FIRST PLATFORM OF INTERNATIONAL LAW BY SIR EDWARD CREASY, M. A„ CORNELL UNIVERSITY LIBRARY FROM Cornell University Library JX 2514.FS 1876 First platform of International law. 3 1924 007 463 668 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007463668 FIKST PLATFORM OP INTERNATIONAL LAW. FIEST PLATFOEM OP INTERNATIONAL LAW. BY SIR EDWAUD Sr'OREASY, M.A., PB0PE9S0K OF JUKI3PRUDEN0E IN THE HON. THE POUB INNS OF COURT ; LATE OIIIEF-jnSTICE OF CEYLON ; EMERITUS PROFESSOR OP HISTORY IN UNIVERSITY COLLEGE, LONDON; SOMETIME FELLOW OF KING's COLLEGE, CAMBRIDGE. LONDON : JOHN VAN VOOKST, PATERNOSTEE ROW. MDCCCLXXVI. [All rights reserved.] (^.S44^'^4r f^. XL^PZ PRINTED BT TAYLOR AND FRANCIS, KBD LION COURT, PIKET STREET. EESPECTFULLY AND GRATEFULLY DEDICATED THE AUTHOR THE BIGHT HONOURABLE THE EAEL OF CAKNAEVON, HER MAJESTY'S PRINCIPAL SECRETARY OF STATE FOE THE COLONIAI/ DEPARTMENT, &c. PREFACE. I BELIEVE that the title of this book accurately repre- sents its design. It does not profess to be such a full and elaborate treatise on International Law, that the reader who has become familiar with its contents may consider himself master of the subject; but, on the other hand, I hope that it is something more than a mere preliminary sketch to be discarded by the advanced student. It is meant to supply a sound foundation and a duly arranged framework, to which much must be added from further materials and other architects, but which will facilitate the acquisition, the orderly grouping, the perception, the retention, and the right employment of continually increasing stores of knowledge. Above all, I earnestly hope that it will serve to teach principles. I follow President Woolsey in writing for all " who are cultivating themselves by the study of historical and political science," and who by that study are qualifying themselves to do their duty as members of a Pree State which is itself a member of the great Commonwealth of Nations. " The actual law should be continually compared with the standard of Justice," and "brought into connexion with the advances of humanity and civilization." viii PEEFACE. This development of International Law in unison with the moral and intellectual advancement of man- kind adds interest and dignity to the science ; but it also imposes difficulty. A generous innovation on long- established usage, a high-handed rejection of cramping formalities may seem to be inspired by the eternal laws of justice and humanity ; and yet the change, if not well timed and skilfully worked out, may create excessive injury and confusion. Most true is the remark of the ancient poet in his eulogy on the jurisprudence of the ^ginetans, when their island was frequented by men of many nations, that " It is a difficult thing to dispense upright and accurate law, not unseasonably, on matters manifold in kind, and prone to many bearings :" — 'O Ti yap TToXv, Kai nsWa peirei, OpOa SiaKpivecv (^pevi, fxrj irapa Kaipov, AvuiraXec. Find. 01. VIII. 23. It is here that we may prove the value of the rules of Utilitarianism, as now understood, not only in testing the essential justice of measures, but also in determining whether " Convenience and the Reason of the thing " favour their present adoption. There is no country in which these matters ought to be more studied than in England ; for there is no country which can do more than England can now do and must do to influence the currents of International Law in many of its most important branches. E. S. CREASY. The AiHENiEUM Clttb, October 20, 1876. CONTENTS. Page CHAPTEE I. Dbpinttions. DrsiiNCTiosr between Monit Law and Positive Law. Definition of International Law. — Why term preferable to old term " Law of Nations." — Of Sovereign States. — Meaning of the word " Law." — Moral sense of word ; forensic sense. — What is meant by " Moral Law ; " what by " Positive Law." — Moral Law corresponds with St. Paul's Law of the Gentiles. — The Jus Naturale of the Stoics and Eoman Jurists. — The Jus Naturale of Grotius. — Natural and Legal Obligations.— Mean- ing of phrase " Law of Imperfect Obligation." — Moral Eights and Legal Eights. — Lieita not always Honesta. — Jus and Lex. — St. Thomas Aquinas's, Savigny's, and Lord Bacon's ex- planations of these words. — Expletory and Attributive Justice . 1 CHAPTEE II. On Moeal Inteenaiional Law. Moral Law an integral part of International Law. — A State is a "Tiloral Agent. — Universality of this Law. — Jural Moral Prin- ciples. — Utilitarian Principle : its value as a test of Eeasoned Truth. — Montesquieu's Eule. — Its Pacific Branch. — Comity of Nations. — Close Connexion between Moral and Positive Inter- national Law. — Vattel's Exposition of Montesquieu. — The Three Ulpianic Pra3cepts. — Bowyer's and Savigny's Comments on them. — " Pactum Serva : " importance of this Eule as to Treaties. — Senior's Demonstration of its Utility. — Eecent Proofs of this. — Extent of this Maxim's Applicability. — Maxim that " A Wrong to one State is a Wrong to all, which aU should join in redressing" ^^ b CONTENTS. CHAPTER III. On Utilitaeianism as a Test ov Interhational Law. Page Utilitarianism the best test of Reasoned Truth. — Nature of the modem Utilitarianism of Mill, Grote, and Austin. — Such Utilitarianism coextensive with the Honestwm. — Justice and Conscience recognized by it. — The Intuitive School requires some external arguable standard for testing each man's self- sprung ideas. — Danger otherwise of the Protagorean heresy " Homo MeTisura." — The true Utile matter of argument. — Recognized as characteristic of the Honestum in International Law by Burlamaqui, Vattel, and Story. — Acts to be regarded as instances of Rules. — Utilitarianism proves the benefit of the existence of International Law, and guards against hasty changes 49 CHAPTER IV. On Intebnational Positive Law. Characteristics of Positive Law. — Definition. — Lord Bacon's Defi- nition. — "Sanction" explained. — The Sanction of Interna- tional Law is "War. — Positive Law may fall short of or extend beyond Moral Law. — Proper Jural meaning of the epithet '' Positive." — Objections to the reality of International Positive Law stated and answered. — Advice as to mastering Definitions. 65 CHAPTER V. On CoNStTETtTDnfART International Positive Law, and its Proofs and Afthoeities as Positive Law. True Consuetudinary Law, how to be ascertained.— Writings of Great Publicists, their value, names of principal.— Decisions of Prize Courts and other International tribunals.— Boards of Arbitration.— The Roman Law.— Modern International Law mainly built up out of Roman.— Treaties, Manifestoes, Ordi- nances, Proclamations, &o.— Value of Treaties as indirect evidence.— Need of study of History, especially Modern History. —Histories of International Law.— Discrepancies of Publicists' CONTENTS. xi Page opinions, and of other authorities. — New cases. — Need of ge- neral principles. — Value here of Moral International Law. — Special advantage of Utilitarian Principle 77 CHAPTEE VI. What constittjies a State ? Independence — what kind and amount of is necessary, — Case of native Indian Princes. — Organization necessary. — Particular form of it immaterial. — Changes immaterial. — Temporary anar- chy. — Numbers. — Territoriality. — Equality of States. — Leading Powers. — The Pentarchy. — The Monroe Doctrine. — Titles. — - Maritime Honours. — How far International Law applies to non-Christian ajid to imperfectly civilized communities ... 93 CHAPTEE VII. Further matters to be considered as to the Composition, the Sever- ance, and the Extinction of States. — States under one Chief Euler. — Personal Union. — England and Hanover. — Eeal Union. — Incorporate Union. — Federal Compacts. — Federal State-sys- tems, and Supreme States of Federals. — The United States. — Composite States : the British Empire. — How new Sovereign States may be formed. — Voluntary Emancipation by the Im- perial Power of part of a Composite State. — Forcible Dis- ruption. — Occupation of New Lands by Bands of Adventurers. — Conquest. — Voluntary joinder with other States. — Diminu- tion of Territory. — Complete Dismemberment. — Liabilities of an Agglomerate State 135 CHAPTEE Vni. Op Pekfect Eights op States. Definition of '• Perfect Eight " repeated. — Classification of "Eights." Main Eight the Eight of Self-preservation. — Eight to Secu- rity. — Eight to anticipate attack. — Eight to Indemnity. — Balance of Power. — Eights to Self-improvement; to protect Hpnour. — The National Flag. — Eights of component Parts of xii CONTENTS. Page State.— Duty of State to protect its Citizens.— States' Eesponsi- bility for their Acts.— Eight to Independence.— To exclusive Territorial Jurisdiction: Exceptions, Foreign Sovereigns, Am- bassadors.— Eights as to Foreign Ships in Territorial Waters, Distinctions as to Private Vessels and Men-of- War .—Peculiar Doctrines of French Courts as to Private Ships.— Nature and Origin of War-Ship's rights as to Exterritoria.lity.— Discussions at the Geneva Arbitration.— Privilege does not extend to Crews on Shore.— Perfect Eight of a State, though it may be against Comity, to exclude Foreigners and to control Commerce. — Eights of Property.— Eights as to Eivers, as to Enclosed Seas and Open Seas.— Modes of Acquisition, Alienation, and Loss. — Domain. — Dominium Eminens. — Eights by Discovery .... 147 CHAPTEE IX. Os THE CoNlXICT OF InTBENATIONAL EiGHTS. Conflicts as to Security and Independence caused by inequalities of Strength. — Doctrine of "Balance of Power." — Opinions of Martens, of Vattel. — Cases of menacing Union. — As to dan- gerously strong States of guardedly inoffensive demeanour. — Of precautionary measures short of War. — As to Leagues for self-protection. — Opinions of Nassau Senior, of Phillimore. — The Spanish Partition Treaties. — Macaulay's defence of them. — Interventions in another State's internal affairs .