppose 
 it ; the obhgation upon the latter to support the 
 Party, who should complain of the infringement of 
 the settlement, does not carry with it a right to inter- 
 fere without invitation ; for the Guaranty was not 
 given for the advantage of the Guarantying Power, 
 otherwise it would have been a Principal in the 
 Contract. Vattel ''^ observes that it is of great im- 
 portance to keep in mind the distinction in this 
 respect between a Treaty of Guaranty and a Treaty 
 of AUiance, lest under colour of a Guaranty, a power- 
 ful Nation should claim to be arbiter of the affairs 
 of its neighbours, and pretend to give law to 
 them. 
 
 Sir Eobert PhilHmore *° seems to doubt the sound- 
 ness of the position, that a Convention of Guaranty 
 does not apply to Political changes, and lays stress 
 
 " Twiss on the Eelations of " Droit des Gens, L. II. c. 16. 
 tlie Duchies of Schleswig and § 286. 
 
 Holstein to the Crown of Den- *° Commentaries on Interna- 
 mark and the Germanic Con- tional Law, T. II. § 57. 
 federation, p. 124. 
 
 F f a 
 
436 EiaHT OF TREATY. 
 
 upon a passage in Vattel *^, in wtich that writer says, 
 "An Ally ought doubtless to be defended against 
 every invasion, against every foreign violence, and 
 even against his rebellious Subjects." It may how- 
 ever well happeii that Sovereign Princes are at liberty 
 to enter into Treaties of Alliance for mutual assistance 
 against their own Subjects, if they should revolt ; as, 
 for instance, the Sovereign Princes and Free Cities of 
 Germany as members of the late Germanic Confedera- 
 tion entered into a League ^^, under which they bound 
 themselves to intervene, if the Subjects of any Con- 
 federate State should revolt, and yet it might consist 
 with Eeason, that a Convention of nude and absolute 
 Guaranty, contra quoscunque, would not extend to 
 Political Troubles. Again, the second Treaty of 
 Barrier *^ (Jan. 30, 1713,) under which the Dutch 
 engaged themselves to give aid to Queen Anne and 
 her Successors to the British Crown, being Protest- 
 ants, according to the order of Succession as estab- 
 lished by the Parliament of England, against all such 
 States and Persons as should attempt by open war, 
 or by secret conspiracy, or by treason to set aside the 
 Succession so established, is relieved of aU ambiguity 
 by its very speciality ; for it is not a Treaty of nude* 
 and absolute Guaranty, contra quoscunque, but a 
 specific Treaty of Aid and Succour, (ipsi Eeginse 
 opitulaturos ad pugnandum pro jure Successionis 
 ad Coronam,) promised to the Queen herself, and 
 after her death to her lawful heirs, under circum- 
 stances specified either of Foreign war, or of Civil 
 tumult. 
 
 " Vattel, L. II. c. 12. § 197. " Schmauss, Corpus Jur. p. 
 
 *^ Final Act of the Germanic 1287. Sir Eobert Phillimore 
 
 Confederation. Art. XXV, and refers to this Treaty, which Lord 
 
 XXVI. Martens, N. E. V. p. Liverpool terms a Defensive 
 
 489. Alliance. 
 
EIGHT OF TREATY, 437 
 
 The Treaty concluded in London «* on May 7, 
 1832, between France, Great Britain and Eussia on 
 one part, and Bavaria on the other part, provides 
 that Greece, under the Sovereignty of Prince Otho, 
 and under the Guaranty of the three Courts, should 
 form a Monarchical and Independent State. It is 
 obvious, that such a Guaranty cannot be construed as 
 a Guaranty to King Otho against a Rebellion of his 
 Subjects, but only as a Guaranty of the Independence 
 of his Throne ; which is a matter strictly within the 
 province of an International Guaranty. 
 
 §250. Treaties of Neutrality are Treaties under Treaties of 
 which either the absolute Neutrality of a Nation is -"^^^^^^'y- 
 agreed upon, or particular acts of Neutrality on its 
 part are covenanted for. The Swiss Confederation 
 and the Kingdom of Belgium are States, of which 
 the absolute Neutrality is made a matter of Treaty- 
 stipulation between all the Great Powers of Europe. 
 Accordingly, no State is entitled to demand of either 
 of these States under the General Law of Nations, 
 that it should allow a free passage to its troops for 
 belligerent purposes through its Territory. In the 
 case of Nations which have agreed to observe par- 
 ticular acts of Neutrality, such obligations have refer- 
 ence for the most part to Eights under the General 
 Law of Nations, which a Neutral Power has an option 
 to enforce or not, as it shall think fit. Such, for 
 instance, were the provisions of the Treaty'^ of Amity, 
 Commerce, and Navigation, concluded between Great 
 Britain and the United States of America Nov. 19, 
 1 794, but not ratified by the latter Power until Oct. 
 28, 1 795. By the Twenty-fifth Article of this Treaty 
 it was provided, "that neither of the said Parties 
 
 *• Martens, N. Recueil, X. p. 550. 
 *^ Martens, Recueil, V. p. 68. 
 
438 RIGHT OP TREATY. 
 
 shall permit the ships or goods belonging to the 
 subjects or citizens of the other, to be taken within 
 cannon shot of the Coast, nor in any of the Bays, 
 Ports, or Rivers of their Territory by ships of war, or 
 others having commission from any Prince, Eepublic, 
 or State whatever. But in case it should so happen, 
 the Party, whose Territorial Bights shall thus have 
 been violated, shall use its utmost endeavours to 
 obtain from the offending Party, full and ample Satis- 
 faction for the vessel or vessels so taken, whether the 
 same be vessels of war, or merchant vessels." 
 
 There have been Treaties of Armed Neutrality 
 between Neutral States pending war between belli- 
 gerent Powers, the object of which has been to give 
 mutual aid to each other in maintaining the Eights 
 of Neutrals under the General Law of Nations. These 
 and other matters touching Neutrality are more fully 
 discussed in their appropriate place in a subsequent 
 volume, in connection with the Eights and Duties of 
 Nations in time of War. 
 Concinsion § 25 1. There are certain International Compacts or 
 fication'of Conventions which are distinguishable from Treaties 
 Treaties. (Fcedcra) properly so called ; being concluded not in 
 virtue of an express delegation of Full Powers from a 
 Nation to that purpose, but in virtue of an imphed 
 delegation of Full Powers, as incidental to an Official 
 Station. Thus the Commander of an army has an 
 implied delegation of Full Powers to suspend or limit 
 the operation of hostiHties by means of Truces for the 
 suspension of arms, of Cartels for the exchange of 
 prisoners, and of Capitulations for the surrender of 
 troops or fortresses. Conventions for such purposes 
 do not require any Eatification on the part of the 
 Supreme Power of the State. It is otherwise, how- 
 ever, with regard to a definitive Treaty of Peace. 
 
RIGHT OF TREATY. 439 
 
 A definitive Treaty of Peace, according to the usage 
 of Nations, requires Eatification, and althougli every 
 Treaty is operative from the date of its signature, 
 -unless it contains an express provision to the con- 
 trary, yet its operation is suspended until the exchange 
 of Ratifications shall have taken place, whereupon 
 the Treaty acquires validity from the date of its sig- 
 nature. There is, however, an exception to the rule 
 of a Treaty taking effect from the date of its signature 
 in regard to treaties stipulating for the Cession of 
 Territory. In the case of such Treaties they only 
 take full effect upon the actual Cession (traditio) of 
 the Territory itself Thus the National Character 
 of a Territory for commercial purposes continues un- 
 altered, notwithstanding it may have been ceded by 
 Treaty, as long as it continues in the actual posses- 
 sion of the State which has agreed to cede it^^. Upon 
 the actual change of the State of Possession, the 
 National Character of the inhabitants undergoes a 
 corresponding change. It may happen after a Treaty 
 has been signed by the Plenipotentiary of a Nation, 
 that grave circumstances occur, under which the 
 provisions of the Treaty may be likely to have a 
 prejudicial effect upon the interests of that Nation, 
 which were not known at the time of signature. 
 Under such circumstances the Sovereign Power of 
 a Nation is by Usage justified in declining to ratify 
 the Treaty. Thus the King of the Netherlands 
 refused in 1841 to ratify a Treaty for the incor- 
 poration of Luxembourg into the Customs' Union 
 of the Germanic States on the ground of the in- 
 jurious effects that it was likely to exercise upon 
 the commercial interests of his subjects, which had 
 been brought to his knowledge subsequently to the 
 ^' The Fama, 5 Eobinson, p. 106. 
 
440 RIGHT OF TREATY. 
 
 signature of the Treaty. So the King of the French 
 declined in 1841 to ratify the Quadruple Treaty for 
 the suppression of the Slave Trade on account of the 
 objections raised against it in the French Chambers. 
 So Great Britain declined in 1859 to ratify a Treaty 
 which her Minister Plenipotentiary had concluded 
 with Nicaragua, and Nicaragua in the same year 
 declined to ratify her Convention with Great Britain 
 for the settlement of the Grey Town and Mosquito 
 Question. If, however, there should be an express 
 provision that the preliminary engagements shall 
 take effect immediately without waiting for the ex- 
 change of Ratifications, such a Treaty will be an 
 exception to the rule. We have an instance of such 
 a Treaty in the Convention concluded at London*^ 
 (15 July, 1840) for the pacification of the Levant 
 between Great Britain, Austria, Prussia, and Russia, 
 on the one part, and the Ottoman Porte on the other, 
 to which there was annexed a Reserved Protocol of 
 the same date, providing that the preliminary mea- 
 sures, mentioned in the Second Article of the Con- 
 vention, should be put into execution immediately 
 (tout de suite) and without waiting for the exchange 
 of Ratifications. 
 Terminal $252. Treaties properly SO Called, the engagements 
 Renewal, of which imply a state of Amity between the Con- 
 tracting Parties, cease to operate if War supervenes, 
 unless there are express stipulations to the contrary. 
 It is usual on the signature of a Treaty of Peace for 
 Nations to renew expressly their previous Treaties, if 
 they intend that any of them should become once 
 more operative. Great Britain in practice admits of 
 no exception to the rule that all Treaties, as such, are 
 put an end to by a subsequent war between the Con- 
 ?' Martens, N. K. G6n. I. p. 156. 
 
BIGHT OF TREATY. 441 
 
 tracting Parties**. It was accordingly the practice of 
 the European Powers before the French Revolution 
 of 1 789, on the conclusion of every war, which super- 
 vened upon the Treaty of Utrecht, to renew and 
 confirm that Treaty, under which the distribution of 
 Territory amongst the principal European States had 
 been settled with the view of securing an European 
 Equilibrium. 
 
 In the Treaty of Paris (30 March, 1856) there 
 occurs a provision which is equivalent in its effect 
 to the renewal of previous Treaties, under which 
 it has been agreed that, until the Treaties or Con- 
 ventions which existed before the war between the 
 Belligerent Powers shall have been renewed or re- 
 placed by new arrangements, the commercial inter- 
 course between the subjects of the various Powers 
 shall be reciprocally maintained on the same footing 
 as before the war, and their subjects in all other 
 matters shall be respectively treated upon the foot- 
 ing of the most favoured Nation *^ In the Treaty 
 of Zurich, concluded between France, Austria, and 
 Sardinia^" (lo Nov. 1859), all the Treaties and Con- 
 ventions concluded between Austria and Sardinia, 
 which were in force before April i, 1859, are con- 
 firmed, so far as the Treaty itself does not derogate 
 from them, but the Two Powers undertake to submit 
 in the course of a year those Treaties and Conven- 
 tions to a General Revision, in order to introduce, 
 by common accord, the rdodifications which may be 
 thought conformable to the interests of both coun- 
 tries. There is, however, no corresponding provision 
 either in this Treaty, or in the separate Treaty of 
 
 88 Lord Bathurst's Letter of '^ Art. XXXI. Martens, N. K. 
 Oct. 30, 1815. Twiss' Oregon Gen. XV. p. 780. 
 Question, p. 188. " Ibid. XVL Part 11. p. 536. 
 
442 
 
 EIGHT or TBEATY. 
 
 Peace of the same date and place concluded between 
 France and Austria, whereby the Treaties and Con- 
 ventions between those Two Powers, if any such were 
 in force before April ist, 1859", are confirmed. 
 
 '^ Eecueil des Trait6s et Con- 
 ventions conclus par I'Autriche 
 avec les Puissances Etrangferes, 
 depuis 1763 jusqu'^ nos jours, 
 par Leopold Neumann, Leipzig, 
 1855-59. T^is collection of 
 Treaties contains special Treaties 
 
 of Commerce and Navigation, of 
 Extra-Tradition, and of Postal 
 Service, concluded between 
 Prance and Austria, determin- 
 able every Five Tears at the 
 pleasure of either Party. 
 
CHAPTEE XIV. 
 
 CAPITULATIONS OF THE OTTOMAN PORTE. 
 
 Early Phoenician and Greek Factories in Egypt — An Amalphitan 
 Factory at Alexandria in the ninth century — Pisan Capitulation of 
 1173 — Mahommedan Factory at Canton in the ninth century — 
 System of personal Laws throughout Europe — National Autonomy 
 allowed to the Mahommedans in Constantinople by the Emperors 
 of the East — Analogous privileges allowed by the Ottomans to the 
 Venetians in Constantinople in 1454 — National Autonomy secured 
 to the French by the Treaty of 1535, confirmed by Treaties of 
 1740 and 186 1 — Privileges assured to English subjects in the 
 Ottoman dominions in 1580, confirmed by Treaties of 1675 and 
 1861 — Similar privileges granted to the Dutch in 1612, confirmed 
 by Treaty of 1862 — Austrian Capitulations — Treaty of Passarowitz 
 of 1 718, confirmed to Austria-Hungary by Treaty of 22 May, 1862 
 — Prussian Capitulations of 1 7 6 1 , confirmed by Treaty of 2 o March, 
 1862 — Swedish Capitulations of 1737, confirmed by Treaty of 
 5 March, 1862 — Danish Capitulations of 1756, confirmed by 
 Treaties of 1841 and 1862 — Spanish Capitulations of 1782, con- 
 firmed by Treaty of 13 March, 1862 — Russian Capitulations of 1774 
 and of 1783, confirmed by Treaty of 3 February, 1862 — Capitula- 
 tions with the Kingdom of Italy of 1861 — Belgian Capitulations of 
 1838 and of 1840, confirmed by Treaty of 1861 — Portuguese Capi- 
 tulations of 1843, confirmed by Treaty of 1868 — Greek Capitulations 
 of 1855 — Capitulations with the United States of America of 1830, 
 confirmed by Treaty of 25 February, 1862 — Treaty with the Empire 
 of Brazil of 5 February, 1858 — Origin of the term Capitulations — 
 Covenant of Mahomet, the Messenger of God, with the Christians, 
 A.D. 625 — Capitulation of the Kaliph Omar, A.d. 636 — Treaty of 
 Paris of 1 856 — ^A special Platform of Conventional Law between 
 Christendom and Islam — Adherence of the Porte to the First 
 Protocol of the Conferences of London of 1871. 
 
 § 253. In the preceding Chapter on the Right of|^y^ 
 
 Phoenician 
 
 Treaty we have briefly touched upon a certain class and Greek 
 
 Factories in 
 
 of Treaties, that have been found to be highly con- Egypt, 
 
444 CAPITULATIONS OP THE OTTOMAN PORTE. 
 
 venient, if not "indispensable for the maintenance of 
 commercial intercourse between nations, whicb recog- 
 nise neither the ties of a common Religion nor the 
 sanctions of a common Law. Treaties of this charac- 
 ter are not of novel device, as their origin may be 
 traced back to a period, when race or nationality 
 rather than territory was the basis of a community of 
 law. An identity of religious worship seems to have 
 been in the earliest times a necessary condition of 
 international amity. The barbarian was outside the 
 pale of religion, but the stranger was entitled to hos- 
 pitality, if he worshipped the same gods. ^On the 
 other hand, the necessities of international commerce 
 gave rise by degrees to religious tolerance, under 
 which there grew up a certain international comity, 
 and merchants were permitted to establish factories 
 in foreign Countries without any intention of setthng 
 there permanently. Thus we find that the merchants 
 of Tyre, who were strangers to the religion of Egypt, 
 were nevertheless permitted in the twelfth century 
 before Christ to establish trading factories in three 
 different cities on the Tanitic branch of the Nile, 
 where they were allowed the privilege of living under 
 their own laws, and of worshipping according to their 
 own rehgious rites. Two centuries later we meet with 
 the legend of Iphigenia, according to which the 
 virgin daughter of Agamemnon, the leader of the 
 Greek host, was transported by the goddess Ar- 
 temis to the shores of the Black Sea, there to become 
 the priestess of a Greek temple, in which her coun- 
 trymen, whom commerce attracted to the Crimea, 
 might henceforth worship according to their own 
 religious rites. The Greeks from this time gradually 
 acquired the command of the corn trade of the Black 
 Sea, and recruited their mercantile fleets with the 
 
CAPITULATIONS OF THE OTTOMAN POETE. 445 
 
 best sailors of the Mgean. In alluding to these two 
 facts we are travelling beyond the limits of strictly 
 historical ground ; but the horizon becomes more 
 clear as it becomes more extensive, and we are 
 within the limits of authentic Greek history, when 
 Herodotus steps upon the scene, at which time the 
 Greeks were beginning to participate in the vast 
 trade with Egypt, which had from ancient time been 
 engrossed by the merchants of Tyre. The import- 
 ance of "the Phcenician factories in Egypt had begun 
 to decline after Pharaoh Necho lost his possessions in 
 Syria ; and his immediate successor, King Amasis, 
 found himself constrained to adopt a change in the 
 foreign policy of Egypt, and to 'seek in an alliance 
 with Greece a support against the encroachment 
 of the growing Persian Empire. It was with this 
 motive that he invited the merchants of HeUas to 
 establish a factory on the right bank of the Canopic 
 branch of the Nile, where they might live as a dis- 
 tinct community under their own laws and worship- 
 ping their own gods. The Greeks themselves gave 
 to this factory the name of Naucratis, and the re- 
 mains of the town which grew up around the factory, 
 may be traced in the present day in the village of 
 Destlk, on the right bank of what is now called the 
 Eosetta arm of the Eiver, where the stream is of 
 considerable width. 
 