-^Inter- vention to put down Eevolution. — Wheaton, Phillimore, Nassau Senior, Chateaubriand, Martens referred to. — The Holy Alli- ance. — Bluntschli's observations. — Principles avowed by En- glish Statesmen, by Lord Castlereagh and the Duke of Wellington. — Opinion of Count Mamiani. — Lawfulness of Intervention to repress Intervention. — Of Intervention in behalf of oppressed subjects. — Grotius, Vattel, Mackintosh, Mamiani referred to. — Eeview and summary of general principles. — As to Treaties which pledge a State to Intervene. — Their invalidity. — Other cases of Conflict of Eights. — Claims of a State to satisfaction for wrongs done to its members while commorant abroad. — Lord Selborne on the general principle. — General rule is to seek redress from the local tribunals. — Exceptional cases. — English State-Paper of 1753. — Liability of State for international offences committed by those within CONTENTS. xiii its territories. — The charge may be that it neglects to provide *^° itself with proper laws, or that it does not properly enforce its laws. — Difference made by the presence or absence of Bolus. — Meanings of Culpa. — "What negligence is actionable. — Light to be gained from the Geneva Arbitration. — Differences of opinion among the Arbitrators. — Serious trenching on right to Inde- pendence when one State is called on by another to alter its laws. — The Orsini ferment in England. — Limited responsibility of State for its legal system. — Mere amount of damage cannot make conduct actionable. — Damnum sine Injuria. — The Defence of Necessity. — Conflict of rights as to Allegiance 278 CHAPTER X. Op Wae, and geneuallt ov the Obligations and Rights ARISING OUT of WaePAKE. Definition of "War," of " Belligerents." — Lawfulness of War. — Reference to Mackintosh ; to the Solonian Maxim. — Prin- ciples of Conduct of War. — Montesquieu's Maxim. — Belligerent States' " true interest.'' — Justifiable Injuries to an Enemy must be such only as promote that Interest directly and sub- stantially. — Importance of Test of Directness and Substanti- ality. — Jural Limitations as to Operatives, Operations, Instru-^ ments, and Objects in Warfare. — Harshness of Old Theories. — Growth of Secondary Laws of War. — Warfare not regarded by the Romans as a State of Lawless Violence. — War described by their Jurists as an Institution of Law. — Roman Laws of War. — Their Severity. — Milder Rules introduced. — Fallacy of certain extreme Opinions. — War is not licensed universal Violence. — War is not a mere Duel between Governments. — The Individuals who make up States must be affected by War. — Insidious Eallacies of Portalis and Talleyrand. — Question tried on Utilitarian Principles. — True Theory as to Con- dition and Rights of War. — Pacific Means of obtaining redress to be tried before resort to War. — Mediation. — Arbitration. — Schemes of Universal Arbitration. — Of Imperfect War. — Reprisals, Retorsions. — ^As to Declarations of War and Mani- festoes. — Rights of Alliance 360 xiv CONTENTS. CHAPTEE XI. On Eights and Duties between the Belligeeenis. Page Eecapitulation of Primary strict Laws of War, and of Secondary milder Laws of War. — Extent of the Influence of the latter. — Question considered of how far the old strict Eules have be- come dormant, and how far they have become extinct among civilized Nations. — Question considered of What, if any, is the Sanction of the Secondary milder Laws? — Eemarks on recent Eussian and English State Papers on the subject. — Duke of Wellington's Despatches in 1828. — The Solonian Maxim ap- plicable. — Modern Laws of War as between combatant regular Forces. — Eight to Quarter. — Cases of supposed useless Ee- sistance by Garrisons. — Lawful Treatment of Prisoners of War, and of Enemy's Sick and Wounded. — Hospitals, Asy- lums, &c. — Means and Implements of War. — Use of poisoned Weapons, or of unnecessarily cruel Weapons. — Of poisoning Wells or Food. — Of cutting off Supplies. — Of Assassination. — Of use of Spies and Traitors. — Of Eeprisals. — Who are to be regarded as Non-combatants? — How are they to be treated? Eights and supposed Eights as to Private Property. — Of Ee- quisitions and of Confiscations. — Of devastating Territories, and removing Inhabitants. — Of sacking Towns taken by Storm. — Of governing Hostile Provinces while under tempo- rary Occupation. — Of Insurgent Inhabitants, and Levies eii masse. — Of Privateering. — Of Capture and Condemnation of Vessels and Cargoes.^ — Of Suspension of Arms, of Truces, Armi- stices, Passports, Safe-conduct, and Cartels. — Of Belligerency when one Party is not a recognized Sovereign State .... 412 CHAPTEE XII. Eights and Liabilities aeising out of a State op Waepabe with EEGABD to NeITIRAIS. This branch of Law chiefly of Modern Development. — The name formerly unknown : Grotius, Bynkershoek, and Vattel referred to. — Great service to International Law done by the early Eulers of the United States. — Jeflferson's Exposition of true Status and Duties of a Neutral. — Kinds of Neutrahty. — Natural or Normal Neutrality. — Conventional Neutrality. — Political CONTENTS. XV Condition of Conventionally Neutralized States. — Qualified Neutrality unreal. The real Condition is that of Alliance. — Assistance rendered under it is Hostility towards the other Belligerent, though he may, in his discretion, overlook it. — Attempts to establish " Friendly Neutrality." — Such a Condition is a mere deception. — " Conventional Neutrality " is the only exceptional Neutrality. — Definition of Natural NeutraUty. — Determination of Stand-point whence its Eights and Duties are to be regarded. — Views of Belligerent. — Views of the Neutral. — Neutral Stand-point the true one. — Inviolabilitj- of Neutral Territory and Territorial Waters. — Eules restrictive of Conduct of Belligerents within such localities. — Eegulations as to admission of Privateers and Prizes, and as to supplies of Coal. — Grant of Asylum. — Unlawful to levy forces in Neutral Territory, or to march Troops across it. — Difference between State-Acts of Neutrals, and private Acts. — Contraband. — Blockade. — Enemy-goods in Neutral Ships : Neutral Goods in Enemy-ships. — Declaration of 1856. — Visitation and Search. — Recognition of Belligerent Eights. — Eecognition of Inde- pendence 570 EPILEGOMENA. No. I. On the Privileges of Public Ships in Foreign Ports, and on sheltering Fugitive Slaves 683 No. II. Lord Palmerston on International Arbitration 698 FIRST PLATFOEM INTEENATIOML LAW. CHAPTER I. Definitions. Distinction between Mobal Law and Positive Law. Definition of International Law. — Why term preferable to old term " Law of Nations." — Of Sovereign States. — Meaning of the word "Law." — Moral sense of word; forensic sense. — What is meant by " Moral Law ; " what by " Positive Law." — Moral Law corresponds with St. Paul's Law of the Gentiles. — The Jus Naturale of the Stoics and Eoman Jurists. — The Jus Naturale of Grotius. — Natural and Legal Obliga- tions. — Meaning of phrase " Law of Imperfect Obligation." — Moral Eights and Legal Eights. — Licita not always Honesta. — JiAS and Lex. — St. Thomas Aquinas's, Savigny's, and Lord Bacon's explanations of these words. — Expletory and Attributive Justice. 1 . International Law is the System of Moral Prin- General de- ciples and Positive Rules by wliich the conduct of ^SSernationai States, one towards another, is, or ought to be, determined *- * The following definition French text of his treatise : — is given by Wheaton in the "Le Droit International, tel B Law." 2 FIEST PLATEOEM Need of fur- 2. Besidcs giving this general description of our Clear Termin"-' subject, it is uscful at the Very outset of our work to peSfe for examine well the meaning of each of the two words Bomi reason- ^^ .^^ ^.^^^ _ ^^^ ^^ cousider Separately, first, the word " International," and, secondly, the word " Law." I enter on this task not out of any love for the laying down of Definitions, which is not only the most laborious of a writer's functions, but also the most perilous to his reputation*. I do so because distinctness of terminology is absolutely necessary for thinking distinctly, and for conveying distinct thoughts from one brain into another. It is useless, for in- stance, that two persons should try to reason together about " Law " and " Right," unless each person knows what is meant and understood by each when the words " Law " and " Right " are uttered. The qu'il est compris par les nations civilisees, est Tensemble des regies de conduite que laraison deduit, comme etant conformes a la justice, de la nature de la societe qui existe parmi les ■nations independantes, en y admittant toutefois les defini- tions ou modifications qui peu- vent §tre etabUes par I'usage et le consentement general." (Elements, tome i. p. 24.) Wheaton's own English version makes International Law con- sist of " those rules of conduct which reason deduces as con- sonant to justice from the na- ture of the society existing among independent nations ; with such definitions and modi- fications as may be established by general consent." President Woolsey (International Law, p. 366, ed. 1874) cites this, and remarks: — "This defini- tion removes the science from the nakedly positive ground, and gives full scope to com- parisons between the existing law and the standard of Jus- tice." * The Roman Jurist Javo- lenus, as cited in the Digest, Liber 50. Tit. xvii. par. 202, gives this salutary warning : — " Omnis definitio injure civili periculosa est ; parum est enim ut non subverti possit." OF IKTEENATIONAL LAW. 3 student of a new branch of Jurisprudence has no more right to complain because he is required to begin by mastering a dry array of definitions, than the student of a new language has to grumble at the dulness of its initiatory grammar. 3. I therefore now address myself to the consider- ation of the term " International Law ;" and I will take first the word " International." This word (for The word" in- the introduction of which we are indebted to Jeremy seif-expiana- Bentham*) has the great merit of announcing, not °^' indistinctly, its own character ; but still it is useful to point out what the peculiar merit of the word is, and why the phrase " International Law " is a much better phrase than the old term " Law of Nations," which Jurists before Bentham's time used to employ. 4. The old phrase "Law of Nations," like its Ambiguity of parent phrase the Jus Gentium of the Romans, "LawofNa-'^^ 1 ,1 . . n . 1 ■ -J. -J. /I tione"and has this mischievous ambiguity : it may mean (and jus Gentium. it is sometimes used with the intention that it should ju7inS^^^ mean) the laws, rights, and duties of Nations in their aCaeymay dealings with each other ; but it also may mean (and is ™^^^ frequently used with the intention that it shoidd mean) ^«"'^**^- those general rules of Justice, and those legal rights and duties generally, which have been recognized and adopted by all, or nearly all, civihzed nations. 5. These meanings are not alien one from another; These mean- „ „ , . . , ings not dis- but they are far from being commensurate one with eordant, but another. The first may be deemed to be included in the second ; but the second is much more ample and * See Bentham's ' Principles of Morals and Legislation,' chap. ■sis., sect. 25, note. B 2 4 F1E8T PLATPOEM The Jus inter Gentes i8 part of the tTtis commune Geniidtis, but it is a spe- cial part ; and the Jiis com- mune Genti- bus includes many other things. Superior pre- cision of the word " Inter- national." It is consonant with the defi- nition given (a) by Austin ; more complex than the first. A system of laws, rights, and duties affecting nations in their dealings with each other (Jus inter Gentes) has formed, and is part of, the great body of general rules of Justice, and of general legal rights and duties, which I have spoken of as having been recognized and adopted by all, or nearly all, civilized nations {Jus commune Gen- tibus). But this last-mentioned body of general rules, rights, and duties bears upon a man's conduct rela- tively to his fellow-men in matters which concern members of his own nation only, as well as in those which are connected with the relations between his nation and other nations. 