 The Persians, under Cambyses, shortly after the 
 death of Amasis, became the masters of Egypt, and 
 the descendants of Amasis during two centuries 
 endeavouring in vain with the aid of Greek Aux- 
 iliaries to shake off the Persian yoke, against which 
 they attempted an unsuccessful revolt at the time 
 when Herodotus was travelling in Egypt. It is upon 
 his testimony that we may assume that the privi- 
 
446 CAPITULATIONS OF THE OTTOMAN POETE. 
 
 leged commerce of the Greeks at Naucratis was 
 maintained without any great diminutions during 
 that troubled period ; and it was not until the raison 
 d'etre of a Greek factory on the Canopic branch of 
 the Nile had ceased upon the conquest of Egypt 
 by Alexander the Great, and the founding of the 
 neighbouring City of Alexandria, that Naucratis dis- 
 appears from history, having been superseded by the 
 greater facilities for foreign trade which Alexandria 
 supplied. It had been already observed in the time 
 of Herodotus, that the vast deposits of the Nile were 
 carried eastward by the set of the current of the 
 Mediterranean Sea, and were gradually silting up 
 the mouths of the river; and it was doubtless a 
 knowledge of this circumstance that led Alexander 
 the Great to form his new seaport at the western 
 extremity of the Coast of the Delta. 
 AnAmai- ^ 254. Twclve ceuturies passed away after the 
 Faetoiyat death of Alexander the Great before an occasion 
 i^the nteth arosc in Egypt for the admission of foreign merchants 
 century. \^q ^hc privilege of a trading factory under magis- 
 trates of their own nationality. Many writers have 
 considered the Treaties which the Emperor Charle- 
 magne concluded with the Sultan Haroun al Eas- 
 chid in the ninth century, under which France 
 claims to exercise a guardianship over the Holy 
 Places in Jerusalem, to be the true starting-point 
 of the Jurisdiction exercised in the present day 
 by European Consuls in the Levant. This may be 
 a probable opinion as regards Syria and the- Holy 
 Land, but as regards Egypt the merchants of Amalphi 
 in Italy are with good reason reputed to have ob- 
 tained from the Caliphs of Egypt towards the end 
 of the ninth century the privilege of trading at 
 Alexandria under a Consul of their own nationality, 
 
CAPITULATIONS OF THE OTTOMAN POETB. 447 
 
 and to have been the first Christian merchants to 
 whom such a privilege was conceded. No copy how- 
 ever has been preserved of the text of such a privilege 
 in favour of the Amalphitans^ and the earHest text 
 known to exist of any so-called Capitulations is a 
 text of which the preservation is vouched by Gat- 
 teschi^, but it is not to be found in the body of 
 Ottoman International Law, published by Aristarchi 
 Bey in 1875. The text in question is that of a treaty Pisan 
 concluded in 11 73 between Saladin, Sultan of Egypt, iation"of' 
 and the Kepublic of Pisa before Saladin accom- "?3- 
 plished the conquest of the Latin Kingdom of Jeru- 
 salem. 
 
 There is no improbability in the tradition that the Mahom- 
 Amalphitans obtained the privilege of a factory at^^toryat 
 Alexandria in the latter part of the ninth century, ^^^J,™,^ 
 seeing that the Arab merchants of Egypt had them- century, 
 selves obtained in the earher part of that century the 
 privilege of a factory at Kanfou (Canton) within the 
 Chinese Empire, where they were permitted to live 
 under a Mahommedan Kadi, and to have their dis- 
 putes settled by him in accordance with Mahommedan 
 law. Of this fact we have a perfectly trustworthy 
 record in the narrative of a famous Arab historian, . 
 Ali Abou'l Hassan Mas'oudy, who died in Egypt 
 A.D. 956 ^ 
 
 * The State Eecords of Amalphi thren ultimately became the nu- 
 were destroyed by the Pisans when cleus of the Order of the Knights 
 they sacked Amalphi in r 137, but Hospitallers of Jerusalem, 
 there are private records of voy- ' Manuale di Diritto Pubblico 
 agesmadetoEgyptbyAmalphitan e Privato Ottomano, p. i. 
 citizens in the year 978, and the ' The MS. of this narrative 
 Amalphitans obtained through is preserved in the Bibliothfeque 
 the intercession of the Kaliphs of Nationals in Paris. It was trans- 
 Egypt the privilege of building lated into French by Eusebius 
 achurchin Jerusalem, A.D. 1020, Eenaudot in 17 18, and subae- 
 and a hospital, of which the bre- quently into English in 1735. 
 
448 CAPITULATIONS OP THE OTTOMAN PORTE. 
 
 System of ^ 255. MeanwHle the various races of Western 
 Law8°*^ Europe, after the breaking up of the Eoman Empire 
 Euro^J"""* °^ ^^® West, had come to live luider a system of per- 
 sonal laws. The change originated in Spain after the 
 conquest of that country by the Yisigoths in the fifth 
 century after Christ. It was followed in Italy, where, 
 to use the language of Cassiodorus, the famous Cala- 
 brian secretary of King Theodoric the Great, who 
 founded the Kingdom of the Ostrogoths in Italy 
 (453-466), the Roman was a judge for the Eoman 
 and the Goth for the Goth, and under a diversity 
 of judges justice was equally administered to all. 
 The mercantile communities were no exception to 
 this great revolution in the system of European Law, 
 and as the Roman Law fell into desuetude, local cus- 
 toms grew up in the chief commercial cities of Spain 
 and of Italy, which came to be regarded by the citizens 
 as of paramount obligation, so that the saying became 
 general " ubi consuetude loquitur, lex tacet." Hence 
 it became of the first importance, as their merchants 
 were required to observe the good custom of their 
 feUow-citizens, even when they were commorant in a 
 foreign country, that they should obtain the privilege 
 . of living, when abroad, under their own magistrates, 
 who could settle their disputes according to their own 
 good usages. We find accordingly that it was thought 
 to be no disparagement to the Sovereignty of the 
 Latin Kings of Jerusalem that they should allow in 
 the eleventh century to the Genoese in the first 
 instance, and then to the Venetians and the Pisans, 
 and subsequently to the Amalphitans, the privilege 
 of occupying a separate quarter in each of the chief 
 maritime cities of Syria, where they could carry on 
 their commerce under the exclusive jurisdiction of 
 their own magistrates. The institution, however, of 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 449 
 
 the trading factory was not confined to the ports 
 of the Mediterranean. It had become general on 
 the part of the maritime communities of the North 
 Sea and of the Baltic, and it was for the use of their 
 factories in foreign countries that the great mer- 
 cantile cities of Northern Europe drew up the 
 various Codes of Mercantile and Maritime Law, of 
 which the texts have been edited with great care 
 and judgment by M. Pardessus in his valuable " Col- 
 lection de Lois Maritimes ant^rieures au dixhuitifeme 
 Si^cle." Amongst the most remarkable of these 
 factories was the factory established by the mer- 
 chants of Wisby at Nowogorod, in Eussia, in the 
 twelfth century, where they were allowed to live 
 under their own laws, administered by their own 
 magistrates ; and that this was looked upon as a 
 normal condition of international commerce in those 
 days may be inferred from the fact, that in the Latin 
 text of the privilege granted by the Duke of Nowo- 
 gorod in the thirteenth century to the merchants 
 of Wisby it was stipulated that the merchants of 
 Nowogorod should enjoy the same liberties and 
 rights whenever they came into Gothland *. 
 
 Returning to the shores of the Mediterranean, National 
 where, notwithstanding the mutual hatred which the ^o™^^ 
 Crusades had engendered between the Christian and the theMahom- 
 Moslem, the Saracenic conquerors of Asia had granted constanti- 
 to the merchants of the Italian Eepublics the privi- "he Empe- 
 lege of living in communities apart from the natives ™™ of the 
 of the country, we find that the Christians recipro- 
 cated this privilege in favour of the Mahommedans, 
 and that for sixty years before Constantinople passed 
 
 * Easdem libertates et jura dantur favorabiliter et benignfe. 
 Nogardiensibus cum in Gothlan- Dreyer. De inhumano jure naur 
 diam venerint in omnibus impen- fragii, p. 172. 
 
 PART I. G a- 
 
450 CAPITULATIONS OF THE OTTOMAN PORTE. 
 
 under the dominion of the Ottomans, a Mahommedan 
 Community was allowed to reside there under a 
 Kadi, who administered justice to them according to 
 Mahommedan law, and they were further permitted 
 to build a Mosque and j;o worship therein according 
 to their own religious rites. 
 Analogous It need not therefore excite any surprise that, in 
 ^kwed by. the very next year after the Sultan Mahomet II had 
 man?to°the established the supremacy of the Crescent over the 
 Venetians Cross in the aucieut capital of the Christian Empire 
 tinopie in of the East, he should have granted to the merchants, 
 ''*^'*' both of Genoa and of Venice, the same privileges of 
 national autonomy which they had enjoyed under 
 the Christian Emperors. The Genoese, for instance, 
 had previously obtained from the Greek Emperors as 
 far back as a.d, 1204 the privilege of exclusively 
 occupying, under their own magistrates, a suburb of 
 Constantinople, from which, as a basis of commercial 
 operations, they had pushed forward their factories 
 along the southern shore of the Black Sea, whilst 
 the Venetians had obtained as far back as a.d. 1060 
 the privilege of sending magistrates of their own 
 nationality to Constantinople to administer justice to 
 their countrymen both in civil and criminal mattersi. 
 Further, a golden diploma (btdla aurea) of the Em- 
 peror Alexis III, of the date of a.d. i 199, which has 
 been published by Marin ^, had extended to the Vene- 
 tians the further privilege, that their judges should 
 decide all disputes between citizens of Venice and 
 subjects of the Greek Empire, This enlarged privi- 
 lege appears to have been enjoyed by the Venetian 
 merchants in the ports of Syria from a still earlier 
 
 * Storia civile e politica del 188. Miltitz, Manuel des Consuls, 
 Coramercio de' Veneziani, iii. p. Tom. I. Appendice No. 4. 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 451 
 
 period, as may be inferred from a treaty of a.d. ii i 7, 
 cited by Foscarini ^. 
 
 Such tben having been the general practice in 
 the Levant, before Constantinople passed under the 
 dominion of the Moslem, it would seem to have been a 
 matter of course that the Christian States of Western 
 Europe, which were anxious to secure to their mer- 
 chants the continuance of a trade which had hitherto 
 been extremely lucrative, should have sought at the 
 hands of the Ottoman Sultans the renewal of the 
 national autonomy heretofore conceded to them by 
 the Christian Emperors. We find, accordingly, that 
 the Sultan Mahomet II, at the request of the 
 Genoese, renewed to them before the conclusion of 
 the year a.d. 1453 the privileges heretofore enjoyed 
 by their merchants, and in the next following year, 
 A.D. 1454, renewed to the Venetian merchants in 
 like manner their privileges. The text of the 
 Genoese privileges, which are said by Sauli '' to have 
 been granted under the form of a Firman, or, in other 
 words, of an ordinance under the tougra or mono- 
 gram of the Sultan, has not come down to our time, 
 but the text of the Venetian privileges has been 
 preserved, and it has been usual to describe these 
 privileges, which are in the fornl of treaty-engage- 
 ments, by the title of " Capitulations." Whether 
 this title means anything more than "Articles," 
 seeing that the text is divided into "Articles," or 
 " Capita," or whether the word " Capitulations " was 
 the Frank translation of the Arabic term " Soulhh," 
 which means " a truce," will be discussed hereafter, 
 but it cannot well be disputed, that the document 
 
 ° Pardessus, Lois Maritimes, novesi in Galata, Tom. II. 1, 3. 
 Tom. V. p. 3. p. 127. 
 
 ' Sauli, Delia Colonia tlei Ge- 
 
 Gg3 
 
452 CAPITULATIONS OF THE OTTOMAN PORTE, 
 
 which contains the Venetian privileges of 1454 is in 
 the nature of a bilateral contract, to which the Sultan 
 Mahmoud Bey and the Seigneurie Ducale de Yenise 
 were the signatory parties. 
 
 There is no mention of a Consul by name in the 
 Venetian Capitulations of 1454, the clause as to the 
 national autonomy of the Venetian Merchants being 
 of this tenor: Art. 16, "Que la mime Seigneurie 
 ptit h, son gr^ envoyer h Constantinople un Bailli 
 avec .sa Suite, suivant I'usage, lequel ait la liberty 
 de r6gir en civil, et de gouverner, et administrer la 
 justice entre ses Venitiens de toute condition; le 
 Sultan s'engageant de faire en sorte que le Pacha 
 ou Seraskier de la Eoum61ie accorde toute faveur 
 au dit bailli chaque fois qu'il en sera requis pour 
 faire son office*." An important recital in this 
 Article deserves notice from an international point 
 of view, namely, that the privilege accorded to the 
 Venetians of a national autonomy is recognised to 
 be according to usage (selon usage). Although, how- 
 ever, there is no mention of a Consul by name in 
 this Treaty, there is no doubt that Venetian Mer- 
 chants enjoyed in the same century in the provincial 
 parts of the Ottoman Empire the privilege of living 
 under the jurisdiction of a Consul of their own 
 nationality, inasmuch as in the Capitulations between 
 the Eepublic of Florence and Kait Bey, the last of 
 the independent Mameluke Sultans of Egypt in 1488, 
 there is an article securing to the Florentine Consuls 
 the same privileges and prerogatives as were then 
 enjoyed by the Venetian Consuls, as well in respect 
 of honour as of jurisdiction^ (Article XII). 
 
 _ « Gatteschi, Manuale di Di- ^ Les Capitulations et la 
 
 ritto Ottomano, p. 16; also Ari- E^forme Judiciaire, par J. C. 
 
 starchi Bey, Droit International Aristide Gavillot. Paris, 1875, 
 
 Ottoman, Tom. IV. p. 237. p. 21. 
 
CAPITULATIONS OF THE OTTOMAN POETE. 453 
 
 § 256. The independence of the Mameluke Sultans National 
 of Egypt ceased in 151 7, upon the death of the a^sS"^ 
 Sultan el-Ghiiri on the battle-field of Dabik, fighting ^^^^^ty 
 against the army of the Osman Sultan, Selim I. the Treaty 
 Shortly afterwards Cairo was taken by storm, and 
 Sultan Selim compelled Mutawakkil, the last scion 
 of the family of the Abasside Kaliphs, to convey to 
 him his nominal supremacy, and thereby his title to 
 the office of Kaliph, the spiritual and temporal chief 
 of Islam. Henceforth the Sultans of Constantinople 
 have been supreme in the Levant, and France, in 
 entering into an alliance with the Porte, thought 
 it well to secure for herself, by treaty, a confirmation 
 of the ancient privileges heretofore enjoyed by the 
 Venetians, and to include under her protection 
 the subjects of aU the Christian Princes of Europe, 
 with the exception of those of the Emperor Charles V. 
 The document under which the French protection 
 was recognised by the Porte, is in the form of a 
 treaty, concluded a.d. 1535, between King Francis I 
 of France. and the Sultan Suleiman II, under the 
 third Article of which it was provided, that " Toutes 
 fois que le Eoi mandera h, Constantinople ou a 
 Pera ou aux autres lieux de cet Empire un Baile, 
 comme de present il tient \m Consul k Alexandrie, 
 que les dits Baile et Consul soient accept^s et en- 
 tretenus en autoritg convenante, de manifere que 
 chacun d'eux en son lieu et selon leur foi et loi, 
 sans qu'aucun Juge, Kadi, Soubachi ou autre en 
 emp^che, doive et puisse ouir, juger et terminer, tant 
 au civil qu'au criminel, toutes les causes, les proces 
 ou difi'^rends, qui naitront entre marchands et au- 
 tres sujets du Eoi." By a further article of this 
 Treaty, power was reserved to his Holiness the 
 Pope, to the King of England the brother and ally 
 
454 CAPITULATIONS OP THE OTTOMAN POETE, 
 
 of the King of France, and to the King of Scotland, 
 to accede to the Treaty, if they thought fit, within 
 eight months. The Turkish original of this Treaty 
 is lost, as well as several original Letters-patent or 
 Capitulations between the Porte and France; but 
 a French and Italian text of this Treaty are pre- 
 served in the Archives of the French Department 
 of Foreign Affairs, from which we have cited the 
 Third Article as above". There seems, however, to 
 have been another version of this Treaty, the Turkish 
 text of which was known to Mouradjea d'Ohsson^i, 
 and which contains certain stipulations not found 
 in the French text, the fourth of which is of this 
 tenor : " Que les autres Nations Europ^ennes, comme 
 les Anglais, les Catalans, les Eagusais, les Siciliens, 
 les G^aois, les Portugais, &c., dont les Gouverne- 
 ments n'^taient pas lies avec la Porte par des traites 
 d'amitie, pourraient naviguer sous le paviUon fran§ais 
 dans toutes les mers et trafiquer sous la protection 
 de la France dans tous les pays de la domination 
 Ottomane;" and the fifth article purports to be as 
 follows : " Que les Fran9ais jouiraient du libre exer- 
 cice de leur culte, et qu'ils feraient garder les Saints 
 Lieux de la Palestine par des religieux Catholiques." * 
 Both these Articles deserve attention, as they throw 
 light on the position maintained by France at the 
 present time with regard to the Protectorate as- 
 serted by her over the Holy Places in Jerusalem, 
 as well as over vessels sailing under what is called 
 
 '» The French and Italian de Testa in his Eecueil des 
 
 texts,_ as preserved in the French Traites de la Porte Ottomane, 
 
 Archives, are set out by Char- T. I. p. 15. 
 riere in his Negotiations de la " Tableau G^n^ral de I'Em- 
 
 France avec le Levant, Paris pire Ottoman par Mouradjea 
 
 1848, Tom. I. p. 293, and the d'Ohsson. Paris, 1 791. Tom.VII. 
 
 French text is given by Baron p. 470. 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 455 
 
 the Flag of Jerusalem, otherwise the Flag of the 
 Latin Convents in Jerusalem. It would be idle to 
 speculate in the present day as to what is the true 
 explanation of the difference between the version 
 which Mouradjea d'Ohsson had before him, and the 
 version of the Treaty of 1535 of which a copy is 
 preserved in the French Archives. The Treaty of 
 1 535' according to the rule of Ottoman law, expired 
 on the death of Suleiman II, and the historian of 
 the Ottoman Empire, Baron von Hammer, enume- 
 rates not less than eleven renewals of the Treaty 
 of 1 5 35 J which preceded the Treaty of 1740, which 
 latter Treaty continues to be operative in the present 
 day^*; and each renewal gave occasion for the in- 
 sertion of fresh Articles. It is a permissible con- 
 jecture that the Articles which Mouradjea d'Ohsson 
 enumerates were new articles, possibly added on the 
 renewal of the Treaty of 1535 at the accession of 
 the Sultan Selim II in the year 1566, at which 
 time England had not as yet obtained any special 
 privileges for her own subjects. It is hardly per- 
 missible to suggest that there was a discrepancy 
 between the Turkish text and the Italian text of 
 the Treaty of 1535, the Italian on such a suppo- 
 sition having been the original draft, of which the 
 Turkish purported to be a correct translation, both 
 having been signed, the Turkish text by the Eeis 
 EfFendi, and the Italian text by Jean le Fordt, the 
 French Envoy, inasmuch as the Diplomatic language 
 of the Levant was at that time Italian. Such a dis- 
 crepancy, however, may have been a fact, inasmuch 
 as a conflict of versions between the Turkish text 
 
 " These Capitulations were Emperor Napoleon I, and the 
 confirmed in 1802 by Article 2 Sultan Selim III, and still more 
 of a Treaty of Peace between the recently in 1838 and in 1861. 
 
456 CAPITULATIONS OF THE OTTOMAN POBTE. 
 
 and the American text of a Treaty has been brought 
 to light, in the case of a Treaty concluded at Con- 
 stantinople so recently as on May 7, 1830, between 
 the Porte and the United States of America. No 
 question arose upon this Treaty before 1868, when 
 the Turkish Authorities claimed criminal jurisdiction 
 over two American citizens in Syria for an alleged 
 offence against the Ottoman Government. The 
 American Minister, Mr. E. Jay Morris, resisted this 
 claim, and cited the Fourth Article of the American 
 text of the Treaty of 1830, which provided that 
 " even when American citizens may have committed 
 an offence they shall not be arrested and put into 
 prison by the local authorities ; but they shall be 
 tried by their Minister or Consul, and punished ac- 
 cording to their offence." The Ottoman Minister, 
 however, of Foreign Affairs replied, that the American 
 version of the Treaty was incorrect, and that the 
 words, on which the Envoy of the United States 
 relied, were not to be found in the Turkish text ; 
 and such proved on a careful examination to be the 
 fact. The United States Grovernment ultimately 
 agreed to abide by the Turkish version of the 
 Treaty 1^. Unfortunately there is no Turkish version 
 of the Treaty of 1535, so that the alleged discrepancy 
 between the two versions of it must continue to be, 
 as heretofore, a diplomatic perplexity. A fact, which 
 gives some support to the authenticity of the Articles 
 cited by Mouradjea d'Ohsson, may deserve notice, 
 namely, that the privilege of sailing under the pro- 
 tection of the French flag and of trading under the 
 protection of the French Consul, was enjoyed by. 
 
 ^ Treaties and Conventions Revised edition, Washington Go- 
 between the U.S. of America and vernment Printing OfiBce, 1873, 
 other Powers since July 4, 1776, pp. 1060-1069. 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 457 
 
 the mercliants of England in accordance with his 
 version of the Articles of 1535, until Queen Elizabeth 
 obtained for her subjects identical privileges with 
 those enjoyed by French subjects. 
 
 J 257. The earliest Capitulations between England Privileges 
 and the Ottoman Porte date as far back as the month English 
 of June, 1580. They are printed in Hakluyt's col- J^^J^"(.^„i" 
 lection of the principal navigations and voyages of ^^i^i?™- 
 
 J. 1 o »/ o niona in 
 
 the English Nation, London, 1598, vol. xi, p. 141. 1580. 
 It appears from other diplomatic documents of the 
 same period, which have also been printed by Hak- 
 luyt, that in the month of March, 1579, Queen 
 Elizabeth of England obtained from the Sultan 
 Murad III, Imperial Letters, granting to certain of 
 her subjects the same privileges of trading freely 
 in the Ottoman Empire as were enjoyed by the 
 French, the Poles,- the Venetians, and the subjects 
 of the Emperor of Germany. Further, in the same 
 Imperial Letters, the Sultan requested, that the like 
 liberties should be granted to his subjects and mer- 
 chants to come to the Queen's dominions. Queen 
 Elizabeth answered the Sultan's Letters in Latin, 
 and sent his reply on Oct. 25, 1579 from Greenwich, 
 by William Harebone, subsequently accredited to the 
 Porte as her Ambassador. By these Letters the 
 Queen granted to the Sultan's subjects as ample 
 and as large liberties as had been granted to them 
 by the King of the Komans, of France, of Poland, 
 and the Commonwealth of Venice. Thereupon the 
 Sultan accorded a Grant of Privileges in the month 
 of June, 1580^*, to all the subjects of Her Majesty, 
 of which the Latin text is still extant, containing 
 thirty-two Conditions or Articles, which, although 
 
 " In accordance with this incorporated by_ Charter of 
 Grant the Turkey Company was Q'^^^'^ Elizabeth in 1581. 
 
458 CA.PITULATIONS OP THE OTTOMAN POETE. 
 
 they have not been printed in the copy published 
 by the Levant Company in 1820, are entitled to be 
 regarded as the earliest English Capitulations. More 
 extensive privileges were subsequently granted to 
 the English merchants, by successive Sultans in the 
 reigns of King James I and of King Charles I. The 
 Capitulations, however, which are operative in the 
 present day with some modifications, and which in 
 that respect correspond with the French Capitulations 
 of 1 740, were accorded by the Sultan Mehemed IV 
 to King Charles II of England in 1675; and it is 
 recited in the preamble of these Capitulations, that 
 the previous Capitulations had been granted to the 
 Queen of the above-mentioned kingdom and to the 
 Kings aforesaid through friendship. Unlike the 
 Treaty of 1535 with France, which was in reality 
 a Treaty of Alliance between France and the Porte, 
 the English Capitulations are drawn up in the form 
 of a Grant of Privileges, confirmatory of previous 
 stipulations ; and amongst these Privileges was that 
 of the English Ambassadors being allowed, at their 
 pleasure, to establish Consuls in the ports of Aleppo, 
 Alexandria, Tripoli of Barbary, Tunis, TripoH of 
 Syria, Scio, Smyrna, and Egypt, who should decide 
 all disputes amongst the English themselves. There 
 was further a most favoured-nation article, in which 
 it was recited that aU the Capitulations, Privileges, 
 and Articles, granted to the French, Venetian, and 
 other Princes, who are in amity with the Sublime 
 Porte, are in like manner through favour granted to the 
 English. These Capitulations were confirmed in 1 809 
 and in 1838, and again with modifications in 1861 ". 
 
 " The Capitulations of 1675 with certain modifications, have 
 with the subsequent treaties of been published in a separate form 
 Commerce confirmatory of them, by Sir E. Hertslet, C.B., the, Ar- 
 
CAPITULATIONS OF THE OTTOMAN POETE. 459 
 
 f.258. The Netherlands or Low Countries were PrfvUeges 
 the next European State that obtained Capitulations the^Dutch 
 from the Ottoman Porte. The Dutch had been''='^^"- 
 content to trade under the French flag and under 
 the protection of French Consuls, until they obtained, 
 in 161 2 ^«, from the Sultan Ahmed I, Capitulations 
 securing to them equal rights with England and 
 France in respect of their citizens being allowed to 
 trade under their own flag, and to reside in the 
 Ottoman Empire, under the protection of their own 
 Consuls. These Capitulations were confirmed by 
 subsequent Sultans, and were enlarged in 1680 by 
 Sultan Mohammed IV. They contain one or two 
 articles which stipulate for reciprocity, but there does 
 not appear to have been any exchange of Eatifica- 
 tions in 1680 between the Porte and the United 
 Provinces. They have however been recognised and Treaties of 
 confirmed in recent times by a Treaty of Commerce Ise?.*" 
 and Navigation of Feb. 25, 1862". 
 
 fi 2';q. Austria, as the heir to the Treaty-Rights Austrian 
 
 , „, ,. . \ , . , -n ■ !> r^ Capitula- 
 
 and Obligations 01 the ancient Empire 01 (jermany, tions of 
 may be considered to have succeeded to the privileges '^^*' 
 which had been granted to the subjects of that 
 Empire, prior to 1580, and which are mentioned 
 in the recitals of the English Capitulations of that 
 year. It is usual, however, to date the earliest 
 Austrian Capitulations from a.d. 16 15, when certain 
 Privileges of Commerce were granted to the subjects 
 of the Emperor. These privileges were more formally 
 confirmed by a Treaty of Commerce concluded at 
 Passarowitz", between the Emperor and the Porte 
 
 chivist of the Foreign Office, in " British and Foreign State 
 
 his Treaties and TariiTs of Trade Papers, vol. 52> P- V39- 
 
 with Turkey, 1875. " Schmauss, Tom. II. p. 1716. 
 
 " Schmauss, Corp. Jur. Gent. Dumont, Trait6s, Tom. VIII. pt. 
 
 Aoademicum, Tom. 11. p. 2266. i. p. 528. 
 
460 CAPITULATIONS OF THE OTTOMAN PORTE. 
 
 on July 27, 1 718. It is this Treaty, confirmed by 
 subsequent treaties during the eighteenth century, 
 which is regarded as containing the Capitulations 
 which govern the political and commercial relations 
 between the Porte and the Austro-Hungarian Empire 
 of the present day, and they have been confirmed by a 
 Treaty of Commerce and Navigation of May 22, 1862. 
 Prussian ^ 260. Prussia may next be mentioned as having, 
 tionsof*' in the reign of Frederick the Great, concluded a 
 '^^'" Treaty of Commerce and friendship with the Sultan 
 Mustapha on March 22, 1761, which is drawn up in 
 Turkish and Italian. This Treaty contains what may 
 be called the Prussian Capitulations, which were con- 
 firmed by a Treaty of Friendship, Commerce, and 
 Navigation, between the Porte and Prussia on March 
 20, 1862 (Br. and For. State Papers, LII. p. 733). 
 The German Empire has adopted these Capitulations 
 as well as the Capitulations of the Hanse Towns of 
 May 28, 1839, which were confirmed by a Treaty be- 
 tween the Hanse Towns and the Porte on Sept. 27, 
 1862 (Br. and For. State Papers, LII. p. 748). 
 Swedish § 26 1. The Swcdish Capitulations may be said to 
 tiona'^f" ^^^^ fr<5i^ January lo, 1737, when Articles of Friend- 
 1737- ship in Turkish and Latin were drawn up between • 
 King Frederick I of Sweden and Sultan Mahmoud I. 
 They have been confirmed by a Treaty of Commerce 
 and Navigation of March 5, 1862. 
 Danish The Danish Capitulations were granted by the Sul- 
 
 tioufof" *3,n Othman III on Oct. 14, 1 756. They are drawn up 
 1756. in Arabic and Latin, and place Danish subjects on the 
 same footing of privilege as the subjects of the other 
 Treaty-Powers of Christendom. They have been con- 
 firmed by a Treaty of Commerce of March. 13, 1862. 
 Spanish The Spanish Capitulations are of still more recent 
 
 tiXof*" date, and are contained in a Treaty of Peace and. 
 
 1782 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 461 
 
 Commerce concluded on Sept. 14, 1782, between 
 King Charles III of Spain and the Sultan Abdul 
 Hamid I. They have been confirmed by a Treaty 
 of Commerce and Navigation concluded on March 1 3, 
 1862. 
 
 The Capitulations between Eussia and the Porte Russian 
 date from a Treaty of Commerce concluded at Con- tions of " 
 stantinople on June 10, 1783, between the Empress '''*3- 
 Catherine II of Eussia and the Sultan Abdul Hamid 
 I, although by the Convention of Ainali Kavac of 
 March 10, 1779, explanatory of the previous Treaty 
 of Kutchuk-Kainardji of July 21, 1774, commercial 
 relations between the two Nationalities had been 
 established as nearly as could be upon the basis of 
 the Capitulations accorded to the French and to the 
 English. The provisions of the Treaty of 1783 have 
 been confirmed with certain modifications by a Treaty 
 of Commerce and Navigation concluded on Jan. 22, 
 1862. 
 
 The kingdom of Italy has succeeded to the various Italian 
 privileges enumerated in the Capitulations granted tioM^of*" 
 by the Porte to the Venetians in 1454 and in 1.718, '74o- 
 and to the subjects of the Two Sicilies in' 1740, subject 
 to such modifications as have been made in them by 
 the Treaty of Commerce and Navigation concluded 
 between the kingdom of Italy and the Porte on 
 July 10, 1 861. Under the first article of the latter 
 Treaty it is provided as follows : " AU the Treaties, 
 privileges, and immunities which have been conferred 
 on Italian subjects and. vessels by the capitulations 
 and antecedent Treaties stipulated between Turkey 
 and the States, which actually form the kingdom of 
 Italy, are confirmed, with the exception of the clauses 
 of the said Treaties and the said Capitulations, which 
 the present Treaty is intended to modify." In virtue 
 
462 CAPITULATIONS OP THE OTTOMAN POBTE. 
 
 of this provision the kingdom of Italy succeeds to the 
 
 benefits of the Treaty concluded between the Porte 
 
 and the Eepubhc of Genoa ini 665, and of the Treaties 
 
 concluded between Tuscany and the Porte on May 25, 
 
 1747, and on February 12, 1833, and to the benefits 
 
 of the Treaties between Sardinia and the Porte of 
 
 Oct, 25, 1823, and of Sept. 2, 1839 ^^ 
 
 Belgian The Belgian Capitulations are contained in a Treaty 
 
 tJons of*" between King Leopold I and the Sultan Mahmoud II, 
 
 1838. signed at Balta Liman on August 3, 1838, and in a 
 
 further Treaty also signed at Balta Liman on April 30, 
 
 Portuguese 1840. The Portuguese Capitulations are contained 
 
 tionf "^" ^^ ^ Treaty of Friendship, Commerce, and Navigation 
 
 concluded in London on March 20, 1843, and in a 
 
 further Treaty concluded in Paris on Feb. 23, 1868. 
 
 Greek Ca- The Greek Capitulations are contained in a Treaty of 
 
 pi u a ions. QQjjijjjgj.gg ^j^^ Navigation signed at Kanlidja on 
 
 May 27, 1855. 
 