6 A. Consequently, although it would not be utterly inaccurate to give to our subject the title of " Law of Nations"* (meaning thereby that it is part of the general law of Nations), it is much better to employ a term which not only denotes what we mean, but cannot possibly be supposed to include any thing else. This we do when we use the term " International Law"t. It is then apparent, ex vi termini, that the Law, of which we are speaking, is what Austin speaks of as " The Law obtaining between Nations ; the Law which is conversant about the conduct of Jndependent Political Societies, considered as entire communities: * It would, however, be in- accurate to call it " The Law of Nations." t It might be supposed, for reasons which wiE. appear when we distinguish between Nations and States, that the term "lu- ter-Statal Law" would have been better stiU. But its harshness would probably have prevented its becoming popular, as the term " International "' or INTEENATIONAL LAW. 5 circa negotia et causas gentium integrarum"* . Our topic is then self-limited to "Jus illud, quod inter (b) arotius; populos plures aut populorum rector es inter cedit" of Grotius f ; to '•'La Science du Droit, qui a lieu entre les nations ou etats, et des obligations, qui repondent a (c) Vattei. ce droit" of Vattei |. 6 B. We must inspect yet a little more minutely tlie second part of the word "International;" and we Further exa- must take care that we are not misled by the term term"inter- " Nation," when we apply ourselves to " the Law which Meln'ing of obtains among nations." Really and truly our busi- ^on." iiess is with the Law which obtains between Inde- single Nations pendent Political Communities. Now, an Indepen- statesT^anda dent Political Community does not always consist of aiway™he men of a single nation; neither is the whole of a NaHon"^'^ nation always comprised in the same Political Com- munity. The word "State" is the most convenient short term to employ, as conveying more expressly Convenience of and accurately than any other one word the idea of "State." the Independent Political Community, between which and the like of which International Law has its being and operation. Accordingly, nearly aU the chief recent writers on the subject have adopted this term§. It cannot indeed be truly asserted that the word " State " has no plurality of meanings || . But it has * See Austin's ' Jurispru- vagueness of the term " I^a- dence,' vol. i. p. 231. tion." t Prolegomena, sect. 1. || See a valuable note on X Preliminaires, sect. 3. them in Austin's ' Jurispru- § E.g. Kent, Story, Philli- dence,' vol. i. p. 249; and see more, Halleck, Lawrence (Com- Lawrence, ' Commentaire,' mentaire sur Wheaton, vol. i. vol. i. p. 161. p. 155), who all point out the 6 'FIRST PLATFOEM Meaning of _ One chicf meaning, which is well known and is com- Tthis'to^*?" monly used,~that of an " Independent Political Com- ^'^^' munity;" and it is always to be understood in that sense when used in this treatise, unless the context gives a clear warning that the word is specially em- ployed with a different import. "Interna- 7. It follows that the term "International Law" tional " to be -it 1, ' "U 1, understood as is to be uuderstood as meaning the Law wnicn ob- "Inter-Statal." tains between States. "State "means 8. Somc Writers on International Law add the If°^Sp"en- epithet " Sovereign" to the word " State " or " States." And the compound term " Sovereign State " has the advantage of at once giving a distinct monition that the denomination of " State " cannot be properly apphed (so far as regards purposes of International Law) to any community which is compulsorily and habitually dependent, as to its dealings with other States, on the will of any other community, or on the will of any person not included among its own mem- bers. Without, however, the constant prefix of the epithet " Sovereign," it may be generally understood that the States of which we speak are Independent States. Cautions as to 9. It is indeed well to take heed, when the epithet "Sovereign." " Sovereign " is used, that the word does not mislead us into fancying that any particular form of govern- ment is necessary to give to a community the charac- ter of a State for International purposes. There are two principles of International Law, which will be explained presently, but which may be usefully men- tioned in this place. The first is that it is necessary OP INTERNATIONAL LAW. that a Community shall, in order to be recognized as a State, have its own organized government. The second is that the form of such government is, in an International point of view, absolutely immaterial *. * Austin, vol. i. p. 249, says as to the word " Sovereign " : — " The term ' Sovereign,' or ' The Sovereign,' applies to a sovereign body as well as to a sovereign individual. ' II so- vrano ' and ' le souverain ' are used by Italian and French writers with this generic and commodious meaning. I say commodious ; for supreme go- vernment, abstractedfromform, is frequently a subject of dis- course. ' Die ObrigkffAi ' (the person or body over the com- munity) is also applied indif- ferently, by German writers, to a sovereign individual or a sovereign number ; though it not unfrequently signifies the aggregate of the political supe- riors, who, in capacities su- preme and subordinate govern the given society. But, though ' Sovereign ' is a generic name for sovereign individuals and bodies, it is not unfrequently used as if it were appropriate to the former; as if it were synonymous with ' monarch ' in the proper acceptation of the term. ' Sovereign,' as well as ' monarch,' is also often mis- applied to the foremost indi- vidual member of a so-called limited monarchy. Our own King, for example, is neither ' sovereign ' nor ' monarch : ' but, this notwithstanding, he hardly is mentioned oftener by his appropriate title of ' King,' than by those inappropriate and affected names." Wheaton (Elem. t. i. p. 31) divides State-sovereignty into internal and external sove- reignty, the latter alone coming within the purview of Interna- tional Law. " La souverainete est le pouvoir supreme qui re- git un ]fitat quelconque, soit monarchique, soit republioain, soit mixte. Ce pouvoir su- preme pent §tre exerce ou a I'interieur ou h, I'exterieur du territoire de I'Etat. " La souverainete interieure est ceUe qui appartient k la nation, ou celle qui a ete con- feree par eUe k son gouverne- ment d'apres leslois fondamen- tales de I'Etat. Cast I'objet de ce qu'on appelle ' le droit pub- lic interne,' ou plus propre- ment ' droit Constitutionnel.' " La souverainete exterieure est I'independance d'une societe politique h I'egard de toutes les autres societes politiques. Cast par I'exercice de cette souverainete qua les relations internationales d'une societe 8 FIRST PLATFOEM Hooker's de- scription ad- verted to. Meaning of IQ A. We have hitherto been considering the mean- its importance ing and the ideas properly connected with the word and many- • i • i Bidedness. " International. We have now to examine the ideas properly connected with the word " Law." There are few words in the English language of such manifold and grave significance as is syllabled in these three letters. 10 b. Our old Enghsh divine, Hooker, in a well- known passage in the first book of his ' Ecclesiastical Polity,' has eloquently and beautifully described the various meanings of the word " Law " *. To quote and discuss his description (which some late writers have rather hastily and petulantly censured) would occupy too much space in this volume. I prefer to take a definition from Hooker's great contemporary, Sir Walter Raleigh f. Remarking how diversely the Eaieigh cited, word " Law " is uscd, Raleigh says of it, that "if we consider it at large, it may be understood for any rule prescribing a necessary mean, order, and method for attaining an end. And the rules of grammar or of other arts are called laws. So all ordinances, whether good or evil, are called by the name of laws. The word ' Law ' is also taken for the moral habit of our mind, which doth (as it were) command our thoughts, words, and actions, framing and fashioning them according to itself, as to their passage and platform." But, he politique sont maintenues en paix et en guerre avec les autres societes politiques. Le droit, qui la regie, a ete appele droit public externe, ouplus pro- prement, droit international." * Ecclesiastical Polity, book i. sects. 1-8 inclusive. t History of the "World, part 1. book 2. ch. iv.' I have not transcribed the whole pas- sage. OP INTEENATIONAL LAW. 9 afterwards adds, " Law, commonly and properly, is taken for a right rule prescribing a necessary mean for the good of a Commonwealth or civil Community." In another section of the same chapter, Raleigh dis- courses of the Laws eternal almost as eloquently as Hooker ; and he gives an elaborate diagram (which is well worth consulting) of " those sorts of laws from whence all other particulars are drawn." 11. In addition to the meanings of the word other mean- "Law" which have been cited, the following also wlrd°"Law." are not unfrequent *. The rules set by private societies, whether firms, clubs, or of any other kind, for the guidance of their members and the ordering of their affairs, are commonly called the laws of the club, of the firm, or of the like. The rules of sports and games are frequently called their laws. Some writers draw attention also to the usage of the word with reference to the general uniformities of phenomena which we observe in Nature f. Such expressions as "the Law of gravitation," "the Laws of motion," "the Laws of arithmetic," and the like, are pointed out as the most violently metaphorical usages of the M'^ord "Law." We may at once disembarrass ourselves Meanings from any further consideration of the word when used TofurthM"'™ in these last-mentioned senses, and also in some ™'"'^' others, already mentioned, which have little or no practical bearing on our subject. We have no cause to consider here any of the laws imposed by the Divine Creator on any part of the creation, except * See Austin, Lecture 5. t See the Duke of Argyll's " Eeign of Law." 10 FIEST PLATFORM upon Man. Nor need reference be made to that part of the eternal Law, which Hooker supposes the Almighty to have set down with regard to Himself, for Himself to do all things by. It would also be superfluous to discuss those usages of the word by which it is made to denote a habit, or a tendency. And after having once noticed that it is often employed with reference to the regulations which men make for themselves in their minor associations for business or sport, we may waive further discussion as to that usage of the term. After these 12. Even with these limitations, the word "Law" general mean- as applied to Man, to his rights and duties, is a word " Law." that has been used in many senses ; but throughout these usages of the word there may be observed one The broad great Uuc of distinction. In one class of meanings, moral sense of _ ,, . i i , • « • i i the vford " Law compnscs general doctrmes oi right and wrong, and of man's general duties towards his Creator and towards his neighbour ; whereas in another class of meanings " Law " is narrowed The narrow towards the prccise sense of a definite imperative rule forensic sense. » t. •tit ^■,■ ^ ■ ■, , or conduct prescribed by a political superior, who has the power and the ¥'111 to enforce by practical means the observance of such rules. The difference is sub- stantial ; and though we may not care to discriminate between nice shades of similar ideas, or to refine upon the comparative anatomy of metaphors, it is right that, when we profess to discuss International Law, we should anticipate the question whether we use the word " Law " in its ampler or in its narrower but more determinate signification. We may shortly term OF INTEENATIONAL LAW. 11 Law in the ampler sense " Moral Law." In its stricter sense it is generally called " Positive Law," a term which will be explained presently. 13. A complete system of International Law com- prises Laws of both these classes*. There are Inter- national Moral Laws, and there are International Positive Laws. But the distinction between them is to be carefully observed and remembered. 14 a. Moral Law means a principle, a rule of Justice, vphat is meant a standard of conduct, which, if we observe it in Avr." questions between ourselves and others, will ensure for us the approval of our consciences, and respecting which we can demonstrate that its observance will promote the greatest possible happiness in reasonable degree of all who are affected by such observance. Our motive (independently of Religion) for obeying Moral Laws is our conscientious sense that it is our duty to do so. This sense of duty is blended with a reasoned belief that these Moral Laws are good in themselves, and that they worls general good, as already explained. We do not observe them formi- dine pcencB. We have at least no expectation that our breach or neglect of them will be followed by physical evil, inflicted on us by any human superior. * Mr. Nassau Senior, in Hs as applying to the last class of very valuable paper on " The laws only. But he considers Law of Nations," published in that both International Mo- the' Edinburgh Eeview' (April, rality and International Law 1843, no. clvi. vol. Ixxvii. p. are parts of the " Law of Na- 304), applies the term "Inter- tions " — the old inconvenient national Morality" to the first phrase, which he, almost alone class of these Laws ; and treats of recent writers on the subject, the phrase "International Law " persists in employing. 12 FIEST PLATFOEM When Moral Law becomes Positive Law. Moral Law corresponds ■with the law of the Gen- tiles, spoken of by St. Paul; A Rule of conduct having this last-mentioned incident (namely, a liability on the part of those who break it, to be physically punished by a human superior) would cease to be mere Moral Law, and would be Law of the class of "Positive" or "Instituted" Law, to the consideration of which class the greater part of this treatise will be devoted. 14 b. Moral Law is the same as that universal law, independently of revealed religion, which St. Paul speaks of, " written in the hearts of men," by which the Gentiles had the power of being " a law to them- selves " *. It is also equivalent to the Naturalis Ratio, ih.Q Lex NaturcB, and \heJusNaturale, as generally meant by the Stoic philosophers and the Roman Jurists f. * Epistle to the Romans, chap. ii. vv. 14 &15, and chap. i. V. 19. The great Jurist, Do- nellus, refers to these verses of this epistle, when, commenting on the passage of Gains, 1 Inst. 1 (embodied ia Justinian's In- stitutes, lib. 1. tit. 2. § 1, and in the Digest, lib. 1. tit. 1. § 9). " Quod Naturalis Ratio inter omnes homines constituit, id apud omnes peraeque custo- ditur, vooaturque Jus Gentium — quasi quo jure omnes gentes utantur." Donellus teaches that the Naturalis Ratio of which Gaius speaks, is the Law of God, written, as St. Paul says, in our hearts, and that this is evident from the mere fact that aU men bear witness to this law ; " for, when they offend against it themselves, their conscience accuses them, and they always condemn others so offending, and hold them to deserve punishment. It would indeed be absurd to say that, whereas the Creator gave us reason, and a sense of right and wrong requiring of us the performance of certain duties towards Himself and to our fellow men, yet we are unable to perceive those duties by the use of that reason." See Bow- yer's Commentaries on Public Law, p. 32. t See Donellus, as cited in the last note. According to the Stoics, Man is bound to live according to the noblest part of his nature — that, is Reason. Man, as the OP INTEENATIONAL LAW. 13 The great Jurists of the 17th century, who founded the modern science of International Law, fully recog- only auimal endowed witli rea- son, is bound to govern himself ancording to the dictates of Right Reason, the same Right Reason by which Nature, that is, the whole orderly system of the Universe (Kotrfios), moral and intellectual, as well as material and sensual, is governed. The Roman Jurists in Cicero's age and after wards, especially in the times of the Antonines (which formed the golden age of Roman Jurisprudence) taught that principles of truth and equity are discernible (though more or less mixed up with baser ele- ments) in the laws of all nations, and that these make up a law common to all Nations (Jus Gentium), and that they are in reality the fragments of a lost Law of Nature, which once existed in a perfect form, and which the Legislature and the Judge should strive to re- store, not by hasty and vio- lent subversions of their coun- try's municipal laws, but by making this ideal type of ex- cellence the model after which all prudent and practicable re- forms should be fashioned, and by calling in its spirit to guide them wherever they had to interpret doubtful matters or to provide for new emergencies. See this subject admirably ex- plained in Sir Henry Maine's ' Ancient Law.' A student may also consult with advan- tage Ortolan's ' History of the Roman Law.' In order to guard against misrepresenta- tion, I wish to state that I in- tentionally exclude the sup- posed archaic kind of Jus Natu- rale specified by Ulpian in a definition "which has passed into the Institutes of Justinian without, however, influencing Roman Law. To them [i. e. to Ulpian and his followers]. Jus Naturale is that in which men and animals agree, the law stamped on free animate beings. Savigny (System des heut. rom. Rechts, i. 415) thus explains their views : — ' There was a time, we may conceive, when men acknowledged only those relations which are common to man and beast, when they followed natural affections and impulses in all freedom ; this was the reign of Jus Naturale.' " President Woolsey, in his ' In- ternational Law,' cites this passage from Savigny. But as no such state of things ever existed, the Ulpianic hypothesis may be dismissed as one on which no sound argument can possibly be built. A similar remark applies to the utterly visionary hypothesis 14 FIRST PLATFORM and with the Jus Natu- rale of the Stoics and the best Eoman Jurists. Jits Natu- rale, as de- scribed by Grrotius. Summary of diiFerence be- tween Moral and Positive Law. nized this Moral Law, this Jus Naturale. Grotius gives the following definition of it. " Natural Law is the dictate of right reason indicating that any act, from its agreement or disagreement with the rational nature of man, has in it a moral turpitude or a moral congruity and propriety, and consequently that such act is forbidden or commanded by God, the author of Nature " *. 15. Ortolan has well summed up the difference between Moral Law and Positive Law, by saying that the standpoint of Moral Law is Reason, whereas the standpoint of Positive Law is Power f. It will be remembered that Positive Law is Law the breach of which is punishable by a human superior. There are of men having once lived in " a state of Nature," i.e. in ab- solute independence of each other, and owning no superior but God. Grotius in some parts of his ■work treats Jus Naturale as the law which alone these " noble savages " acknowledged ; and he draws, or attempts to draw, analogies from it as to the Jus Natu- rale between Commonwealths. But I think (though m. oppo- sition to the opinion of Mr. Wheaton, as expressed by him in his ' Elements du Droit International') that the rea- sonings of Grotius are in gene- ral consonant with his defini- tion of Jus Naturale which is cited in the text. The Jurists commonly speak of Jus Natu- rale and Jus Gentium as iden- tical ; but they sometimes draw a distinction between them. The distinction to be recognized between Jv^ Gentium and Jus Naturale, is caused by the admixture of baser elements vdth the fragments of the lost perfect Law of Nature. * " Jus naturale est diotatum rectse rationis indicans actui alicui ex ejus convenientifi aut disconvenientia cum ipsa na- tura rationali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore natures Deo talem actum autvetariautpraBcipi." — Grotius, De Jure Belli, lib. i. xi. t Ortolan's History of the Eoman Law, Pritchard and Nasmith's translation,p. 563,n. OF INTEENATIONAL LAW. 15 some other pairs of phrases with a similar contra- distinction between their terms respectively. Thus we hear of "Natural Obhgations" and of "Legal "Natural Obligations," or, as the last are sometimes called, ll^d^'^Lrgai " Civil Obligations." To be under a Natural Obli- ^^^s^^^""-" gation to do or to abstain from doing any act means that Moral Law or Natural Law requires such con- duct from us ; but it does not mean that a Positive Law has ordained any penalty to be suffered by us if we conduct ourselves differently. Hence Moral Laws and Natural Laws are frequently termed " Laws of Imperfect Obligation," a phrase which we must be care- ful not to misunderstand. The term " Imperfect Obli- gation " ought not to give the idea of a chain, some of the links of which are defective, and which therefore does not bind completely. The idea which it ought to give is the idea of a chain complete in itself, and morally binding*; but still it gives the idea of a chain not physically coercive. Its bonds are bonds which an unconscientious man may break without fear of punishment by the law of the land; and they are bonds which an unconscientious State may break with- out fear of war being declared against it for such breach. 16. Another pair of antagonistic phrases will be "Moral found in the terms "Moral Rights" and "Legal "Legal Rights." " Moral Right " is our claim to have that '^ * Lord Chancellor Selborne, Obligations,' things attended to in his judgment in Halliday v. by right-minded, honourable, Tamplin (a case to be again generous men, who do not referred to presently), speaks measure every thing by money of " those things which are and the mere letter of the called by Moralists ' Imperfect law." 16 FIEST PLATFOEM done or left undone to us by other men, which Moral Law (or Natural " Law ") requires or forbids. But in order to induce them to behave thus towards us we only rely on their Moral sense, or on our being able to convince them that they should behave thus on the principles of true Utilitarianism*. If there is any Positive Law, which sanctions our claim by imposing punishment on those who controvert that claim, our claim becomes a Legal Right, and ceases to be a mere Moral Right. I say it ceases to be a mere Moral Right, because in the great majority of cases, where Positive Law confirms Moral Law, a good man will respect the claims of his fellow-men on account of his own moral principles, Virtutis amore, and not be- cause he is afraid of being punished by the strong arm of the Law if he acts otherwise. Generally speaking, where there is a Legal Right there is a Moral Right coexistent with it; but this is not always the case; nay. Legal Right and Moral Right may at times be at variance. Even without absolute variance the Positive Law of the land will often allow a man to do and to exact things which it is morally wrong for him to do or to requiref . The great Roman Jurists took care to Non Omne poiut this out. They have laid down as the primary Honestum. maxim of Justice, that a man ought to live Honeste % . * This will be explained in % Juris Prsecepta sunt hffic : the next chapter. " honeste vivere," &c. Inst. t The late Chief Baron Pol- Hb. 1. tit. 1. § 3. Digest, lib. 1. lock used to say that " Human tit. 1. 