 § 262. In enumerating the various Treaties above 
 mentioned I have used the term " Capitulation" in a 
 general sense, as descriptive of the entire group of 
 Treaties between the Porte and the Christian States 
 of Europe, vmder which the privilege of national 
 autonomy is assured to the subjects of the Christian 
 States, whilst resident within the Ottoman Dominions. 
 The term " Capitulation," however, is sometimes used 
 in a narrower sense, and in such sense is technically 
 applied to the privileges accorded either by Treaty or 
 by Grant to the subjects of France, and of England, 
 and of the United Provinces in the sixteenth and 
 seventeenth centuries. Inasmuch, however, as those 
 privileges have been confirmed by more recent Treaties, 
 
 " Aristarchi Bey quotes the De Cussy, Eecueil de Traitfe, 
 text of the Tuscan and Sardi- III, IV, and V. * 
 
 nian Treaties from Martens and 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 463 
 
 and the subjects of other Christian States of Europe 
 are allowed to participate in those privileges in pur- 
 suance of the most favoured nation treatment having 
 been assured to them by separate Conventions with 
 the Porte, it seems reasonable to extend the use of 
 the term " Capitulations" to the entire series of such 
 Treaties, and on the same grounds it is permissibfe to 
 include under the term " Capitulations" the Treaties 
 in pari materia, which have been concluded between- 
 the Porte and the Principal Christian States of the 
 New World. Amongst these may be mentioned the 
 Articles of a Treaty concluded between the Porte and 
 the United States of America on May y, 1 830, to which United 
 allusion has been already made, and a subsequent America. 
 Treaty concluded on February 25, 1862, between the Emperor of 
 same Powers,' and as regards the Southern Continent 
 of America a Treaty concluded on February 5, 1858, 
 between the Porte and the Empire of Brazil, 
 
 I have already touched upon the meaning of the 
 term "Capitulation." It is probably of Italian parent- 
 age, seeing that the Italian word " Capitulazdoni" 
 signifies Covenants or Agreements, and Italian was 
 the language of Diplomacy in the Levant at the time 
 when the Saracen and the Christian first held out to 
 each other the olive branch of peace. But it may be 
 doubted whether the term " Capitulations" came into origin of 
 use before the Treaty of 1535 between France andcapitX 
 the Porte. Of its use shortly after the conclusion of *'°"^- 
 that Treaty we have evidence in a despatch from 
 Antoine Ean9on, the French Ambassador to the Sultan 
 Sulieman I, addressed to the Constable of France on 
 Sept. 20, 1539, where he speaks of having in his 
 possession "le double des articles et capitulations 
 qu'autrefois, du vivant d' Ibrahim Pacha, le feu De la 
 Forest avait fait et propos^." On the other hand, 
 
464 CAPITULATIONS OJF THE OTTOMAN PORTE. 
 
 in the earliest grant of privileges ^^ accorded by the 
 Sultan Murad III to the subjects of Queen Elizabeth 
 of England the twenty-two articles, in which those 
 privileges are recited, are termed " Conditions," which 
 Covenant is the identical phrase made use of in the covenant ^^ 
 hornet, the accordcd by Mahomet, the Messenger of God, to the 
 ^Go4a!d. Christians generally in the fourth year of the Hegira 
 625- (A.D. 625), in which he enjoins his disciples to pay 
 
 respect to the Judges of the Christians. It may be 
 admitted that the authenticity of the Arabic text of 
 this early privilege which is reported to have been 
 found in the Monastery of Mount Carmel, near the 
 Lebanon, has been impeached. Nevertheless, the docu- 
 ment is of high antiquity, and the phrase " condii;ions" 
 is in perfect harmony with the Scheme of the Koran, 
 under which all mankiud outside the Souse of Islam 
 (Daru-1-Islam) are dwellers in the House of War 
 (Daru-1-Harb), with whom a state of war (Djihad) 
 is of perpetual obligation, except where it has been 
 suspended by a guaranty (Aman) or by a treaty. We 
 Capitular find accordingly that in the next most ancient docu- 
 Kaiiph ment, which the Greek monks of the Holy Land have 
 2^^'^'^' preserved as the title-deed of their privileges, and 
 which is commonly described as the Capitulation of ^ 
 the Kaliph Omar ^^, the text of the document describes 
 it as a pact or convention given to the patriarch 
 
 '" Hakluyt.The Principal Navi- ^^ A copy of the original text 
 
 gations, &c. London, 1598, vol. of this document is contained in 
 
 ii. p. 13'?. a MS. in the Bibliothfeque Na- 
 
 '^^ An English translation of tionale in Paris, entitled " His- 
 
 this document was published by toire de Jerusalem et d'H^bron," 
 
 Sir Paul Eycaut in his work " On fonds de St. Germain-des-Prfes, 
 
 the present State of the Otto- No. 100. A French translation 
 
 man Empire," London, 1688. A of it has been published by Ubi- 
 
 French text of it will be found in cini, Lettres sur la Turquie. 2™e 
 
 A. deMiltitz's Manuel des Consuls, Partie. Las Raias. Pifeces Justi- 
 
 Tom. L App.No. i. Berlin, 1837. ficatives, I. 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 465 
 
 Sophronius (otherwise Zephyrinus) on the Mount of 
 Olives, Here again the authenticity of the document 
 has been impugned, but its antiquity is indisputable, 
 and it is reasonable to suppose that, if both the so- 
 called Testament of the Prophet Mahomet (a, d. 625), 
 and the so-called Capitulations of the Kaliph Omar 
 (a.d. 636) are not authentic, the monks, who devised 
 them, took care to use language in their recitals, which 
 would not startle their contemporaries by its being at 
 variance with Mahommedan Law, and consequently 
 inadmissible in Mahommedan Courts. The result 
 would seem to be, that it was not essential that the 
 privileges, accorded to the Unbelievers who had sacred 
 books (Kitabi), as distinguished from those who were 
 mere idolaters (Medjous), should be in the form of an 
 Unilateral Grant in the name of the Kaliph, but might 
 be the subject of a treaty or bilateral compact, and 
 the term Capitulations, if originally apphed to the 
 articles of a Treaty, came by degrees into use as de- 
 scriptive of the conditions of a Grant equally as of 
 a Treaty, where under those conditions the Unbeliever 
 was admitted to the benefit of a truce, or a suspension 
 of hostilities. The term " Capitulations," as already 
 mentioned, is considered by some writers to be the 
 equivalent of the Arabic word " Soulhh," a truce, under 
 which the Christian was permitted to enjoy a certain 
 autonomy. We shall probably not err in the opinion 
 of such writers, if we employ the term as a generic 
 term, descriptive of the entire body of grants and 
 treaties, which constitute a kind of international code 
 between Christendom and Islam, and which, if we 
 date its first chapter from the privileges accorded by 
 the Kaliph Haroun el Easchid to the subjects of the 
 Emperor Charlemagne, it has been the work of ten 
 centuries to complete. 
 
 PART I. H h 
 
466 CAPITULATIONS OF THE OTTOMAN PORTE. 
 
 Treaty of ^ 264. It deserves to be noted that, since the 
 ariB, 1 5 . Q^^Q^g^^ Porte has been formally admitted into the 
 European Concert of Public Law by the Treaty of 
 Paris of 1856, it has accorded to each of the Christian 
 States of Europe by express Convention the most 
 favoured nation treatment, thereby recognising a fun- 
 damental principle of the Public Law of Christendom, 
 that all the members of the family of Nations are 
 Peers or Equals. Further, by not requiring the re- 
 newal of Treaties at the accession of each Sultan it 
 has accepted another principle of the same Public 
 Law, that Treaties may be rightfully concluded in 
 view of perpetual peace and of reciprocal benefits and 
 obligations. It cannot well be denied that the system 
 of Public Law, which has grown up amongst the 
 Nations of Christendom, is a very complex system, 
 the ofispring of a community of ideas and of an iden- 
 tical religious faith, and that, where it rests upon 
 unwritten custom, the foundations of that custom are 
 to be traced in the institutions of the Roman Empire. 
 On the other hand, between Islam and Christendom 
 there is no common platform, even of the simplest 
 kind, of consuetudinary law, and the foundations of 
 the unwritten customs of Islam are to be sought fot 
 in the legends of Judaism, or in the traditions of the 
 Arab children of the desert. Hence, although Islam 
 has made prodigious strides since the commencement 
 of the present century, in order to qualify herself to 
 participate in the benefits of the European Concert of 
 Public Law, she can only participate in those benefits, 
 whilst the Koran continues to be the source of her civil 
 law as well as the code of her religion, through the 
 channel of Conventional Law. It is from this point of 
 view, that the maintenance of the Capitulations is as 
 indispensable to the Mahommedan as to the Christian 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 467 
 
 race, if the religious abyss, which separates Islam from 
 Christendom, is to be bridged over. There have been 
 from the earliest times two schools of opinion amongst 
 the authorised expounders of the Koran, like the 
 opposite sects of Proculians and Sabinians amongst 
 the lawyers of Imperial Eome, the one school ad- 
 hering closely to the letter of the Koran, the other 
 accommodating the letter to the changing conditions 
 of the Empire, and guiding itself by the spirit of the 
 Sacred Book. The great issue between the two Schools 
 turned at one time upon the interpretation to be 
 given to the obligation of the Holy War (Djihad) 
 against the Unbeliever, whether the duty of waging 
 the Djihad was confined to the defence of Islam when 
 attacked, or was an aggressive duty against the Un- 
 believer under all circumstances. The strict interpre- 
 tation of the Koran prevailed as long as the Mussul- 
 man was everywhere victorious through dissensions 
 amongst the Powers of Christendom ; but larger and 
 more liberal views have obtained the ascendant since 
 the Treaty of 1 740, when Sultan Mahmoud I under- 
 took to bind his august successors to observe faith- 
 fully his Imperial Capitulation with King Louis XV 
 of France and his successors. This was a great inno- 
 vation upon the ancient rule of interpretation, under 
 which all Treaties with the Unbeliever were only tem- 
 porary suspensions of hostility. A far more important 
 innovation was made in 1 871 in respect of the liberty 
 which the Koran allows to the good Mussulman to 
 release himself from all compacts with the Unbeliever 
 with or without notice, for upon the question whether 
 notice is required the opinion of Mussulman lawyers 
 is still divided. But the Porte ^^ has formally acceded 
 
 '= Gatteschi, Manuale, &c., p. xxiii. 
 H li a 
 
468 CAPITULATIONS OF THE OTTOMAN PORTE. 
 
 Conferences to the Annex to the first protocol of the Conferences 
 of 1871. of London of Jan. — March, 1871, under which the 
 Porte, in concert with the other Signatory Powers of 
 the Treaty of Paris of 1856, has solemnly declared, 
 that "it is an essential principle of the Law of Nations, 
 that no Power can release itself from the obligations 
 of a Treaty or modify its stipulations without the 
 consent of the contracting parties by means of an 
 amicable understanding." Hence the Capitulations of 
 the Ottoman Porte, confirmed as they have been by 
 a long series of Treaties with the various Powers of 
 Europe, are to be regarded as a special chapter of the 
 Conventional Law of Europe, indispensable to Islam 
 in order to enable her to participate in the European 
 Concert of Public Law without doing violence to her 
 own Keligious Law. On the other hand, they afford a 
 guaranty to the Christian States of Europe, that the 
 Porte, having been admitted by them to the benefit 
 of their Public Law, will not withdraw from their 
 subjects the privilege of living under the protection 
 of their own laws and the jurisdiction of their own 
 magistrates, whilst they contribute to the prosperity 
 of the Ottoman Empire by residing within a country, 
 in which, without the Capitulations, they would, undep 
 the Lex Loci, have no title either to safety of life or to 
 security of property. It has been well said by the 
 Baron J. de Testa, in his Criticism of the Ottoman 
 Memorandum of AprU, 1869^*, which declared the 
 Capitulations to be the great obstacle to the civilisa- 
 tion of Islam, that the statesman, who would counsel 
 the Ottoman Porte to seek the suppression of the 
 Capitulations, would be guilty of signal perfidy to its 
 
 ^* Communicated to the Ee- Powers at Constantinople on be- 
 presentatives of the European half of the Sublime Porte. 
 
CAPITULATIONS OF THE OTTOMAN PORTE. 469 
 
 true interests. The Capitulations may require modi- 
 fications from time to time, but to suppress them 
 would be to provoke a new Crusade against Islam, 
 and to invite a violent change in the Guardianship 
 of the Dardanelles. 
 
INDEX. 
 
 Aali Pacha, Grand Vizier of the 
 
 Sultan, no, 
 Aaroun el Easohid. See Haroun. 
 Abbas Facha, successor of Mehemet 
 
 Ali, 107. 
 Abbot, Lord Chief Justice, his judg- 
 ment that personal property has 
 
 no locality, 281. 
 Abdul Medjid, Sultan, organisation of 
 
 the Vilayets, 93. 
 Abdul Medjid, Hatti Cherif of Gul- 
 
 khanb, 114. 
 Achsean Assembly, 386. 
 Ackerman, Convention of, Oct. 7, 1826, 
 
 127. 
 Acquisition, derivative, 224. 
 Acquisition, when the foundation of 
 
 the right of property, 195. 
 Actus ad omnes populos, its meaning, 
 
 359- 
 
 Adams, President, his Message to 
 
 Congress in 1827, 203. 
 Adams, Hon. J. Quinoy, American 
 
 Secretary of State in 1824, 207. 
 Adana, Fachalik of, 106. 
 Addington, Mr., a British Commis- 
 sioner in 1826, 201. 
 Admiral, origin of the term, 288. 
 Admiral, not known in England before 
 
 Edw. I, 288. 
 Admiralty, Black Book of the, 322. 
 Admiralty, High Court of, 157. 
 Admiralty Courts, their jurisdiction, 
 
 289. their procedure according to 
 
 the Civil Law, 289. * 
 
 Adrianople, Treaty of, 1829, 137. 
 Agent of the French Nation, under 
 
 that title a member of the French 
 
 mission in Spain, 312. 
 Ahmed I, Sultan, his Capitulations 
 
 with the Dutch, 459. 
 Ainali Kavao, Convention of, in 1 779> 
 
 461. 
 Alexander VI, Pope, his famous Bull 
 
 of anno 1493, 208. 
 Alexander the Great, 446. 
 Alexander, Emperor of Bussia, his 
 
 romantic idea of a Holy Alliance, 
 
 392- 
 Alexandria, built to the westward of 
 
 the Delta of the Nile, 446. 
 Alexis III, Emperor of Constantinople, 
 
 his Golden Bull to the Venetians, 
 
 450- 
 
 Algerine Corsairs in the 1 7th century, 
 96. in the 19th century, 163. 
 
 Algiers, an .acquisition of the Rene- 
 gade Barbarossa, 95. 
 
 Ali Abou'l Hassan Mas'oudy, a famous 
 Arab historian, 446. 
 
 Alienage, as to ownership of laud, in 
 Great Britain and the United States, 
 421. 
 
 Allegiance, Natural, a creature of 
 municipal law, 2 74. 
 
 Alliance, Holy, a personal league 
 (Sept. 14, 1815), 392. its import 
 declared at Aix-la-Chapelle (1818), 
 393. its history, 394. 
 
 Alliance, Quadruple, of 1813, 72. 
 
 Alluvion, Eight of, 251. 
 
 Alyattes, King of Lydia, 399. 
 
 Amalphi sacked by the Pisans, 447. 
 
 Amalphitans, their factory at Alex- 
 andria in the 9th century, 446. 
 
 Amasis, King of Egypt, 445. 
 
 Ambassador, his person inviolable, 
 365. origin of the term, 334. 
 whether a state is bound to receive 
 one, 336. liable to certain local 
 Kates and Tolls, 369. entitled 
 formerly to the ceremony of a 
 Solemn Entry, 363. privileged from 
 State taxation, 369. cases of arrest 
 in itinere, 377. his right of safe 
 conduct, 373. right of innocent 
 passage, 376. exceptional cases, 
 
 377- 
 America, United States of. Articles of 
 Confederation of 1777 confirmed in 
 1778, 56. Constitution of 1778, 
 57. recognised by France under 
 Treaty of Paris, Feb. 6, 1778, 
 20. 
 
472 
 
 INDEX. 
 
 Ainphictyonic Confederation, 385. 
 
 Anderson's case, Habeas Corpus re- 
 fused by Court of King's Bench in 
 Canada, 413. granted in England, 
 but too late, 413. 
 
 Anderson, the slave, his Extradition 
 claimed by the United States of 
 America for murder, 413. 
 
 Andorre, Bepublio of, 44. 
 
 Andrew's, St., Cross, 323. 
 
 Anne, Queen, of England, 360. 
 
 Anne, the Princess, guaranty of her 
 succession by William III, 433. 
 
 Antivari, Port of, annexed to Monte- 
 negro, 144, 324. 
 
 Antonine, Emperor, his approval of 
 the Ehodian Sea Laws, 286. 
 
 Aquaa medium filum, 295, 297, 
 298. 
 
 Arabs, pastoral, 221. 
 
 Arcifinious States, Varro's definition 
 of them, 215. 
 
 Argentine Confederation, its consti- 
 tution in 1853, 60. 
 
 Aristarchi Bey, his Ottoman Inter- 
 national Law, 447* 
 
 Aristotle, the Philosopher of Practical 
 Life, 385. 
 
 Assiduae Legationes, 351, 371. 
 
 Asylum, pale of the, amongst the 
 Romans, 383. 
 
 Asylum, right of, in an Ambassador's 
 Hotel, 367. 
 
 Asylum to persons accused of crime in 
 other countries, 408. 
 
 Audience, Public, generally accorded 
 to Ambassadors and Nuncios on 
 their arrival, 364. 
 
 Audience, private, of ambassadors 
 usual at the Court of St. James, 
 
 364- 
 Augereau, General, Pull Powers from 
 
 the First Consul Napoleon, 360. 
 Augustine, St., his " Civitas Dei," 3. 
 Austin on Jurisprudence, 1 74. 
 Austria, her Capitulations with the 
 
 Porte in 1615, 459. 
 
 Balance of Power, Treaties of Utrecht, 
 
 anno 1713, 187. recognised at the 
 
 Congress of Vienna, anno 181 5, 188. 
 
 in the Treaty of Constantinople, 
 
 anno 1854, 189. 
 Baldus favourable to Sea Tolls, 305. 
 Barbarossa, otherwise the Greek 
 
 Eenegade Kharaddin, 95. 
 Barbary Coast, the States on the, 95. 
 
 dependencies of the Ottoman Porte 
 
 on the, 40. 
 
 Barbary States, their subjects amen- 
 able to the law of blockade, 162. 
 enjoyed the Eight of Treaty, 24.^ 
 
 Barbary Governments, their treaties 
 with the European Powers, 96. 
 
 Barbeyrac holds a positive law of 
 Nations to be a ehimsera, 152. 
 