10. sec. 1. Some re- Life would be unendurable if marks on the full meaning of all men were to insist on their the word Honestum will be full Legal Rights." found a little further on. OF INTEENATIONAL LAW. 17 They also warn us that because a thing is not for- bidden by the law, it is not necessarily therefore Honestum. " Non omne, quod licet, honestum est"*. 17. There is another pair of words to which, as distinguishable one from the other, it is necessary to draw attention. These are the two Latin words Jus and Lew, which are frequently employed by Jus and Lex. mediseval and modern Publicists, as well as by the old classical Jurists. The poverty of the English language in apt terms of Jurisprudence does not allow us to express, by any single English word, the ideas which the word Jus properly conveys when it is used in the very important sense which we have now to deal with. We can, however, Anglicize it in that sense sufficiently well for most purposes (though not with perfect accuracy), by calling it "Moral Law"t- * Digest, lib. 50. tit. 17. sect. 144 ; see also sect. 197 of same title. I have not entered into the distinction between " Sanc- tioned " and " Sanctioning " Eights, or into the various meanings of the Substantive " right " and the Adjective " right." They are important matters ; but I have omitted them from a wish not to load this chapter with more discus- sions on definitions than are absolutely necessary. The stu- dent wiU find valuable infor- mation on these subjects in Austin's 'Jurisprudence,' vol. i. p. 44, and vol. ii. p. 787, and in Poste's Gaius, pp. 6-9,1 32 etseq. t Sir George Bowyer, at p. 30 of his work on Public Law, says truly of this word Jus: — " "We come now to a part of our subject in which the diffi- culty arises that our language does not contain any word answering to the Latin word Jvs, as contradistinguished from Lex. That distinction is, however, quite necessary for comprehending the civilians and Jurists." Lieber, in his work on Civil Liberty and Self-Government, and in that on Political Ethics, 18 riEST PLATFOEM On the other hand. Lex, in the sense in which it is specially contrasted with Jus, is translatable, if here again we are allowed the use of a noun with an epithet to explain that which is expressed by a uses the adjective " Jural." He points out the difference between the " Jural " and "Legal" rights and relations at p. 160 of his work on Poli- tical Ethics. Whewell, in his translation of Grotius, uses the word " Jural." See also Ben- tham's note to the 23rd section of chap. xix. of ' Principles of Morals and Legislation.' When I originally wrote this treatise, I ventured on coining the compound words " Jui- Law " and " Lex-Law," as pointing -Out the distinction in question. The phraseology- would have been very conve- nient, especially if, when deal- ing with the peculiar part of " Jus-Law " which assumes its special character from the " Comity of Nations," Ihadbeen allowed to use the term " Mos- Law." Indeed " Jus-Law," " Lex-Law," and " Mos-Law " would have admirably sum- marized the whole subject. I, however, discarded my new compounds,partlyfromknowing the generally just dislike with which attempts to introduce new-fangled words are regarded, and partly because the main word Jus is used by Jurists and civilians in many other senses besides that of " Moral Law," to which I wanted to confine it. See Warnkoenig's list of the meanings of Jus in Eoman Law at page 1 of his ' Institution es Juris Eomani ; ' and see Mr. Nassau Senior's remarks on the meanings of the word Jiis in vol. Ixxvii. of the Edinburgh Eeview, p. 314. The great distinction between Jus and Lex is tersely and clearly stated by Mr. Monro in his note on the 1144th line of the 1st book of Lucretius : — " Juraque constituere ut vel- lent legibus uti." Mr. Monro remarks : — " Jus has a wider meaning than Lex, and in- cludes all which is, or ought to he, legally right." Professor John Grote, in his work on Modern Utilitarianism, p. 167, observes that " The notion of ' a system of Law which ought to exist' is a very good expression for what, in fact, is the Roman-Stoic or Philosophico-Juristic notion of Jus, — that ideal law so loftily described by Cicero, and after him by Hooker." OF INTEENATIONAL LAW. 19 noun sole in the original, and to say that, as con- tradistinguished from Jus, Lex means "Positive Law." 18. I can best illustrate what I have said about niustrations 7-17-1 ,. n nof the distino- Jus and Lex by quotmg a lew passages from tion between writers of authority, in which those words are used in "^"^ ^"'^ ■^"' the meanings, respectively, of " Moral Law " and " Positive Law." St. Thomas Aquinas, as quoted by Sir George st. Thomas Bowyer*, says, "Jus non est Lex, sed potius id quod j^^^°^ lege prescribitur seu mensuratur." He means that a Lex (Positive Law) is some "portion of Jus (Moral Law), which a superior prescribes to those subject to him, and which he compels them to observe. The passage is not, however, to be understood as implying that Positive Law is wholly made up of portions of Moral Law. The Rules of Positive Law are apt to contain a mixture of foreign elements." This is well illustrated by a passage in Savigny, gaTignyon the substance of which (following Bowyer*) 1 quote, '^^■ because it illustrates the distinction between Jus and Lex. " The rules of Positive Law may spring from Jus m jEquitas ; or they may spring from some- thing foreign to Jurisprudence. These foreign ele- ments, which introduce themselves into the law, some- times produce results contra raiionem juris. This Savigny names anomalous law, as contradistinguished from that proceeding out of Jus, which he calls normal law, and which the Romans sometimes desig- * Public Law, p. 123. His ' Traite du Droit Eom.' torn. i. reference to Savigny is to ch. ii. pp. 68, 59. c 2 20 FIEST PLATPOEM Lord Baeon on Jus and Lex, Expletory Justice and AttributiTe Justice. nate as Jus commune [i.e. as Jus naturale]. The Anomal law is described thus by Paulus under the name of Jus singulare. Jus slngulare est quod contra tenorem rationis propter aliquam utilitatem auctoritate constituentium introductum est"*. I will finally cite one more authority, which many English readers will probably regard more than the preceding. Lord Bacon says that the principles of Jus (Moral Law) are the general dictates of Reason — and that it is their function to permeate all the various matters of Lex (Positive Law), and to form a jural substratum on which every Lex (Positive Law) may rest. " Be- gulcR Juris sunt dictamina generalia rationis, qua per materias Legis diversas percurrunt, et sunt tanquam suburra Juris" \. 19. I do not think it necessary to do more than advert briefly to the phrases "Expletory Justice" and "Attributive Justice." They are expressions now seldom used ; but they are occasionally met with ; and as the distinction imphed by them is sanctioned by high authority, they must not be altogether omitted. One of the latest English Jurists who has used the phrase, Mr. Best, thus explains them|. "By Exj^letory [called by Mr. Best ' expletive '\ Justice, is meant that whereby we discharge to another duties, to which he is entitled by virtue of a perfect and rigorous obhgation, the performance of which, if with- * Digest,lib.l.tit.3. sect.l6. t Iiacon's"Works,v.i. p. 822. Ellis and Spedding's edition. % Principles of the Law of Evidence, p. 33. OF INTEENATIONAL LAW. 21 held, he has a right to exact by force. The latter [i.e. Attributive Justice] consists in the discharge of duties arising out of an imperfect or non-rigorous obligation, the performance of which cannot be so exacted, but is left to each person's honour and conscience. These are comprehended under the ap- pellations of ' humanity, charity, benevolence, &c.' " This is chiefly taken from Burlamaqui, whom Mr. Best refers to*. To adopt some of the phraseology which has been already explained in this chapter, we might say that Expletory Justice administers nothing beyond " Posi- tive Law," strict Zes, and legal rights and legal obli- gations ; whereas Attributive Justice would administer also " Natural Law," Law of " Imperfect Obligations," Jus in its amplest sense, and would deal with moral rights and moral obligations. * Burlamaqui, Principles of The passage in which. Grotius Natural Law,' part 1. eh. xi. speaks of this part of his subject sect. 11. is in Book 1. lib. 1. c. i. sect. . 22 PIRST PLATFORM CHAPTER II. On MoEAi. Intern ATioKAL Law. Moral Law an integral part of International Law. — A State is a Moral Agent. — Universality of this Law. — Jural Moral Prin- ciples. — Utilitarian Principle : its value as a test of Reasoned Trnth. — Montesquieu's Rule. — Its Pacific Branch. — Comity of Ifations. — Close Connexion between Moral and Positive Inter- national Law. — ^Vattel's Exposition of Montesquieu. — The Three Ulpianic Prsecepts. — Bowyer's and Savigny's Comments on them, — " Pactum Serva :" importance of this Rule as to Treaties. — Senior's Demonstration of its Utility. — Recent Proofs of this. — Extent of this Maxim's Applicability. — ■ Maxim that " A Wrong to one State is a Wrong to all, which all should join in redressing." Moral Law an 20. Having endeavoured to explain what "Moral Integral Part ' ofjurispru- Law" {Jus Naturale) is, I will cite some reasons and authorities for believing that it forms an integral por- tion of International Law. It is the more important . to do this, because some modem writers draw very sharply the line between " Morals " and " Law," and maintain that Positive Law only falls within the proper province of jurisprudence. AUjarispru- 21. A Sufficient refutation of this dogma is found dence recog- _ ° nizes the do- in the fact, that the laws of every civilized nation recog- contract is flizc Moral Law, and require their tribunals to discuss contra honos . _ ^ mores. questions of morality. A valid defence may always be made to a claim founded on contract by showing that the performance of the agreement in question OF INTERNATIOlSrAL LAW. 23 was or would be contra bonos mores*. So, too, Courts of Equity, when called on to set aside deeds Courts of and other proceedings, because the execution of such pressiy recog- ji iiii* i?i T J ^ize " Laws of deeds or the taking or such proceedings was not imperfect ob- directed by strict Positive Law, will examine carefully '^^ '™' whether the defendants were acting on morally just grounds and through honourable feelings ; and the Courts will uphold transactions in which the parties were thus guided by Moral Law, by Jus Naturale, by Imperfect Obligations"!. 22. Assuming, then, that Moral Law forms a true portion of Jurisprudence as between individual men, we shall be prepared to regard Moral Law as forming a true part of Jurisprudence between States, if we bear in mind that " a State is a Moral Agent." This * This applies to conditions imposed by Testamentary direc- tion, as ■well as to those which it is sought to create by com- pacts. The great Eoman law- yers declared that all acts of crime or turpitude, " whatever outraged piety or a man's good fame, or his sense of self-re- spect, ought to be regarded as impossible" — that is, impossible to a reasonable and virtuous man. " Nam quae facta Isedunt pietatem, esistimationem, vere- cundiam nostram, et (utgenera- liter dicam) contra bonos mores sunt, nee facere nos posse cre- dendum est." Digest, book 28. tit. vii. 1. 15. t See the words of Lord Chancellor Selborne in Halliday V. Tamplin, already cited in note to p. 15, supra. In the Eoman Jurisprudence Naturales Ohligationes were frequently subjects of practical importance before the Tribu- nals. The extent to which they were recognized is thus stated by Warnkcenig (Institutiones Juris RomaniPrivati, sect.758). " Naturalis Obh'gatio h civili in eo solummodo differt, qu6d actionem non parit : in reliquis eandem habet vim et potesta- tem, quam et civiles ohliga- tiones habent. Ad compensan- dum et ad novandum prodest : pignus et flde-jussio in ejus securitatem dari potest, et quae sunt reliqua obligationum effecta." 24 EIEST PLATFOEM maxim has been contradicted by some writers ; but if we believe that man is a moral agent, and if we consider how a State is composed, it must surely be evident to us that a State is a body politic with moral rights and moral responsibilities. The human beings, who make up the Community which (under certain conditions already pointed out) constitutes a State, are, each and all of them, individual beings with itisanaggre- moral rights and obligations. Moral duty is an agents; and the attribute of human nature. Men, by combining into g^e^tion can- a State, caunot get rid of the attribute of moral duty, attributes of ^ ^^Y more than they can by combining into a political ^"d moral re- (^^^^, or a Commercial partnership. The sphere of sponsibiiity. operation for morality may be enlarged ; but this can- not destroy the principle. However small or however large the population of a State may be, it is a human aggregate of morally responsible beings ; and when such beings are made up into a State, the attribute of moral right and moral responsibility applies to the joint entity and joint action of the human aggregate, as fully as to the single entity and single action of each human particle. This great truth is of incalcu- lable importance to the International Jurist. If we thoroughly weld it into our minds, it matters little how we phrase it : whether, with Vattel*, we say of Tntt"^^"'^'^' the State that "elk est une personne morale qui a Bow^ tr's *°'^ entendement et sa volonte propre, et qui est capable Buriamaqui's d' obligations et de droits;" or with Bowyerf, after BaiUnger's. Burlamaqui and Ballinger, that "States acquire a r»e Garden's, legal personality " or with De Garden, that "les * Vattel, Prelim, sect. 2. f Bowyer, p. 125. OF INTERNATIONAL LAW. 25 differents etats, qui cowvrent la surface du globe, sont des personnes morales, c'est a dire, des etres raison- nahles et lihres comme les individus qui les composent"* ; or with Lieber, that " the State is a jural society, and Lieber's. has likewise a moral character and must maintain iff ; or with Phillimore, that "independent communities PhiiUmore's are free moral agents, and are mutually recognized as such in the universal community [of States], whereof they are individual members''^. 23. I will cite one authority more, the great American Jurist, Chancellor Kent. I refer to him in chancellor this part of my subject the more gladly because the part of his 'Commentaries' which treats of International Law, is valued by statesmen and practical Jurists as much on account of the sober good sense as on account of the eminent abilities and far-reaching learning of the Commentator. Kent says, " The most useful and practical part of the Law of Nations is, no doubt, Instituted or Positive Law, founded on usage, consent, and agreement. But it would be improper to separate the Law entirely from Natural Jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the Nature and Constitution of man, and the same sanc- tion of Divine revelation as those from which the law of morality is deduced. There is a Natural and a Positive Law of Nations"^. " We ought not to sepa- * De Garden, ' Histoire des t Phillimore, vol. i. p. 9. Traites,' p. 2. § Vol. i. p. 2. Among very t Lieber, ' Political Ethics,' recent works of high authority p. 167. on International Law, Blunt- 26 PIEST PLATFOEM rate the science of Public Law from that of Ethics, nor encourage the dangerous suggestion that govern- ments are not so strictly bound by the obligations of truth, justice, and humanity in relation to other powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. 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 government of individuals in a state of natural equality and to the relations and conduct of nations, of a collection of usages, customs, and opinions, the growth of civiliza- tion and commerce, and of a code of conventional or positive law. In the absence of these latter regula- tions the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation "*. sohli's ' Le Droit International in part of his late work Codifle,' may be also referred on International Law (Droit to. He says (p. 2, Lardy's International Codifie, Lardy's translation, last edit.), "Chaque translation, ed. 1873, p. 62), Etat est un ensemble, nne per- says expressly, " Les Etats sont sonnalite,un etre quia ses droits les personnes du droit inter- et una volonte' tout comme les national. La personnalite est personnes physiques." une quality necessaire des ^tals. Kent nt suprcL. Bluntschli, Une personne, dans le sens * OP INTEENATIONAX LAW. 27 24. The "Moral Oligations," which Chancellor Universality of International Kent here speaks of, apply to all States, and not Law. merely to States which are composed of Christians. It follows that Moral International Law is as universal as humanity, at least wherever there is civilization enough for men to be organized into Political Commu- nities*. Bishop Sanderson, our old English Divine and casuist, in his treatise on the Obligation of Conscience, distinguishes between, 1st, the Lumen Innatum — that is, man's natural sense of Right and Wrong ; 2nd, the Lumen Acquisitum — that is, the additional test which man gains from observation and reason ; and, 3rdly, the Lumen lllatum of Revealed Religion. Unquestionably this direct light from Heaven is the surest and holiest of all guides ; and the influence of it over all, who call themselves Chris- tians, ought to ensure for the moralities of Interna- tional Law a more zealous recognition, and a more certain mutual enforcement among the States of Christendom in their dealings with each other, than can be looked for in international transactions wherein States not Christian are concerned. But it is an it is an error to assert that exaggeration and an error to assert, as some have Natural Law juridique du mot, est un etre quiert la qualite de personne capable d'acquerir ou de faire intern ationale." valoir des droits, et de contrac- * " Toutes les nations ont ter des obligations. L'etat un droit des gens" (Lawrence, reglant librement le droit sur Commentaire sur Wbeaton, son territoire est chez lui la torn. i. p. 99. "Le Droit personne par excellence. L'etat, International est independant ^ mesure qu'U entre en rela- de la religion" (Bluntschli, tions avec d'autres dtats, ac- p. 17). 28 FIEST PLATFOEM enough to found Inter- national Law cannot exist between us and heathen nations. Practical im- portanceofthis to English- Proof of Natural Law without Reve- lation. asserted, that there is no general valid International Law beyond Christendom, or that there was no general valid International Law in existence before the times of Christianity. These two propositions are involved one with another, and must stand or fall together. The question of their truth is no mere speculative question. It affects the dealings of nearly all the European States, and of the States founded by Euro- pean settlers in America, with nearly all the nations of the rest of the world. It is preeminently a practical question for members of the British Empire, within the territories of which are comprised so many myriads of so many different faiths, and the manifold frontiers of which come into contact with countries of Mahometans, with countries of Buddhists, with coun- tries where almost every known form of Paganism has its worshipping population. 25. This is the proper place to consider this ques- tion, as, without proving the universality of Natural Law, we cannot show the universality of general International Law. The universaUty of Natural Law can be proved at once to the Christian by a reference to the Christian Apostle, who speaks of the Law of God written in the heart of the Gentiles, and of the witness which the human conscience bears to this Law*. And (independently of this proof from Holy writ) it is demonstrable from the general agreement of nations, in all ages and in all climes, as to the main rules of morality, as to which I would cite the eloquent * Epistle to the Komans, ch. ii. yer. 15. See the Com- ments of Donellus on this, cited inBowyer's ' Public Law.'p. 32. OP INTEENATIONAL LAW. 29 and comprehensive words of Sir James Mackintosh, as transcribed by his son from his Manuscript Lec- tures on the Law of Nations : — " MoraUty admits no citation from discoveries. I do not speak of the theory of Morals, but of the rule of life. Examine the codes of nations, those authentic depositories of the moral judgments of men, you everywhere find the same rules prescribed, the same duties imposed : even the boldest of those ingenious sceptics, who have attacked every other opinion, has spared the sacred and immutable sim- plicity of the rules of life. In our common duties, Bayle and Hume agree with Bossuet and Barrow. Such as the rule was at the first dawn of history, such it continues till the present day. Ages roll over mankind, mighty nations pass away like a shadow; virtue alone remains the same, immortal and un- changeable." 