 BUsle, City of, 181. 
 
 Bathurst, Lord, his letter of Oct. 30, 
 1815, as to Treaties being put an 
 end to by War, 441. 
 
 Batoum ceded to Eussia, 122. 
 
 Bays of the Sea, 294. 
 
 Belgian Capitulations with the Porte 
 in 1838, 462. 
 
 Belgian Provinces, object of their 
 union to Holland, 188. 
 
 Belgium, its neutrality, 437. 
 
 Belle Isle, Duo de, arrested although 
 an ambassador in itinere, 377. 
 
 Belt, the Great, 307. 
 
 Beni-Hafas, a dynasty of sovereigns 
 at Tunis, 95. 
 
 Bentham, his suggestion of the phrase 
 "International Law," 158. 
 
 Bessarabia, retroceded to Eussia by 
 Treaty of Berlin, 139. 
 
 Bethlen, Gabriel, Voievode of Transyl- 
 vania, 131. 
 
 Black Sea, a Territorial Sea, 294. 
 
 Black Sea, Convention of 1856 as to, 
 abrogated in 1871, 181. 
 
 Bluntschli's opinion as to narrow 
 straits of the Sea, 299. 
 
 Board of Trade, its notice as to German 
 Fisheries, of December, 1874, 314. 
 
 Bogdan, Vilayet of, identical with 
 Moldavia, 94. 
 
 Bojana, Eiver, frontier of Montenegro, 
 144. 
 
 Borneo, North, British Company, its 
 maritime flag, 324. 
 
 Bosnia and Herzegovina occupied by 
 Austria-Hungary, upon an under- 
 standing with the Porte, 121. 
 
 Bosniak Beys, 115. 
 
 BouUenois adopts Huber's classifica- 
 tion of Statutes, 265. 
 
 Bourbon, House of, 21. 
 
 Bourbon renunciation of the Crown 
 of Spain, 187. 
 
 Bray, Count de. Bavarian Envoy, 337. 
 
 Brazil, its Treaty of 1858 with the 
 Porte, 463. 
 
 Bremen, Duchy of, transferred to 
 Sweden in 1648, 254. wrested from 
 Sweden by Denmark in 171 2, 254, 
 
 434- 
 Bremen, Archbishops of, 253. 
 Bridge, below the first, on tidal rivers, 
 
INDEX. 
 
 473 
 
 Admiralty Jurisdiction prevails, 
 
 291. 
 Buenos Ayres admitted into the 
 
 Argentine Confederation in 18 eg, 
 
 60. 
 Bulgaria constituted an autonomous 
 
 principality, 116. its first prince, 
 
 Alexander I, in 1879, 117. 
 Buller, Justice, Mr., Penal Laws of 
 
 Foreign States not taken notice of, 
 
 406. 
 Bundesstaat distinguished from 
 
 Staaten-bund, 69. 
 Eynkershoek, his views as to Contra- 
 band of War, 170. 
 
 Cachet Seal of Minister of Foreign 
 Affairs, 354. 
 
 Calmar, Union of, in 1307, 52. 
 
 Calvo,Oharles, his Droit International, 
 328. 
 
 Cambridge, University of, 157. 
 
 Cambyses, his Conquest of Egypt, 
 445- 
 
 Campbell, Lord, his view of Domioil, 
 277. 
 
 Candia, Island of, 105, 106. 
 
 Candy, King of, his Treaty with the 
 Dutch, 401. 
 
 Canton, Mahommedan factory at, in 
 the ninth-century, 447. 
 
 Capitulations, meaning of the term, 
 45 1 , 463. for surrender of fortresses, 
 438. of the Swiss Cantons to furnish 
 troops for hire, now forbidden, 429. 
 of the Ottoman Porte, may be 
 modified, but not abolished, 469. of 
 the Porte with France, in 1535, 96. 
 English, with the Porte, 1580, 458. 
 
 . Dutch, with the Porte, 1612, 459. 
 
 Capo d' Istrias, Count, 113. 
 
 Captures not to be raadewithin cannon- 
 shot of the Coast, 438. 
 
 Carlovitz, Treaty of, 132. 
 
 Carmel, Mount, the Monastery on, 464. 
 
 Cartels for exchange of prisoners. 
 438. 
 
 Cassiodorus, secretary of Theodoric 
 
 . the Great, 448. 
 
 Castlereagh, Lord, British Secretary 
 
 . of State for Foreign Affairs, 392, 
 
 394- 
 
 Catalonia, Maritime Laws of, 288. 
 
 Ceremonial, Maritime, formerly ob- 
 served with great precision, 316. 
 
 Ceylon, Island of, 401. 
 
 Chaco, El Gran, Indians of, 236. 
 
 Chapel of a Legation, 37. 
 
 Charges d' Affaires of Moldavia and 
 Walaohia, 352. 
 
 Charkier Steamship, property of the 
 
 Khedive of Egypt, sued in the 
 
 English High Court of Admiralty, 
 
 326. 
 Charlemagne, Emperor, liis treaties 
 
 with the Sultan Haroun al Kaschid, 
 
 446, 465. 
 Charles II of England, 97, 99. 
 Charles V, Emperor, his expedition to 
 
 Tunis, 95. 
 Charleston, Port of, 273. 
 Charrifere, Negotiations de la France 
 
 avec le Levant, 454. 
 Cherif Pacha, no. 
 China, treaties with Great Britain, 
 
 401. 
 Chinese treaties with European 
 
 Powers, 266. 
 Cicero, his Treatise de Eepublica, 3. 
 Cinnamon trade at Ceylon, 401. 
 Civitas Maxima, of "Von Wolff, 148. 
 Cleirac, his opinion as to the origin 
 
 of a national flag on the High Seas, 
 
 322- 
 Cochin, his opinion that personal pro- 
 perty follows the Domioil, 280. 
 Code Napoleon, its restrictions as to 
 
 suits between Foreigners, 269. 
 CoUegium Fetialium at Rome, 384. 
 Comity of Nations in matters of 
 
 Kevenue and of Health, 311. with 
 
 regard to Resident Ambassadors, 
 
 230. gives effect to Foreign Law, 
 
 264. 
 Compact, the Family, of the House of 
 
 Bourbon of 1761, 21. 
 Confederation, Helvetic, of May 29, 
 
 1874, 55, 64. 
 Confederation, Germanic, origin of, 
 
 70. its dissolution, 83. 
 Confederation, North German, 84. 
 Conference at Aix-laChapeEe, its Pro- 
 tocol of Nov. 15, i8i8, as to the 
 
 Holy Alliance, 393. 
 Conference at Kanliclja, July 15, 1868, 
 
 respecting the Lebanon, 1 20. 
 Conference of London, anno 1826, 
 
 204. of 1871,468. of 1883, 246. 
 Conference at Constantinople, April 
 
 22, 1873, respecting the Lebanon, 
 
 120. 
 Conferences of Constantinople of 1877, 
 
 116, 121. 
 Conferences of Vienna of 1855, 190. 
 Congress of Aix-la-Chapelle, Nov. 2 1 , 
 
 1818, 31, 344. 
 Congress of Berlin, June 13- July 13, 
 
 1878, 115. 
 Congress of Paris of 1856, respecting 
 
 Montenegro, 143. 
 
474 
 
 INDEX, 
 
 Congress of Paris in 1856, its Declara- 
 tion of Maritime Law, 172. 
 
 Congress of Vienna, June 9, 18:5, its 
 decision as to Cracow, 38. of Aug. 
 12, 1 815, recognises the neutrality 
 of Switzerland, 64. of 181 5, no 
 Ottoman minister attended it, 90. 
 Declaration as to the Free Naviga- 
 tion of Rivers, 91, 173, 245. clas- 
 siBcation of Diplomatic Agents, 
 344. of 1815, as to reception of 
 Diplomatic Agents, 363. 
 
 Conrad II, Emperor, his Charter, 
 Dec. 10, 1038 of the Stade Tolls, 
 
 263- 
 
 Consolato del Mare, 159, 287, 378. 
 
 Consulates, Public, their institution 
 in Foreign Countries, 378. 
 
 Consules Maris, described in the 
 Consolato del Mare, 289. 
 
 Consuls, various grades of, 380. Com- 
 mercial not political agents, 350. 
 their status in the Levant, excep- 
 tional, 379. in the Barbary States, 
 98. of France, exercise jurisdic- 
 tion over French vessels in foreign 
 ports under Treaty, 405. 
 
 Contiguity, right of, notion of the 
 Koman Jurists, 214. 
 
 Contraband of War, agreement in 
 1797 between Kussia and Great 
 Britain, 169. limitation of, 400. 
 practice of Nations, 171. a Com- 
 mon Law of Nations according to 
 Bynkershoek, 170. 
 
 Convention of Feb. 9, 1776, as to the 
 Vistula, 250. of Constantinople, 
 March 10, 1779, '33- "f ^^^ Lo- 
 renzo el Eeal, of 179S, 233, 235. 
 of St. Petersburg, Oct. 13, 1795, as 
 to Poland, 37. of 1801, between 
 Euasia and Great Britain, 168. 
 Third Article as to Contraband of 
 War, i6g. 
 
 Convention of Keichenbaoh, June 15, 
 
 1 8 13, between Great Britain,Russia, 
 and Prussia, 429. of Paris, April 
 23, 1814, as to Balance of Power, 
 188. of Moss, for the Union of 
 Norway with Sweden, Aug. 14, 
 
 1814, 52. of Paris as to the Ionian 
 Islands, Nov. 5, 1815, 35, 325. of 
 London, Sept. 26, i8i6, as to the 
 Ionian Islands, 36. of Ackerman, 
 Oct. 7, 1826, 127, 133. of Mayence, 
 March 31, 1 831, as to the naviga- 
 tion of the Rhine, 245. ofKataya, 
 May 5, 1833, between Egypt and 
 Turkey, 106. of August 2, 1839, 
 with France as to Channel Fisheries, 
 
 313. not operative in French 
 Waters, 314. of London, July 13, 
 1841, as to the Dardanelles, 160. 
 of Dresden, Aug. 30, 1843, for 
 regulating the Elbe ToUs, 255. of 
 Balta Liman, May 1,1849, 134. "^ 
 Paris, 1856, special, as to Black 
 Sea, 181. abrogated in 1871, 181. 
 of Aug. 19, 1858, between Mol- 
 davia and Walachia, 137. of Turin, 
 March 22, 1862, 46. of Great 
 Britain with Tunis, July J 9, 1874, 
 100. of June 4, 1878, as to Cyprus, 
 
 123- 
 Conventions, transitory, perpetual in 
 
 their nature, 226, 418. for the 
 
 hire of mercenary troops, forbidden 
 
 under the Swiss Constitution, 429. 
 Conventions of 1801 and of 1807, 
 
 between the United States and' 
 
 Great Britain, 298. 
 Coran, the, its application to Christian 
 
 dependencies, 94. 
 Couza, Alexander, Prince, Hospodar 
 
 of theDanubian Principalities, 138. 
 Cracow, Free City of, 37, 428. 
 Cracow, suppression of the Free City 
 
 in 1846, 40. 
 Cross, Red, the general device granted 
 
 by the Holy See to the Crusaders, 
 
 322- 
 
 Customs, the, of the Sea, 290. 
 
 Cyprus, Island of, Treaty of Alliance 
 between Great Britain and the 
 Porte, 121. assigned by Turkey to 
 be occupied and administered by 
 England, 1 23. 
 
 D'Aguesseau, Chancellor, 158. 
 D'Angeberg's Congrfes de Vienne, 
 
 394- 
 
 Daniel I, Vladika of Montenegro, 
 his Code of Laws, 142. 
 
 Danish Capitulations with the Porte 
 in 1756, 460. 
 
 Danube, Vilayet of the, 93. St. 
 George's mouth, 239. River, under 
 Treaty of Paris and of Vienna, 241. 
 Riverain Commission of the, 242. 
 European Commission of the, created 
 in 1856, 241 ; prolonged for ten 
 years in 1871, 244 ; powers further 
 extended in 1878, 246; prolonged 
 in 1 883 for twenty-one years, 246 ; 
 powers extended up to Galatz, 247 ; 
 further extension up to Ibraila, 248. 
 Mixed Commission of the, created 
 in 1883, 248. Act of Navigation 
 of, Nov. 7, 1857, modified on March 
 8, 1866, 243, 247. 
 
INDEX. 
 
 475 
 
 Danzic, under the protection of 
 Prussia, 427. 
 
 Dardanelles, Straits of the, free 
 navigation by merchant vessels, 
 308. guardianship of the, 469. 
 
 Daru-l-Islam, distinguished from the 
 Daru-1-Harb, 464. 
 
 D'Ayrest, Secretary of State to Queen 
 Anne of England, 360. 
 
 Declaratory Articles of a Treaty, 173. 
 
 Defender of the Faith, Title conferred 
 by the Pope on the Kings of Eng- 
 land, 347. 
 
 De Lovio v. Boit, 2 Gallison's Reports, 
 p. 400, 289. 
 
 Deserters, Extradition of, 409. 
 
 Desiik, a village on Kosetta arm of 
 the Nile, formerly Naucratis, 445. 
 
 Diet of the Germanic Confederation, 
 its international functions, 76. its 
 
 I ordinary assembly, 77. its Full 
 Chapter, 79. 
 
 Diplomacy, a Science, not merely an 
 Art, 163. 
 
 Diplomatic Science, founded by 
 Leibnitz, 166. 
 
 Diplomatic Law of Nations, 151. 
 
 Diplomatic Agents, three classes 
 established at the Congress of 
 Vienna, 344. of second class, 348 ; 
 of third class, 349 ; of fourth class, 
 350. ceremonial of their recep- 
 tion, 363. 
 
 Diplomatie, Traits Complet de, 166. 
 
 Discovery, act of, gives an inchoate 
 title, 197. notification of, pre- 
 sumes an intention to occupy, 205. 
 must be notified to other nations in 
 order to found a title to territory, 
 198. 
 
 Djihad, n, Holy War against Chris- 
 tians, 467. 
 
 Dobroutcha, territory south of, assigned 
 to Boumania, 140. 
 
 Domicil, the criterion of national 
 character, 275. 
 
 Domicil of origin, distinguished from 
 Domicil of choice, 281. 
 
 Dreyer, De inhumane jure naufragii, 
 449. 
 
 Droit de Renvoi, 408. 
 
 Dunkirk not to be forfeited under 
 the Treaty of Paris, 1763, 180. 
 
 Edict of the States General, anno 
 1679, as to ambassadors, 374. 
 
 Edward 1, ordinance as to Jura 
 Coronce, 297. 
 
 Efflak, Vilayet of, identical with 
 Walachia, 94. 
 
 Egypt, Special Tanzimat for, 109. 
 Egypt, conquered by the Ottomans in 
 
 1517. 105- 
 
 Egypt, settlement of, bj' the Treaty of 
 London of 1840, 106. Mixed Tri- 
 bunals introduced into, 1 10. 
 
 Elgin, Earl of, a dUtenu in France, al- 
 though an ambassadori»i<ine»'c,377. 
 
 Elizabeth, of England, concludes a 
 treaty with the Porte in 1580, 457- 
 
 Elizabeth, Queen, her answer to the 
 Spanish Ambassador, Mendoza, 
 2o8. 
 
 Elsinore, Tolls of the Sound, 307. 
 
 Embascadores, 339. 
 
 Emigrants, who abandon their native 
 country sine animo reverlendi, 275. 
 
 Empire, Roman, of the Germans dis- 
 solved in 1801, 24. a primary terri- 
 torial right, 230. Right of, distinct 
 from Right of Property, 231. 
 
 England, her supremacy over the 
 British Channel, 321. 
 
 England, King of, entitled Defender 
 of the Faith, 347. 
 
 Enguarantus Dominus de Causy, 
 earliest Admiral of France, 288. 
 
 Ensign, Red, carried by all British 
 merchant vessels, 324. 
 
 Eudaemon of Nicomedia, 286. 
 
 Exequatur requisite for a Consul, 380. 
 
 Exmouth, Lord, 97. 
 
 Ex-Territoriality, privilege of, 271 ■ 
 of an ambassador, 366. 
 
 Extradition of political offenders, 
 exceptional, 410. Royal Commis- 
 sion on, 41 7- 
 
 Eyre, Lord Chief Justice, 278. 
 
 Factories, Christian, in the Levant, 
 267. Greek, in Egypt, 445. 
 
 Family Compact of the House of 
 Bourbon, Aug. 15,1761,397. re- 
 nounced by the National Assembly 
 of France in 1790, 398. 
 
 Fetial College at Rome, 384. 
 
 Fetial Law, 157. 
 
 Field, Dudley, his Outlines of an Inter- 
 national Code, 299. 
 
 Finch, Sir John, English Ambassador 
 to the Porte, 98. 
 
 Fiore, Pasquale, Professor, his Trat- 
 tato di Diritto lutemazionale Pub- 
 lico, 329. 
 
 Firman of the Sultan as to Tunis, 
 Oct. 23, 1871, 100. 
 
 Firman of Khidev of Egypt, 1867, in 
 favour of Ismail Pacha, 109. of 
 Aug. a, 1879, in favour ofTewfifc 
 Pacha, 112. 
 
476 
 
 INDEX. 
 
 Firman of the Sultan as to Egypt, 
 June I, 1841, 107. May 27, 1865, 
 108. May 2, 1866, 108. June 8, 
 1867, 109. June 8, 1873, 109. 
 
 Einnan of Sultan Ahmed I to Les Ke- 
 ligieux de Jerusalem in 1604, 332. 
 