26. Mackintosh here argues from the antiquity as Antiquity of well as from the ubiquity of the great general rules " "^* *^' of Morality. Aristotle's Nicomachean Ethics, or Cicero's treatise De Offlciis, could prove this antiquity sufficiently for the purpose of our present argument ; that is to say, they could prove that even with- out Revealed Rehgion there has been, and is, a known Law of Natural Morality and Natural Religion, by means of which men have been, and are, and may be enabled to discern and cleave to that which is good, and to abhor and oppose that which is evil. Other proofs in support of this truth, from the classical and from other ancient writers, have been and may be brought forward in multitudinous force; but it is 30 PIEST PLATFOEM prOTed espe- cially from the Roman Jurists. Eioman Law the Jurispru- dence of Heathen Rome. Practical im- portance of a knowledge of this Moral Law. best evidenced by the writings which we possess of the Jurists of ancient Rome. Though many of those great men wrote after the Christian era, and though the chief compilations of their works were made under the directions of Christian Emperors, Roman Juris- prudence is essentially the product of ancient, of unconverted Rome. This fact is emphatically acknow- ledged by Dean Milman, in his recent ' History of Latin Christianity.' In the masterly account there given of the legislation of Justinian, he says that " within its civil domain it was still almost exclusively Roman. It might seem that Christianity could hardly penetrate into the solid and well-compacted body of Roman Law ; or rather, the immiitable principles of Justice had been so clearly discerned by the inflexible rectitude of the Roman mind, so saga- ciously applied by the wisdom of her great lawyers, that Christianity was content to acquiesce in those statutes, which even she might, excepting in some respects, despair of rendering more equitable "*. 27. This universal Moral Law supplies the general Principles of Right and Justice, which Chancelloi* Kent (in the passage already cited) speaks of as forming so important a part of the Law of Nations. It supplies us moreover with principles of interpreta- tion, by which we may decipher the meaning which ought to be given to the numerous difficult passages of Positive Law. It imbues the Jurist with the spirit in which Positive Law should be studied. It shows the Legislator and the Statesman what ideals of * Vol. i. p. 358. 0¥ INTEENATIONAL LAW. 31 excellence should be aimed at as models, when Posi- tive Law is altered or supplemented. And the present is an age in which International Law has received, is receiving, and will receive much change and develop- ment. To quote the words of Professor Sheldon Amos, " Public International Law exhibits Law in the making ; that is as undergoing the characteristic process of Transmutation from habitual Moral Prac- Positive inter- , • ■ 1 1 • 1 mi • ■ • national Law tices mto severely coercive rules, ihis process is, in ia in oontinuai every nation, slow, tentative, and uncertain, as well mation o°ut of ' as intermittent and even occasionally retrograde. ""^^ *^' International Law suppUes a vivid example, on the largest scale, of this progressive DevelopTnent going on before our eyes"*. He afterwards well describes how International Law impresses on the Student of Jurisprudence the true dignity of his subject "when he is called upon to investigate what legal rules for the regulation of Ownership, Contract, Belligerency, and Neutrality (the persons concerned being Sove- reign States) can be most conveniently adopted in view of the different systems of Law prevalent in the several States. The Jurist (to whom the Student betakes himself in treating so profound a question as this, involving as it does the life and welfare of count- less numbers of persons) is found to be doing nothing more than exercising his ordinary craft. He is dis- covering Permanence and Universality in the midst of incessant Flux and Variety. He is enforcing the peremptory Dictates of a great Moral Unity in the midst of innumerable distracted Pactions. He is * Systematic View of the Study of Jurisprudence, p. 504. 33 riEST PLATFOEM Impossible to understand the formed Posi- tiye Law with- out knowing the ingredi- ents, and the processes. Austin's cen- sures on Grotius and others well- founded. tempering the heated passions of men by recalling to their minds eternal principles of Moral Right and Justice, which no artificial Institutions can transform, nor accidents of War annihilate or obscure. He, whose habitual occupation it is to study the laws of every Nation with the view of determining what is common to all, is never so much at home as when called upon to legislate for all Nations in the name of Principles which no civilized nation can refuse to recognize. Thus International Law is the most serviceable, the most charming, and the most honourable of the pur- suits to which the Judicial Student is imperatively urged"*. 28. Now I venture to ask, how is it possible to study International Law, or any other part of Juris- prudence, without understanding and without constant reference to these " Eternal Principles of Moral Right and Justice" which are ever to be recalled to men's minds, and which, in the administrative as well as in the Legislative fashioning of International Law, are " undergoing the process of transmutation from habitual Moral Practices into severely coercive rules" ? Austin had good reason for his censure of Grotius and other writers who perpetually blend together and confuse the Law as it is, with the Law as it ought to * The Science of Jurispru- dence, p. 504. Professor Shel- don Amos, in his definition of " Jurisprudence" at the begin- ning of his work, peremptorily severs it from Morality. In this he may seem to be following his great predecessor at University College, John Austin. But the passages which I have just been quoting show a far better judg- ment as well as feeling on the subject. OF INT.EENATIONAL LAW. 33 be. But in order to avoid this mischief there is no need to mutilate the subject, and to fling away the noblest portion. There is no serious difficulty (though it The opposite . may require some care and may cause some itera- avoided. tion) in pointing out that which has been hitherto received as the Positive practical law on the subject, and in pointing out separately that which seems likely to become the law, and which ought to become the law, and the spirit of which ought even now to interpret the letter of the actual law, wherever that letter requires interpretation. Bluntschli has carefully drawn this distinction in his recent ' Droit Inter- national Codifie;' and so has Mr. Dudley Field, in his very valuable ' Draft Outlines of an International Code.' It would be difficult to find more lucid works than these are, especially when we remember how complex is the subject. 29. But though we may see plainly that a con- sideration of Moral Law is an essential and practical part of the study of Jurisprudence, it would be need- lessly wearisome to introduce an elaborate and lengthy treatise on Ethics, comprehending all the numerous branches of that very complicated subject, in a book which is intended to be a practical work on Inter- national Law. It is unnecessary to do much more than Oniyneceseary .,T. p . . 1*11 1 to state a few to recapitulate a tew moral maxims, which have been Moral Princi- recognized by Jurists of high authority, and which reoo^izedar we may term " Jural"* as well as Moral Principles, p"^. But I consider it also to be very important to show * See note t at p. 17, supra, as to the usage of the word " Jural." 34 PIEST PLATFOEM that when we adopt and employ these maxims as principles of International Morality, we have a reason for doing so, which is stronger than the mere autho- rity of the writers in whose pages they are found. They are in This reason consists in the fact that these maxims are with the Priu- in accordance with the true principle of true Utili- utihtaria™^ tarianism ; that is to say, it is demonstrable that the '^"'' observance of these maxims as general rules of con- duct would be for the benefit of all whose interests are affected by such observance. I will explain pre- sently why I, although a firm believer in man's innate moral sense and in man's intuitive- discern- ment of Right and Wrong, recognize and adopt the Utilitarian theory for purposes of argument and expo- sition*. For the present I will only remark how desirable it is to establish, if possible, at the outset of our inquiries a test by which " Reasoned Truth "f ■utilitarianism cau be ascertained. Utilitarianism supplies that test, of "Seasoned It sliows why International Law ought to exist. It de- cides the soundness or the unsoundness of each alleged maxim of International Morality. It teaches, more- over, why every Positive International Law should be respected so long as it exists ; in what spirit it should be interpreted ; and how, if change be desirable, it should be changed by processes of cancellation, varia- tion, substitution, or addition. Truth.' * Chapter III. is chiefly de- voted to the consideration of the true Principle of Utilitarianism, and its proper applicability. t " Eeasoned Truth — an aggregate of matters believed or disbelieved after conscious process of examination gone through by the mind, and ca- pable of being explained to others." — Grote's Preface to Plato, p. 5. OF INTEENATIONAL LAW. 35 I shall apply this test to every portion of Posi- tive, as well as of Moral International Law. My immediate duty now is to state certain Maxims which are to be considered as International Moral Principles. 30. Not proceeding according to the date of the writing, but according to the general importance of the rule, I will cite first the maxim which Montes- Montesquieu's quieu lays down as the foundation of International ™*^™ Law. " Nations ought to do each other as much good in peace, and as little harm in war, as possible, without injury to their own true interests"*. 31. The soundness of this principle, according to in accordance the Utilitarian Test, is self-evident. tarianiam. 82. It is a very important Jural maxim in both its branches — in that which relates to the conduct of States towards each other in peace-time, and also in that which regards their conduct in time of warfare. This last branch will be more conveniently considered The Pacific in a separate part of this work, which will treat of Euie.^ International laws and usages arising out of a state of war. For the present we will limit ourselves to the examination of so much of Montesquieu's rule as has reference to the duties of nations in time of peace ; and even of this part much may best be reserved for distinct consideration in another chapter : I mean the regulations connected with what is technically called " the Comity of Nations " — that which I would * " Le droit des gens est le moins de mal qu'il est pos- naturellement fonde sur ce sible sans nuire a leurs ve'ri- principe, que les diverses na- tables interets." — De VEsprit tions doivent dans la paix le des Lois, 1. 1. c. 3. plus de bien, et dans la guerre D 2 36 FIEST PLATFOEM gladly be allowed to call the Mos of International Jurisprudence, as in some respects distinguishable from both its Jus and its Lex*. The Comities 33. There is a set of courteous and convenient tionai Law. observauces, usually followed in the conduct of States towards each other, too definite and often too minute and conventional to make it proper to call them moral principles. The violation or neglect of these is not considered sufficient in itself to justify war, though one State is by such violation or neglect often placed in an attitude of avowed ill-will and suspicion towards another State. These observances of courtesy and convenience are said to depend on what Jurists and Statesmen style the " Comity of Nations." It might be truly argued that respect to them is required by the rules of Moral Law, and especially by Montes- quieu's canon. But it will be more convenient to discuss them when we are setting forth the present practical condition of Positive International Law. It may, however, be mentioned at once, that the main subjects of the Comity of Nations are as fol- lows : — Principal sub- Ist. The Recognition and Enforcement of each Comity of other's municipal Laws as to questions of Contract and Property. 