 Fisheries in the North Sea, 301. 
 
 Fishery, limits of national right, to 
 three miles from the coast, 313. 
 
 Flag of Jerusalem, 330. House Flag 
 of the Latin Convents, 332. 
 
 Flag, the Five Cross, 330. mer- 
 cantile, of Samos, 326. mercan- 
 tile, of Moldo-Walaohian Princi- 
 palities, 326. mercantile, of 
 Egypt, 326. mercantile, of Monte- 
 negro, 144. mercantile, of Mol- 
 davia and Walachia, 134. mer- 
 cantile, of the Free Cities of Ger- 
 many, 326. mercantile, of Sweden 
 different from Norway, 53. mer- 
 cantile, of Switzerland, 327. mer- 
 cantile, of Ionian Islands, 35. the 
 mercantile, that of a company or a 
 guild, 321. House, at the discre- 
 tion of the Shipowner, 324. of 
 Egypt identical with that of the 
 Ottoman Porte, 112. salute of the, 
 on the High Seas, 317. 
 
 Flags of merchant vessels strictly 
 regulated, 319. 
 
 Florence, Republic of, its Egyptian 
 Capitulations in 1488, 452. 
 
 Florida ceded to the United States, 
 
 234- 
 
 Floridaa, the, ceded by Spain to the 
 United States of America in 1800, 59. 
 
 Fcelix, Traits du Droit International, 
 269, 283. his opinion as to the 
 refosal of French tribunals to enter- 
 tain suits between foreigners, 270. 
 
 Fontenao, M., Governor of Canada in 
 
 1637. 213- 
 
 Foreigners out of the pale of the Jus 
 Civile in ancient Home, 334. may 
 not sue one another before a French 
 tribunal, 269. 
 
 ForSt, Jean le, French Ambassador 
 to the Porte, 455. 
 
 Forum delicti, 407. 
 
 Forum rei sitae, 2 78. 
 
 France, King of, entitled the Most 
 Christian King, 347. 
 
 Francis I of France, declaration of 
 war against Emperor Charles V by 
 reason of murder of his Ambas- 
 sadors, 376. his treaty with the 
 Sultan Soleiman II in 1535, 453. 
 
 Frederic I, Emperor, Charter of May 
 7, 1 189, 253. 
 
 Frederick IV of Denmark, married 
 with the left hand, 356. 
 
 Free Cities of Germany had » mer- 
 cantile, but not a military flag, 326. 
 
 French Kevolution of 1789, put an 
 end to the Treaties of Utrecht, 188. 
 
 Fugitive Slaves, Extradition of, 409. 
 
 Fugitives from Justice, early treaties 
 between Conterminous States, 416. 
 
 Galatz, Consul at, 137. under the 
 Jurisdiction of the European Com- 
 mission of the Danube, 244. 
 
 GaUatin, Mr., Plenipotentiary of the 
 United States in 1826, 202. 
 
 Gatteschi, Manuale di Diritto Otto- 
 mano, 447, 452. 
 
 Gavillot, J. C. Aristide, Les Capitu- 
 lations et la B^forme Judiciaire en 
 
 %yp'e, 452- 
 
 Geneva, Republic of, 10. 
 
 Genoa, her supremacy over the Ligu- 
 rian Sea, 321. 
 
 Genoese community at Constanti- 
 nople in the thirteenth century, 
 450. their privileges in 1453, 46i- 
 
 Gentilis, Albericus, his treatise De 
 Jure Belli, 156. 
 
 George's, St., Channel, neutrality of, 
 302. 
 
 George's, St., Cross, ensign of the 
 Kings of England, 322. 
 
 German Empire of 187 1, its formation, 
 83, 84. its constitution, 85. 
 
 German, North, Government, its ordi- 
 nance aa to fisheries within three 
 miles of her German Coasts, 315. 
 
 Germanic Empire dissolvediu 1806, 24. 
 
 Germanic Confederation, agreed upon 
 by Treaty of Paris, May 30, 18 14, 
 
 72. Final Act of. May 15, 1820, 
 
 73. its dissolution, 83. its consent 
 required for the cession of a portion 
 of the Duchy of Luxemburg, 82. 
 
 Gesammstaat, Prussian, 50. 
 
 Ghuri-El, Sultan, the last Mameluke 
 Sultan of Egypt, 453. 
 
 Gluokstadt Toll, 256. 
 
 Goderich, Mr., British Envoy, 337. 
 
 Godolphin, on the Admiralty Juris- 
 diction, 288. 
 
 Gothland, merchants of, 449. 
 
 Grotius, his definition of a State, 4. 
 his theory of Consuetudinary Law, 
 147. 
 
 Guaranty, treaties of, 431. of Duchy 
 of Schleswig, 434. of the Prag- 
 matic Sanction of the Emperor 
 Charles VI, 432. 
 
INDEX. 
 
 477 
 
 Guardaoostas, Spanish, for Berenue 
 
 purpoaee, 310. 
 Guilds of Shipowners in Imperial 
 
 Borne, 321. . 
 Gulkhanfe, Hatti Cherif of, 114. 
 
 Hakluyt's Voyages, Edition of, 1598, 
 
 457. 464- 
 
 Hamburgh, exempted from Stade Tolls 
 by Charter of Frederic I, May 7, 
 1 189, 253. 
 
 Hammer, von. Baron, his History of 
 the Ottoman Empire, 455. 
 
 Hardenberg, Prince, 392, 394. 
 
 Haroun al Kaschid, Sultan, his trea- 
 ties with the Emperor Charlemagne, 
 446, 465. 
 
 Hatti Cherif of the Sultan, Feb. 12, 
 1841, 107. of June, 1879, depos- 
 ing the Khedive Ismail, 11 1. of 
 Gulkhan^, 114. 
 
 Hatti-Houmaioun of 1 856, 116. 
 
 Heath, Mr. Justice, his judgment in 
 Ogden V. Saunders, 279. 
 
 Hedjaz, the, renounced by Mehemet 
 Ali, 106. . 
 
 Helvetic Confederation of 181 5, 64. 
 
 Henry III, Emperor, Charter May 13, 
 1040, 253. 
 
 Herodotus, his visit to Egypt, 445. 
 
 Hertslet, Sir E., his Treaties and Tariffs 
 with Turkey, 459. 
 
 High Seas, the highway of Nations, 
 290. 
 
 Histoire de Jerusalem et d'H^bron, 
 MS. in la Bibliothfeque Nationale, 
 
 , 4^4- 
 
 Hobbes, his idea of a Nation, 11. de 
 Civitate, 151. 
 
 Hohenzollern - Sigmaringen, Prince 
 Charles Louis, in vested Oct. 2 3, 1 866 
 as Charles I of Eoumania, 138. 
 
 Holstein and Lauenberg, Duchies, 
 surrendered by the King of Den- 
 mark, 50. 
 
 Holy Places at Jerusalem under the 
 protection of France, 446, 454. 
 
 Horn, Andrew, Chamberlain of Lon- 
 don, 297. 
 
 Hospodar of Moldavia, 132. 
 
 Hovering Acts of Great Britain, 309. 
 
 Huber, his three maxims as to the 
 effect to 1)6 given to Foreign Laws, 
 261. 
 
 Hudson's Bay Company, incorporated 
 by King Charles II, 213. 
 
 Hungary, Crown of, Act of Settle- 
 ment, 49. 
 
 Hungary, the King of, his title of the 
 Apostolic King, 347. 
 
 Huningen not to be fortified under 
 the Treaty of Paris, 1815, 181. 
 
 HuskisBon, Mr., a British Commis- 
 sioner in 1826, 201. 
 
 Ibrahim Pacha, Governor of Candia, 
 anno 1827, 105. nominated Vali of 
 Egypt before his father's death, anno 
 1848, 107. 
 
 Ikaria, Bishop of, 114. 
 
 Independence, fundamental element 
 of a Nation, 9. of certain States, 
 conventional, 26. 
 
 Indian Title, resting on occupancy, 
 according to Chancellor Kent, 220. 
 according to Chief Justice Marshall, 
 222. 
 
 Instructions of a Diplomatic Agent 
 may be kept secret, 360, 362. 
 
 International Law, phrase introduced 
 by Mr. Bentham, 158. 
 
 International Morality, supplemental 
 to International Law, 176. 
 
 Internuncio, Austrian, at Constan- 
 tinople, 348. 
 
 Inviati or Ablegati, Latin designation 
 of Envoys, 349. 
 
 Inviolability, personal, of an Ambas- 
 sador, 367. 
 
 Ionian Islands, under a British Pro- 
 tectorate Nov. 5, 1815, 103. sove- 
 reignty renounced by Special Act 
 of Ottoman Porte, April 24, 18 19, 
 36, 104. Protectorate renounced 
 by Great Britain, anno 1863, 37. 
 united to Greece and declared 
 neutral territory by Treaty of Lon- 
 don, Nov. 14, 1863, 37. their mer- 
 cantile flag, 35, 325. 
 
 Iphigenia, legend of, 444. 
 
 Iron Gates of the Danube, 244, 245. 
 
 Islam, its unwritten Customs, whence 
 derived, 466. 
 
 Isle of Serpents, 139, 245. 
 
 Ismail Pacha, created Khedive of 
 Egypt, June 8, 1867, 109. abdi- 
 cated the Khediviate of Egypt, anno 
 1879, 112. 
 
 Italian Capitulations with the Porte 
 of 1740, 461. 
 
 Jahde, the Bay of, rarely frozen over, 
 
 33- . ,. . o ^ 
 
 Janissaries, destruction of, m 1826, 
 
 90. 
 
 Japan, Swiss Envoy to, 329. 
 
 Japanese Treaties with European 
 
 Powers, 267. 
 
478 
 
 INDEX. 
 
 Jerusalem, Latin Kings of, 448. le 
 Prieur de, 330. Holy Places at, 
 454. Flag, 455. 
 
 Jerusalem Knights of St. John at 
 Tripoli, 96. 
 
 John, Don of Austria, 96. 
 
 Judge-Consul, hie ofBce first intro- 
 duced at Barcelona in 1279, 378. 
 
 Judge - Conservator, established in 
 Portugal under Treaty of 1654, 
 268. in Portugal, abolished in 
 1842 by Treaty, 403. 
 
 Jura Coronse, in the time of King Ed- 
 ward I of England, 297. 
 
 Jura littoris, lighthouses and sea- 
 beaeons, 304. 
 
 Jurisdictional waters of a nation, 293. 
 
 Jus Gentium of the Bomans, 269. 
 
 Jus inter Gentes, 150, 230. 
 
 Jus Naturale, of the Roman Jurists, 
 
 154- 
 Jus Possessionis, 202. distinguished 
 
 from Jus Possidendi, 228. 
 Jus Possidendi, 193. 
 
 Kait Bey, the last but one of the 
 Mameluke Sultans of Egypt, 452. 
 
 Kaliphate, when acquired by the Otto- 
 man Sultans, 453. 
 
 Kara George, Vosd of Servia, 126. 
 
 Kayson Kehagasi, the Agent of Gover- 
 nors of Provinces in the Ottoman 
 Empire, 353. 
 
 Kent, Chancellor, on judicial decisions 
 of Prize Tribunals, 156. his view 
 of the Law of Nations, 176. his 
 definition of the Indian title of 
 Occupancy, 220. on the territorial 
 character of Laws, 259. 
 
 Kiel in Holstein, declared to be an 
 Imperial Military harbour of Ger- 
 many, 33. 
 
 Kilia branch of the Danube, 139. 
 
 Kitabi, sacred books, 465. 
 
 Knights Hospitallers of Jerusalem, 
 446. 
 
 Kniphausen, Lordship of, 30. 
 
 Kossova, battleof, June 15, 1389, 126. 
 
 Kutschuk-Kainardji, Treaty of, July 
 10, I774> 132- 
 
 Lago Maggiore, Swiss flag on steam 
 boats, 329. 
 
 Laurence, William Beach, his edition 
 of Wheaton's Elements of Inter- 
 national Law, 1 73. 
 
 Law of Treaty, alone binding on Ma- 
 hommedan States, 89. 
 
 Layard, Sir A. H., British Ambassa- 
 dor at the Porte, 123. 
 
 Leach, Sir John, his judgment in 
 
 Sutton V. Sutton, 421. 
 Leagues, Personal or Beal, 388. un- 
 equal, Vattel's division of them, 
 387. amongst States of the same 
 Keligion, 385. do not presuppose 
 a State of War, 391. 
 
 Lebanon, under a Cluistian Vali since 
 186 1 , 1 19. Conference at Kanlidja, 
 1868, 120. Conference at Constan- 
 tinople, 1873, 120. 
 
 Leek, Biver, a continuation of the 
 Bhine, 245. 
 
 Legationes assiduee, not in use in the 
 time of Grotius, 351, 371. 
 
 Legatus or Orator, the ancient title 
 of an Envoy, 334, 399. 
 
 Leibnitz, his Codex Diplomaticus the 
 foundation of the DiplomaticScienoe, 
 166. 
 
 Leopold, Prince, of Saxe-Coburg, his 
 refusal of the Crown of Greece, 113. 
 
 Lesseps, Ferdinand de, obtains a Char- 
 ter for piercing the Isthmus of Suez, 
 107. 
 
 Letters of Eeoommendation supplied 
 to Foreign Envoys, 356. 
 
 Letters of Credence expire on demise 
 of the Chief of either State, 358, 
 
 Lettre de Chancellerie, 355. 
 
 Lettre de Cabinet, 354. 
 
 Lettres de Cachet, 354. 
 
 Lex loci contractfls determines the 
 validity of a foreign contract, 265. 
 
 Lex Fori determines the remedy for 
 breach of a foreign contract, 265. 
 
 Limburg, Duchy of, real union with 
 Holland, 51. 
 
 Literae Credentiales, 353. 
 
 Lorenzo, San, el Beal, Treaty for the 
 free navigation of the Mississipi, 233. 
 
 Loughborough, Lord, his judgment 
 that personal property has no local- 
 ity, 280. as to Penal laws being 
 local, 400. 
 
 Louis XIII of France, his Treaty 
 with Algiers, 96. 
 
 Louis XV, his 'freaty with the Otto- 
 man Porte, 467. 
 
 Louisiana, ceded by France to the 
 United States of America in 1 803, 
 
 69- 
 
 Louisiana, Western Boundary of, 205, 
 209, 216. 
 
 Luxemburg, Grand Duchy of, personal 
 Union with Holland, 51. 
 
 Luxembmg, Duchy of, portions ceded 
 to Belgium in exchange for portions 
 of Limburg with consent of the 
 Germanic Confederation, 77, 82. 
 
INDEX. 
 
 479 
 
 Lymoon Pass, between Hong Kong 
 and China, 298. 
 
 Madison, his observations on Treaties, 
 165. 
 
 Mahmoud I, Sultan, treaty with 
 France of a permanent character, 
 anno 174O) 467- 
 
 Mahmoud II, Sultan, his Empire not 
 represented at the Congress of 
 Vienna, 90. division of his Empire 
 into Vilayets, 93. division of Bul- 
 garia and of Boumelia, 113, 115. 
 
 Mahomet, the Messenger of God, his 
 Covenant with the Christians, 464. 
 
 Mahomet II, Iiis grant of privileges 
 *o the Genoese in 1453, and to the 
 Venetians in 1454, 451. 
 
 Mahommedan Nations only recognise 
 the Law of Treaty, 163, excepted 
 from the usages of Christendom, 161. 
 
 Mahommedan World, its relation to 
 Christendom, 383. 
 
 Mahommedan Factory at Constanti- 
 nople under the Christian Emperors, 
 449. 
 
 Maii, Angelo, Cardinal, 3. 
 
 Malta, Enights of, at Tunis, 95. 
 
 Mameluke Beys, Masters of Egypt, 
 105. annihilated March i, iSii.by 
 Mehemet Ali, 105. 
 
 Mandate, of Full Powers to negotiate 
 a Special Convention, 358. 
 
 Mandatum Proouratorium ad hoo,,368. 
 
 Mangalia, 140. 
 
 Maria Theresa, the Empress, 250. 
 
 Marin, Storia Civile del Commercio 
 de' Veneziani, 450. 
 
 Marino, San, Eepublic of, 46. 
 
 Maris, Capitaneus, before 1272, 288. 
 
 Maritime Convention of 1 801 , between 
 Kussia and Great Britain, 1 68. 
 
 Maritime Law, Declaration of Paris, 
 of 1856, 92, 173. 
 
 Maritime Territory, 293. 
 
 Marshall, Chief Justice, his view of 
 the Indian Title, 222. his judg- 
 ment in the Schooner " Exchange," 
 272. judgment as to Penal Laws 
 being local, 406. 
 
 Martens, F. de, his Traits de Droit 
 International, 300. 
 
 Massawah, Kaimakamate of, granted 
 to Ismail Pacha, 108. 
 
 Mediterranean Pass, 97. 
 
 Medjous idolaters, 465. 
 
 Mehemet Ali, Pacha of Egypt in 
 1841, 104. 
 
 Mehemet IV, Sultan, his treaty with 
 King Charles II in 1675, 458. 
 
 Mendoza, Spanish Ambassador, iu 
 
 London, 208. 
 Mentone ceded to France in i860, 
 
 30; 
 Merlin, his objection to Mixed Statutes 
 
 as a classification, 264. 
 Message du Conseil F^d^ral de la 
 
 Suisse, 329. 
 Mettemich, Prince, 392, 394. 
 Midhat Pacha, his proposed Reforms 
 
 in 1864, 93. 
 Milan Obr^novitch, Prince of Servia, 
 
 129. King of Seivia, 130. 
 Miletus, its Treaty of Commerce with 
 
 Alyattes King of Lydia, 399. 
 Milosch, Prince of Servia, 127. 
 Minister, as a distinct class from 
 
 Ambassador, 343. 
 Minister ad interim, 349. 
 Ministers, Public, three classes, 340. 
 Ministers, Resident, introduced at the 
 
 Congress of Aix-la-Chapelle (1818), 
 
 344- . 
 Mississippi River, discovery of it, 207. 
 
 Islands at the entrance of it, 215. 
 
 navigation of the River, 233, 236. 
 Mohammed IV, Sultan, Capitulations 
 
 with the Dutch in 1680, 459. 
 Moldavia, the prey of adventurers in 
 
 the seventeenth century, 132. 
 Molesworth, Lord, his account of 
 
 Denmark, 256. 
 MoUoy, his account of the Barbary 
 
 Powers, 99. 
 Monaco,aProteotedIndependentState 
 
 in 1641, 28. incorporated into the 
 
 French Republic iu 1792, 28. ceded 
 
 by Sardinia to France in i860, 30. 
 Monaco, Prince of, his treaty with 
 
 the King of Sardinia in 181 7, 428. 
 Monroe and Pinckney, Commissioners 
 
 of United States, 209. 
 Monson, Admiral, 97. 
 Montenegro or Tzernegdra, called by 
 
 the Ottomans Karadagh, 140. 
 Montenegro, its condition as settled 
 
 at the Congress of Paris, 1856, 143. 
 
 its Independence recognised at the 
 
 Congress of Berlin, 1878, 144. 
 
 mercantile flag of, 325. 
 Monti, Marquis de, arrested, although 
 
 an Ambassador in itinere, 377. 
 Morality, International, supplemental 
 
 to International Law, 1 76. 
 Morganatic Marriages, 356. 
 Morocco, kingdom of, 162. 
 Morris, E. Jay, American Minister to 
 
 the Porte in 1868, 456. 
 Mouradjea d'Uhsson, his Treaties of 
 
 the Ottoman Empire, 454, 455, 456. 
 
480 
 
 INDEX. 
 
 Murad III, Sultan, grants privileges 
 to British merchants in 1580, 457, 
 464. 
 
 Mutawakkil, the last of the Abasside 
 CaUphs, 453. 
 
 Nagasaki, Port of, 329. 
 
 Napoleon I, his treaty of 1802 with 
 
 the Porte, 455. 
 Nations, primary and secondary rights 
 
 of, 178. 
 Naturalisation Act, 33 Vict. ch. 14 
 
 (1870), 338. 
 Naucratis, on the Canopic branch of 
 
 the Nile, 445, 446. 
 Navarre, kingdom of, 18. 
 Navioularii, guilds of shipowners, 
 
 under the Roman Empire, 321. 
 Neeho, Pharaoh, king of Egypt, 445. 
 Nero, saying of a German Chief in 
 
 the time of, 217. 
 Netherlands, kingdom of, division in 
 
 1831, 18. 
 Netze, Eiver, ceded to Prussia, 238, 
 
 239, 240. 
 Neuchatel, Principality of, 10, 18. 
 Neumann, Recueil des Trait^s et Con- 
 ventions, 442. 
 Neutrality, Treaties of, 437. 
 Neutrality, Armed, of the Baltic 
 
 Powers, 168. 
 Neutrality of jurisdictional waters, 
 
 302. 
 Neutrality of the Seven Islands on 
 
 their Union with Greece, 37. of 
 
 Switzerland, 64. 
 Non-Christian Powers, their excep- 
 tional relations, 161. 
 Non-Ratification of a treaty, not a 
 
 breach of the Law of Nations, 363. 
 North-German Confederation, 84. 
 Norway, Union with Sweden, 53, 54. 
 Novibazar, Sandjak of, 120. 
 Nowogorod, Factory at, in thirteenth 
 
 century, 449. 
 Nubar Pacha, an Armenian Christian, 
 
 no. 
 
 Obr^novitch, Milan, Prince of Servia, 
 
 July 2, 1868, 128. 
 Occupation, primitive acquisition, 195 . 
 
 right of, 196. 
 Oder, River, ceded to Sweden, 238. 
 Oldenburg, the Duke of, assumed the 
 
 title of Grand Duke May 22, 1829, 
 
 82. 
 Omar, the Khaliph, his Capitulation 
 
 granted to the Patriarch Zephyri- 
 
 nus, 465. 
 
 Ompteda, Von, Baron, his distinction 
 between absolute and modified 
 Natural Law, 155. 
 
 Ordinance of Charles V of France as 
 to the Maritime Flag, of Deo. 7, 
 1373, 322. 
 
 Oregon Question, 213. 
 
 Ortolan, Diplomatie de la Mer, 167. 
 
 Ostrogoths, Kingdom of, in Italy, 448. 
 
 Ottoman Porte, its integrity essential 
 to the Balance of Power in Europe, 
 190. its ancient rule as to the Clo- 
 sure of the Dardanelles, 161, 190. 
 
 Oxford, University of, 157. 
 
 Papal Nuncio, his place amongst Am- 
 bassadors, 346. 
 
 Papal division of the New World be- 
 tween Castile and Portugal, J98. 
 
 Paraguay, Republic of, 236. 
 
 Fardessus, Lois Maiitimes, 449. 
 
 Parker, Chief Justice, territorial cha- 
 racter of the laws of a State, 259. 
 
 Partidas, Las Siete, a collection of 
 CastiUan Laws, 288. 
 
 Peace of a Nation, ofienoe against the, 
 in tidal rivers, 291 . 
 
 Peace of Bucharest, May 28, 181 2, 
 127, 367. of Munster, Jan. 30, 
 1648, 233. of Osnabruck, Sept. 8, 
 1648, 254. of Paris of 1856, 116. 
 of San Stefano, 93, 120, 121, 139. 
 of Sitvatorok, Dec. 11, 1606, 131. 
 of Stettin, anno 1570, 52. of 
 Utrecht, 360. 
 
 Perels, F., his Seerecht der Gegen- 
 wart, 300. 
 
 Peronne, Convention of, Sept. 1 4, 1 64 1 , 
 28. 
 
 Perseus, King, 386. 
 
 Personal Suite of an Ambassador dis- 
 tinct from Official Suite, 568.. 
 
 Petrovioh, family of, Vladikas of Mon- 
 tenegro, 141. 
 
 Philip the Bold of France, 288. 
 
 Phillimore, Sir Robert, his treatise on 
 Domicil, 277. on Conventions of 
 Guaranty, 431;. 
 
 Piracy on the High Seas, 2 74. 
 
 Pirates justiciable everywhere, 291. 
 
 Pisa, Republic of, its treaty with Sul- 
 tan Saladin of Egypt in 11 73, 447. 
 
 Poglizza, Republic of, 43. 
 
 Poland, King of, entitled the Ortho- 
 dox King, 347. 
 
 Poland, Kingdom of, broken up, 18. 
 attached to the Kingdom of Saxony 
 in 1809, 38. 
 
 Pontes infra primes, 291. 
 
INDEX. 
 
 481 
 
 Porte, Ottoman, its adherence to the 
 
 first protocol of the Conferences of 
 
 London of 1 871, 468. 
 Portugal, the King of, entitled the 
 
 Most Faithful King, 347. her 
 
 supremacy over the Ligurian Sea, 
 
 321. her National Ensign, 322. 
 Portuguese Capitulations with the 
 
 Porte in 1883, 462. 
 Possession, legal, how acquired, 194, 
 
 204. 
 Possessiou of territory uninterrupted 
 
 for a certain time founds a good 
 
 title, 211. 
 Pouvoirs G^n^raux, 359. 
 Powers, General Full, actus ad omnes 
 
 populos, 369- 
 Pozzo di Borgo, Count, Kussian Envoy, 
 
 337- 
 Praetor Peregriuus, at Rome, 269. 
 Pragmatic Sanction of Charles II, 
 
 433- 
 Prescription preferred to TJsucaption 
 
 by Vattel, 212. 
 Prince Kegent, his note respecting the 
 
 Holy Alliance, 396. 
 Principalities, Danubian, Convention 
 
 of, Aug. 19, 1858, 137. 
 Private International Jurisprudence, 
 
 266. 
 Privateers disallowed by Treaty, 400. 
 Proculians and Sabinians, legal Schools 
 
 "at Rome, 467. 
 Protocol of Feb. 20, 1 830 as to Samos, 
 
 114. 
 Prussia, her Rhenish Provmces, 424. 
 
 her Capitulations with the Porte in 
 
 1761, 460. 
 Pruth, the River, 139, 239. 
 Puffendorf, his special merit, 5. iden- 
 tity of natural law of States with 
 
 that of individuals, 151. 
 Pyramids, Battle of the, July 21, 1798, 
 
 105. 
 
 Quarantine, British, Statute of, 26 
 Geo. II., later Statute of, 5 Geo. IV. 
 c. 78, 309. 
 
 Race, pale of the, amongst the Greeks, 
 
 383. 
 Railways in Egypt, 107. 
 Eakcoczy, Voievode of Transylvania, 
 
 131- 
 
 Ran9on, Antoine, French Ambassa- 
 dor to the Sultan Suleiman I, 463. 
 
 Raresoh, Prince of Moldavia, 130. 
 
 Ratification, provision as to, ex. majori 
 cautda, 361. of a treaty indispen- 
 sable according to Bynkershoek, 
 
 PART I. II 
 
 362. of a treaty may be refused, 
 
 439. instances of such refusal, 
 
 440. sometimes not to be waited 
 for, 440. 
 
 Rayneval, De, his Institutes of Law 
 of Nations, 175. 
 
 Redchid Pacha, author of the Hatti 
 Cherif of Gulkhanfe, 114. 
 
 Reddie, his Enquiries in International 
 Law, 165. 
 
 Renaudot, Eusebius, 447. 
 
 Renvoi, Droit de, 408. 
 
 Republichetta la, of Audorre, 46. *» 
 
 Residence, the foundation of Juris- 
 diction, 260. 
 
 Resident missions in accordance with 
 Comity, 351. 
 
 Residents distinct fi'om Envoys, not 
 furnished with Letters of Credence, 
 
 341- 
 Revenue, British Zone of four leagues, 
 
 309. American Zone of the same 
 
 distance, 310. 
 Rhine, subject to the Condominion of 
 
 four Electors of Germany, 252. 
 Rhine, the navigation of the, under 
 
 the Final Act of Congress of Vienna 
 
 of 1820, 245. under the Convention 
 
 of Mayence of 1831, 245. 
 Rhine, Confederation of the, July 
 
 12, 1806, 10, 31. guaranteed by 
 Prussia under Treaty of Tilsit, July 
 7, 1807, 20. 
 
 Rhodian Laws of the Sea, 286. 
 
 Riaz Pacha, no. 
 
 Right of Asylum in an Ambassador's 
 Hotel, 367. 
 
 Right of Coalition for self-defence 
 14, 186. of Condominion over the 
 Rhine, 252. of Emigration, 274. 
 of Exclusive Use, 234. of Fishery 
 in the Open Sea, 311. of Indemnity, 
 
 13. of Innocent Use, an imperfect 
 right, 423. qf Occupancy, of native 
 Indian, 220. of Property and Do- 
 main, 192. of Security, 13. of 
 Self-defence, 12. of Seft-preserva- 
 tion entails the right of possessing, 
 191. of Territorial Inviolability, 
 184. of Way across the territory 
 of a Nation, 423. 
 
 Rights of Nations, perfect and imper- 
 fect, 12. primary and secondary, 
 178. 
 
 River, discovery of the mouth, gives 
 a right of occupancy of the whole 
 country drained by it, 203. 
 
 Rivers, territorial Empire over them, 
 232. great arterial, of Europe, 2^6. 
 
 Rivers, Navigation of, Congress of 
 
482 
 
 INDEX. 
 
 Vienna, 146. Treaty of Paris of 
 
 1856, 147. 
 Kocoabruna ceded to France, 30. 
 Kodenburg adopts Huber's three 
 
 classes of Statutes, 264. 
 Roe, Sir Thomas, 97. 
 Koman view of the Jus Gentium, 1 50. 
 Eooles or Jugemens d'OIeron, 159, 
 
 287. 
 Eoumania, State of, 138. declared 
 
 itself independent June 3, 1867, 
 
 recognised by Peace of San Stefano 
 
 in 1878, 139. 
 Koumelia, Eastern, administrative 
 
 autonomy under a Christian Vali, 
 
 118. 
 Eoumelia, Seraskier of, 452. 
 Eoyal Honours, States entitled to 
 
 them, 346. 
 Rush, Mr., Minister Plenipotentiary ia 
 
 London in 1824 for TJ. S., 207. 
 Eussian Capitulations with the Porte 
 
 of 1783, 461. 
 Eutherforth, his view of Treaties and 
 
 Conventions, 168. 
 Kycaut, Sir Paul, on the present State 
 
 of the Ottoman Empire, 464. 
 
 Safe Conduct of an Ambassador, 373. 
 Edict of States General, anno 1679, 
 
 374- 
 
 Saganlough, 122. 
 
 Said Pacha granted a Charter in 1856 
 for the Suez Canal, 107. laid down 
 railways to Cairo, 107. 
 
 Sa]a.din, Snltan of Egypt, 447. 
 
 Salisbury, Marquis of, his despatch 
 May 30, 1878, to Sir A. H, Layard, 
 123. his despatch of July 7 to M. 
 Waddington, French Minister of 
 Foreign Aflfairs, 124. 
 
 Salisbury, John of, 3. 
 
 Saltire, Eed, of Ireland, 323. 
 
 Salute of ships of war by merchant 
 vessels, 318. of fortresses and of 
 guardships by ships of war, 320. 
 
 Samos, a Sandjak of the Vilayet of the 
 Isles, 113. submitted to the Porte 
 in 1835, 113. its mercantile flag, 
 326. 
 
 Sancta corpora legatorum, 365. 
 
 Sancti habentur legati, 335. 
 
 Sardinia, Treaty of Subsidy with Great 
 Britain, 430. 
 
 Samen, the League of, in 1832, 65. 
 
 Sauli, della Colonia dei Genoresi in 
 GaJata, 451. 
 
 Savigny, on the Positive Law of Na- 
 tions, 161. on FoBSeasion, 192. 
 
 Scheldt, navigation of the river, 233. 
 
 Schmalz, Privy Councillor, 166. 
 
 Sea, Open, nullms territorium, 285. 
 customs of the, 290. laws, 287. 
 presumption against exclusive rights 
 over the, 296. prescriptive right to 
 parts of the, 295. 
 
 SeaLetter, or Certificate of Nation- 
 ality, 321. 
 
 Seals, three, of the British Foreign 
 Secretary of State, 355. 
 
 Selim, the last Independent Prince of 
 Algiers, 95. 
 
 Seliiu I, the first Ottoman Sultan of 
 Egypt, 105, 463. 
 
 Selim II, Sultan, his Treaty of 1566 
 with France, 455. 
 
 Semi-Sovereign States, the term intro- 
 duced by J. J. Moser, objected to 
 by Wheaton, 25. 
 
 Semonville, M., French Envoy, 337. 
 
 Senior Nassau, his definition of In- 
 ternational Law, 176. 
 
 Serenissima Eepiiblica, title of Venice 
 and of Genoa, 347. 
 
 Servia lost her independence in 1389, 
 126. recovered it in 1878, 129. 
 
 Servia, Principality of, declares war 
 against Turkey, June 22, 1876, 129. 
 
 Servitude of Public Law, 423. 
 
 Settlement of a Nation, 196. 
 
 Ship, Public, of a State, its uxterritorial 
 character, 272. 
 
 Sitvatorok, Peace of, 1-31. 
 
 Society, Natural, of Nations, 149. 
 
 Soleiman I, supports Barbarossa, 95. 
 the Magnificent, 130. 
 
 Somerset the Black, Judgment in the 
 Court of King's Bench in I772> 273. 
 
 Somme, La, or Mirroir des Justices, 
 297. 
 
 Sonderbund, the, in 1846, 66. 
 
 Sovereignty, personal as distinguished 
 from territorial, 260. 
 
 Soudan, trade of, passes through Sua- 
 kim, 108. 
 
 Soulhh, Arabic term for a truce with 
 Christians, 451, 465. 
 
 Sound Dues, formerly levied by Den- 
 mark, 305. acknowledged in nu- 
 merous treaties of thirteenth and 
 fourteenth centuries, 306. re- 
 deemed by the maritime nations 
 of Europe, 307. 
 
 Spain, New, ancient kingdom of, 10. 
 
 Spain, king of, entitled the Most 
 Catholic King, 347. 
 
 Spanish Capitulations with the Porte 
 in 1782, 460. 
 
 Spanish Succession, War of, 171. 
 
INDEX. 
 
 483 
 
 Spelman, Sir Henry, 288. 
 
 Spencer, Chief Justice, Penal Laws 
 do not operate beyond the State, 
 406. 
 
 Staaten-Bund, distinguished from 
 Bundestaat, 87. 
 
 Staaten-Reich, classification of the 
 new German Empire, 87. 
 
 Stade, County of, annexed to the Arch- 
 bishopric of Bremen, 253. 
 
 Stade or Brunshausen Toll, on the 
 River Elbe, 253. 
 
 Stade Toll, transferred to Hanover in 
 i7'9' 254. suppressed in 1861, 
 256. 
 
 Stary-Stamboul, embouchure of, 139. 
 
 State, definition of a, by Grotius, 4, 
 by Pufieudorf, 5. by Vattel, 6. 
 identity of a, in respect of real 
 Treaties, 21. 
 
 States, Protected under Treaties, and 
 Independent, 27. Protected and 
 Dependent in India, 27. Semi- 
 Sovereign, 28. how nationalised, 9. 
 
 States, Neyron's division of, into those 
 of the First Order and those of the 
 Second, 25. nationality of , merged 
 in a Federal Union, 23. union of. 
 Personal or Real, 48. 
 
 Statuta suo clauduntur territorio, 266. 
 
 Statute of 36 & 37 Vict, oh, 60 as to 
 Extradition, amending 33 & 34 Vict, 
 ch. 52, 416. 
 
 Statutes divided into personal, real, 
 
 and mixed, 263. 
 Stefano, San, Peace of, in 1878, 93, 
 
 120, 121, 139. 
 Stettin, Peace of, anno 157°. 52. 
 Story, Mr. Justice, his work on the 
 Conflict of Laws, 263. his division 
 of the Law of Nations, 150. mid- 
 channel of narrow straits of the sea, 
 298. as to the Comity of Nations 
 in matters of Foreign Law, 262. 
 his opinion that personal property 
 follows the Domicil, 280. 
 Stowell, Lord, his view of the Law of 
 Nations, 159. in relation to the 
 Mahommedanworld,i62. hisview 
 of the International Status of Ma- 
 hommedan Powers, 89. his judg- 
 ment as to islands at the mouth 
 of the Mississippi, 215. 
 Straits of the Sea, 294. midchannel 
 divides the jurisdiction over narrow, 
 
 300- 
 Suakim, Kaimakamate of, granted to 
 
 Ismail Pacha, loS. 
 Subject of a State, may be refused as 
 
 a Foreign Minister, 339. 
 
 Subsidy, Convention of, supplementary 
 
 to a Military Convention, 436. 
 
 Treaties of, 428. 
 Sub Spe Rati, acceptance of overtures, 
 
 361. 
 Suez Canal, Firman granted in 1856, 
 
 107. 
 Suite, official, of an Ambassador, 368. 
 Suleyman, his letter to Francis I of 
 
 France, Sept. 1528, 331. 
 Sulina branch of the Danube, 239. 
 Suum cuique, principle of, 153. 
 Sweden, Union with Norway in 18 15, 
 
 63.. 
 Swedish Capitulations with the Porte 
 
 ™ ; 737. 460- 
 
 Swedish Revenue Zone disapproved 
 by Lord Stowell, 310. A' 
 
 SwissConfederationof 1648, 63. Act 
 of Mediation imposed by First Con- 
 sul Napoleon in 1803, 63. 
 
 Swiss Cantons, now prohibited to 
 supply troops for hire to foreign 
 nations, 429. 
 
 Swiss vessels on the Italian lakes, 329, 
 
 Switzerland, its neutrality, 43 7. its 
 present Constitution of May 29, 
 1874, 66. has adhered to the De- 
 claration of Paris of 1856, 330. 
 decision of National Council as to 
 a Maritime Flag, 330. 
 
 Syrp, Vilayet of, identical with Servia, 
 94. 
 
 Tanzimat of Gulkhanfe, 109. 
 
 T^daret Eflfectif, 112. 
 
 Tenterden, Lord, his judgment in De 
 la Vega v. Viana, 279. 
 
 Terrae intra fauces, 293. 
 
 Territorial inviolability, right of, 1 84. 
 
 Territorial Seas, 294. 
 
 Territory of a Nation, 228. 
 
 Territory, Maritime, of a Nation, 393. 
 
 Testa, Baron J. de, Becueil des Trait^s 
 de la Porte Ottoraane, 331. his 
 criticism on the Capitulations, 468. 
 
 Tewfik Pacha, substituted for Ismail 
 Pacha as Khedive of Egypt in 1879, 
 III. 
 
 Texas, admission into the Federal 
 Union by resolution of Congress, 
 19. received into the Union of 
 North American States in 1844, 
 
 59- 
 
 Thalweg of a River, boundary between 
 opposite Riverain States, 2j6, 24.9, 
 
 Thomasiue, Christian, criteria of occu- 
 pation, 200. 
 
 Title by Conquest, 222. 
 
 I 1 3 
 
484 
 
 INDEX. 
 
 Titles of Courteey of Great Eepublios 
 
 and Confederations, 347. 
 Titles of a religious character conferred 
 
 by the Pope on the kings of Europe, 
 
 347- 
 
 Toll, maritime, in respect of light- 
 houseB, 304. 
 
 Tougra of the Padichah, or Tugra, 
 104, 45T. 
 
 Toultcha, Sandjak of, ceded by Russia 
 to Koumania, 139. 
 
 Towers, Seven, formerly a prison for 
 Foreign Ambassadors at Constanti- 
 nople, 367. abolished in 1827, 
 
 367- 
 
 Treaties, Chinese, with Europeans, 
 
 266. Japanese, with Europeans, 
 
 267. Ottoman, expired on death of 
 each Sultan, 452. between Erance 
 and the Ottoman Porte betweeni535 
 and 1740, 389. of TJtrecht, anno 
 1 71 3, as to balance of Power, 187. 
 between England and Denmark 
 (anno 1400 and anno 1523) as to 
 the North Sea Fisheries, 301. their 
 relation to the general Law of 
 Nations, 164. favourable or odious 
 provisions of, 390. personal and 
 real, 21. put an end to by subse- 
 quent war, 420, 440. custom to 
 renew them after a war, 441 . creat- 
 ing a Servitude of Public Law, 424, 
 of Extradition, 402. of Guaranty, 
 431. of Navigation an d Commerce, 
 origin of, 399. of Neutrality, 437. 
 of Armed Neutrality, 438. of Sub- 
 sidy, 428. of Unequal Alliance, 
 426. of Protection, Roman notion 
 of them, 42 7. of Boundary not ter- 
 minated by a war, 421. of cession 
 or of boundary, 226. of Cession, 
 when operative, 439. 
 
 Treaty- Law, alone binding on Ma- 
 hommedan States, 89. 
 
 Treaty of Guaranty distinguishable 
 from a Treaty of Alliance, 435. 
 
 Treaty, for suppression of Slave Trade 
 in 1841, not ratified by France, 440. 
 of 1830, between United States and 
 the Porte, disputed text of it, 456. 
 between Great Britain and Hesse- 
 Darmstadt (Oct. 5, 1793), 429. as 
 to Consular Jurisdiction, between 
 England and China (July 29, 1843), 
 404. Ibid., between England and 
 japan (Aug. 20,1858), 404. be- 
 tween France and the United States 
 of America as to Consular Jurisdic- 
 tion over vessels and their crews 
 (Feb. 23, 1853), 405. with China 
 
 (July 22, 1843), 266. with Japan 
 (Aug. 2 6, 1 8 6 8 ), 2 6 7 . with Portugal 
 (anno i654),as to Judge-Conservator 
 ofthe British Nation, 268. of 1740, 
 between France and the Porte, 467. 
 between Holland and the King of 
 Candy (Feb. 14, 1766), 401. of 
 St. Petersburg (Jan. 11, 1857) as 
 to special powers of Consuls, be- 
 tween France and Russia, 403. of 
 Washington, or Ashburton Treaty, 
 between Great Britain and the 
 United States (Aug. 9, 1842), as to 
 Extradition of Anderson, 412. be- 
 tween Great Britain and the United 
 States of America (Nov. 19, 1794), 
 419, 437. between Nicaragua and 
 Great Britain, of 1859, 44°- "f 
 Utrecht, renewed after every war, 
 441. of Zurich (Nov. 10, 1859), 
 modified confirmation of previous 
 Treaties, 441. of Paris (March 30, 
 1856), provision as to renewal of 
 previous Treaties of Commerce, 441, 
 Dutch, with the Porte in 161 2, 459. 
 of Adrianople (Sept. 14, 1829), 
 127, 133, 239. of Amiens (1803), 
 34. of Aix-la-Chapelle (anno 1 748), 
 180. of Argovie (Sept. 17, 1808), 
 250. of Barrier (Jan. 30, 1713), 436. 
 of Berlin (June 8, 1825). as to Kni- 
 phausen, 31, 32. of Berlin (July 20, 
 i853),astothe Jahde, 32. ofBerlin, 
 (July 13, 1878), 116, 129, 244, 324. 
 ofBucharest(May28, 1812), 133. of 
 Campo Formio (Oct. 17, 1797), 30. 
 of Carlovitz (anno 1699), 132, 141. 
 ofCasr-Said(Mayi2,i88i),ioi,io2, 
 of Constantinople (March 21, 1800), 
 33. of Constantinople (March 12, 
 1854), between France and Great 
 Britain on the one hand, and the Ot- 
 toman Porte on the other, 189. of 
 Gastein (Aug. 14, 1865), 50. of 
 Ghent, in 1814, 235. of Gottorp 
 (June 26, 1715), 434. of Hanover 
 (June 2 2,1 86i),forsuppression ofthe 
 Stade Toll, 256. of Houmon-Schai 
 (Oct. 8, 1843), 401. of Kanlidja 
 (May 27, 1855), 462. ofKiel(Jan. 
 
 14, 1814), 52. of Kutschuk-Kain- 
 ardji (July 10, 1774), 132, 352, 461. 
 of London (May 7, 1832), 437. of 
 London (April 19, 1839), respecting 
 Luxemburg,77,82. ofLondon(July 
 
 15, 1840), as to Egypt, 104, 106. 
 of London (July 3, 1842), 403. .of 
 London (Feb. 13, 1843), for the ex- 
 tradition of fugitives from justice, 
 414. of London (July 13, 1841), as 
 
INDEX. 
 
 485 
 
 to the Dardanelles, 303. of London 
 (March 13, 1871), as to closure of 
 the Straits, 309. of London (May 8, 
 1852), as to the German Duchies of 
 the King of Denmark, 189. of Lon- 
 don (May 28, 1852), between France 
 and England Jbr extradition of 
 criminals not ratified by the British 
 Parliament, 416. of London (March 
 10, 1883), as to the Danube, 246. 
 of London (Nov. 14, 1863), as to the 
 Ionian Islands, 37. of Luneville 
 (Feb. 9, 1801), 30, 181. of Mar- 
 seilles (March 24, 1619), 96. Me- 
 thuen (Deo. 27, 1703), 401. of 
 Oliva (anno 1660), 187. of Osna- 
 bruck (Oct. 24, 1648), 238. of 
 Paris (Aug. 15, 1761), known as the 
 Family Compact, 397. of Paris 
 (anno 1763), 180. of Paris (Feb. 6, 
 1778), 10, 20. of Paris (Sept. 17, 
 1783), 235. ofSanLorenooelEeal 
 (anno 1795), 235. of Paris (May 
 30, 1814), 29, 35, 72. of Paris (Nov. 
 20, 1814), 29. of Paris (March 30, 
 1856), 94, 125, 128, 341, 466. of 
 Paris (Feb. 2, i86l), 30. of Pas- 
 sarowitz (anno 1718), 141, 340. of 
 Peronne (Sept. 14, 1641), 28. of 
 Prague (Aug. 23, 1866), 50, 83. 
 of Presburg (Dec. 26, 1805), 31. 
 of San Stefano (March 3, 1878), 93, 
 129. of St. Germain en Lay (March 
 
 29, 1670), 238. of St. Petersburg 
 (Jan. 29, 1834), 134. of Sistova 
 (Aug. 4, 179:), 126, 141. of Spires, 
 (anno 1544), as to the Sound Dues, 
 306. of Stockholm (anno 1720), 
 435. of Tilsit (July 7, 1807), 20, 
 34, 427. of Turin (Nov. 7, 1817), 
 29, 428. of Turin (March 34, i86o), 
 
 30. of Utrecht (anno 1713), 180, 
 433. of Versailles (Sept. 3, 1783), 
 10. of Vienna (March 16, 1731), 
 301. of Vienna (March 10, 1734), 
 425. of Vienna (Oct. 14, 1809), 38. 
 of Vienna (May 3, 1815), 38, 82. 
 of Vienna (Oct. 30, 1864), 50. of 
 Warsaw (Sept. 18, 1773), 238. of 
 Washington (June a, 1854), 234- 
 of Westphalia (anno 1 713), 9, 11. 
 between Chili and the United States 
 of America (May 16, 1832), 401. 
 between China and CJnited States 
 of America (July 3, 1844), 405. 
 between the United States and Chili 
 as to foreign merchants (May 16, 
 1832), 401. 
 
 Trebizonde, 122. 
 
 Tripoli under a Beylerbey, 96. 
 
 Tripoli a Vilayet of the Ottoman Em- 
 pire, 95. 
 
 Tunis under the dynasty of Beni- 
 Hafas, 95. Regency under Mo- 
 hammed Sadyk Bey, his Convention 
 with Great Britain in 1874, 100. 
 
 Tunis, Protocol of Constantinople (Feb. 
 24, 1873), 100. Treaty of Casr-Said 
 (May 12, i88j), ioi. under a 
 French Protectorate, 102. under 
 Sidi Ali (Oct. -28, 1882), 103. 
 
 Turkey Company incorporated in 1 5 8 1 , 
 
 457- 
 
 Twiss, Oregon Question, 441. on the 
 relations of the Duchies of Sohleswig 
 and Holstein to the Crown of Den- 
 mark, 435. 
 
 Tyrian merchants in Egypt, 444. 
 
 Tzemoievich, family of, rulers of Mon- 
 tenegro, 140. 
 
 Tzetenie, capital of Montenegro, 141. 
 
 Union of States, Personal or .Real, 48. 
 Union, Federal, varieties of, 55. 
 Union, personal, of States, its true 
 
 character, 54. 
 Union Flag, when adopted for British 
 
 Ships, 323. 
 United States of America, its treaties 
 
 with the Porte, 463. 
 United States' Constitution of 1787 as 
 
 to Fugitive Slaves, 409. 
 Use, innocent, of territorial waters, 
 
 295- 
 Usuoaption, Wolff s definition of it, 
 212, 
 
 Valais, Republic of the, 10, iS. 
 
 Vattel, his definition of the Law of 
 Nations, 6. his theory of the Jus 
 Voluntarium, 148. his conception 
 of the Judge of the Place, 270. his 
 view of the territorial title of 
 Savages, 221. justifies the right of 
 Emigration, 274. 
 
 Venetians, their Treaties with the 
 Greek Empire, 450. their Treaty 
 of 1454 with the Porte, 451. 
 
 Venice, her supremacy over the 
 Adriatic Sea, 331. 
 
 Vilayets of the Ottoman Empire, in- 
 troduced by Sultan Mahmoud II, 
 93. existing organisation of, es- 
 tablished by Sultan Abdul Medjid, 
 93. of Trebizonde, Erzeroum, and 
 Van, ceded to Russia in 1878, 93. 
 
 Visigoths in Spain, 448. 
 
 Vladika of Montenegro, 140. 
 
486 
 
 INDEX. 
 
 Waal River, 245. 
 
 War of the Spanish Succession, 171. 
 
 War of Great Britain against France 
 and Spain in 1755, 209. 
 
 Washington, Mr. Justice, 422. 
 
 Waters, Jurisdictional, 293. of a 
 neutral nation are inviolable, 303. 
 
 Westphalia, Treaty of: see Treaty. 
 Peace of, 24. 
 
 Wheaton, his objection to Vattel's 
 division of the Law of Nations, 150. 
 his view of Treaties and Conven- 
 tions, 168. his views on Contraband 
 of War modified in the sixth edition 
 of his Elements, 173. his view of 
 the international status of the Ma- 
 hommedan world, 90. 
 
 Wheaton's Interpretation of the Con- 
 vention of 180T, 171. 
 
 Wioquefort, imprisoned by the Dutch 
 for life, though the Kesident of the 
 Duke of Luneburg, 341. 
 
 Winchelsea, Earl of, 97, 99. 
 
 Wirt, Mr;, Attorney General of the 
 United States of America, his 
 opinion as to the surrender of 
 
 fugitives from justice (Nov. 30, 
 1821), 412. 
 
 Wisby, merchants of, 449. 
 
 Wisby Water-Eeoht, 287. 
 
 Wlad, the last independent Prince 
 of Walachia, 130. 
 
 Wolff, Von, Christiap, his definition of 
 the Law of Nations, 5. his theory 
 of the Jus Voluntarium, as distin- 
 guished irom Customary Law, 147. 
 his theory of a Civitas Maxima, 
 148. 
 
 Wyborg, Tolls on the Great Belt, 
 3°?- 
 
 Yacht, Eoyal Squadron entitled to use 
 the White Ensign, 323. 
 
 Zapolya, Jean, 130. 
 
 Zephyrinus, the Patriarch of Jeru- 
 salem, 465. 
 
 Zone, territorial, of the high seas, 
 291. 
 
 Zouch, Dr. Richard, his treatise on 
 Fetial Law, 157. 
 
 THE END. 
 
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 Tyrwhitt{R. St. J., M.A.). A Handbook of Pictorial Art. 
 With coloured Illustrations, Photographs, and a chapter on Perspective by 
 A. Macdonald. Second Edition. 1875. 8vo. half morocco, i8j-. 
 
 Vaux ( W. S. W; M.A., F.R.S.). Catalogue of the Castellani 
 
 Collection of Antiquities in the University Galleries, Oxford. Crown 8vo. 
 stiff cover, \s. 
 
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