2nd. The extradition of Criminals. 3rd. The reception and treatment of Foreign Vessels and their crews in certain cases. 4th. The admission and treatment of Foreigners as travellers, traders, or residents. * See note t at p. 17, supr&. Nations. OF INTEENATIONAL LAW. 37 5th. Certain Diplomatic matters, such as the privi- leges of Ambassadors. 6th. Certain immunities and honours accorded to Royal Foreign Visitors. 34. The requirements of International Mos, or Comity, differ very much in their relative degrees of importance. None have the sanction of Physical Varying im- Force ; for there is none the breach of which is held these Subjects. to make a Casus Belli. But violations of the more serious of them will, especially if persisted in, or often repeated, make War inevitable, inasmuch as jealous and incensed spirits will, under such circumstances, put the worst possible constructions on each other's acts, will refuse all explanation of their own, and will hardly fail to give or to find what will be thought, or, at least, will be called a legitimate pretext for open hostihties. 35. Indeed this last observation holds good to a considerable extent as to all the principles of Moral International Law ; and it shows how imperfect a treatise on International Jurisprudence would be, if it excluded the Moral department. 36. I will now state Montesquieu's rule as ex- Vattei's eipo- plained by Vattel. "Every nation ought to con- tes^uieu's rub' tribute to the happiness and the perfection of other nations by all means in its power ; but when a nation cannot contribute to the good of another nation with- out essential injury to itself, its obhgation in that particular instance ceases, and it is to be considered an impossibility for the nation to render that service " *. * Vattel, ' Preliminaires,' sSct. 13, 14. 38 FIEST PLATFOEM The three, Ul- pianio Prse- cepts. Most of the practical examples of the applicability of this rule, which are given by Vattel, will have to be considered when we come to discuss the " Comity of Nations." Vattel also mentions the moral duty of one nation to assist another when that other is suffer- ing under famine, or flood, or pestilence, or other grievous physical calamity. But no nation is bound to do this if it thereby exposes itself to serious pri- vation ; and each State is to determine for itself whether the case be one requiring it to give assistance *. 37. I will now recapitulate, as Primary Rules of International Moral Law, the three great maxims which are placed at the very commencement of the Institutes and of the Digest of Roman Law. The particular passage in which these prsecepts are set forth, was taken from the writings of the Jurist Ulpian ; and they are often referred to as the " UJpianic Pre- cepts." They are as follows : — " Juris preescripta sunt TitBC. 1. Honeste vivere. 2. Alterum non ladere. 3. 8uum cuique reddere.'' Bowyer's and 38. Sir Gcorgc Bowycr, in his work on 'Universal Savigny'.s com- -n ■> ■•• -r > • i i BientBonthem. Pubhc Law, says Tightly that these Ulpianic prse- cepta are not mere rules of law, but general principles calculated to furnish categories of law. Of these three prsecepta the first is (as Savigny has remarked) the first in essence ; it is the most profound, and it contains the germs of the two others "f. 39. I have cited this precept in the original Latin only, Honeste vivere. It is impossible to express t Universal Public Law, p. * Yattel, lib. 2. eh. 1, sect. 5, 9 ; and see Halleck, p. 283. 27. OP INTEENATIONAL LAW. 39 the meaning of these words in a single EngUsh sentence. Vivere Honeste means far more than to " live First Precept, honestly." Certainly the Honestum comprehends nesth. the meaning of Honesty ; and the individual or State that acts dishonestly acts inhoneste. But the Honestum is not limited to mere probity of the Meaning of purse, in mm who hves honeste there can be no meanness, no unseemliness. The beautiful description of the Honestum given by Cicero in the first book ' De Officiis,' shows that he considered that quality to involve a love of Truth for Truth's sake, magnanimity, a sense of order, an appreciation of all intellectual beauty and social benevolence toward fellow men, as well as good faith and integrity. Honeste vivere is to possess and to practise the KaXoKayaQlnv * of the Greek philosophers. And we may without irreverence compare it to that aptitude and affection for " what- soever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report," which the Christian Apostle enjoined to his Phihppian converts f- 40. Savigny, further commenting on the Ulpianic Savigny'scom- V ■ • I . ments on thj precepts, says that "Honeste vivere is the mamte- throe. nance of the moral rectitude of the individual ; nemi- nem leedere is the observance due to other men, and suum cuique trihuere is the practical recognition of the rights vested in others." To some persons these two last precepts have appeared to be tautologous; but they are not so. * As to the word KaXoif^yci- t PHlipp. iv. 8. Qlav, see Hooker, book i. sect. 8. 40 FIEST PLATFOEM The precept Alteram non leedere forbids offences of commission ; the maxim suum cuique tribuere pro- hibits wrongs of omission also. 41. A cardinal maxim of Justice in all its forms, whether between man and man, or between nation Pactum and nation, is the maxim " Keep Eaith " {Factum serva. serva) *. " The Foundation of Justice is Good Paith ; that This the foun- is to Say, the keeping sincere adherence to our words dationofall >> r -n -r • ■ Justice. and to our covenants [Jb uadamentum Justitiee est Fides, id est dictorum conventoricmque constantia et Veritas) f. So says the ancient moralist ; and one of our latest jurists has in no exaggerated terms denounced " the treaty-breaking State as the great enemy of nations, the disturber of their peace, the destroyer of their happiness, the obstacle to their progress" |. He says rightly that the maxim Pacta sunt servanda is the pervading maxim of International as it was of B/oman Jurisprudence §. Importance of 42. I should havc reserved this subject for an after van^ofThis part of this volume, when I shall have to speak in Treaties. detail of Treaties and their incidents, if it were not that an opinion seems to be gaining ground that, although the breach of a Treaty is always a legitimate cause for war according to the received practical regulations of International Law, yet there is nothing morally wrong in such breach, if the State that breaks * This maxim was inscribed f Cicero de Off. lib. 1. 7. on the tombstone of the greatest % PhUlimore, vol. ii. p. 57. of English kings, Edward the § Ibid. First. • OF INTEENATIONAL LAW. 41 the Treaty has been unfairly and hardly bound by that Treaty. Thus Dr. Momsen, in his well-known Dicta to the ' History of Rome ' (now largely studied in English °°^ ™'^' as well as in German Universities), uses these words : — " A great nation does not surrender what it possesses, Momseu'a. except under the pressure of extreme necessity ; all treaties which make concessions are acknowledgments of such a necessity, not moral obligations. Every people justly reckons it a point of honour to tear in pieces by force of arms treaties that are disgraceful " *. 43. Moreover the case of the defeated nation. Attempts to ,.,. 1 ■ M' r- <■! 1- invalidate Buoh which, m order to save itselt trom further calamity, treaties as ob- concludes a disadvantageous treaty with its victorious Duresse. enemies, has sometimes been assimilated to the case of the individual who has been induced by violence and threats of death to make a promise to and a covenant with robbers. But Mr. Senior has well pointed out the difference senior's de- bet ween the obligation of treaties on States and the the fallacy of ,,... n • 'j-'ii Ji, such reason- obhgation oi engagements on individuals; and he i„g. shows that the principle of general Utility determines the difference. " Agreements entered into by an utilitarianism f • T I T -1 11 -11 •!. • determines the individual while under duresse are void because it is difference. for the welfare of society that they should be so. If they were binding, the timid would be constantly * Momsen's History of Eome, their treaties longer than while vol. i. p. 403, Dickson's the interest or danger which Translation. Two centuries first formed the treaties con- ago Spinoza had avowed what tinues." But this doctrine had, Mackintosh terms " the ahsurd until lately, found few advo- and detestable maxim " that cates in theory. States are not bound to observe 42 PIEST PLATFOEM Kecent proof of the sound- ness of Mr. Senior's opi- nion. forced by threats or by violence into a surrender of their rights, and even into secrecy as to the oppression under which they were suffering. "The notoriety that such engagements are void makes the attempt to extort them one of the rarest of human crimes. On the other hand, the welfare of society requires that the engagements entered into by a nation under duresse should be binding ; for if they were not so, wars would terminate only by the utter subjugation and ruin of the weaker party. "If the alHes had believed [in 1815] that their treaties with France were waste paper, they must have destroyed her fortresses and partitioned her territory. They ventured to leave her powerful only because they thought they could rely on her engage- ments"*. 44. Mr. Senior wrote this in 1843. During the last three years his words have received a very re- markable illustration from the conduct pursued by victorious Prussia towards France in 1871. Inasmuch * Ed. Eev. vol. Ixxvii. p. 307. See also the dictum of Sir Samuel EomUly in the Parliamentary debate of Feb. 10, 1816; cited by General Halleck in p. 455 of his work : — " There would be an end of all faith among nations, if trea- ties were held not to be bind- ing because the wars out of which they arose were unjust, especially as there could be no competent judge to decide upon the justness of the war but the nation itself." See also the re- ferences in 1 Phillimore, pp. 151, 154 to D'Agnesseau and Montesquieu ; and the ener- getic sentences of BynkershoeU, which are there cited. Blunt- schli says of this : — « Le fait que le vainqueur etait beaucoup plus puissant que le vaincu, et rin%alit^ des conditions de la lutte n'entrainent pas la nuUite du traits." — Le, Droit Inter- national, ed. 1874, p. 393. or INTEENATIONAL LAW. 43 as the Prussian statesmen no longer believe that treaties will be held binding, when France shall have recovered her strength, they have dismembered her. Lorraine and Alsace have been rent away ; and the conquerors avow that they have done so in order to make their own success speedy and certain on the expected revival of the war by Prance. 45. An instance of glaring contempt for the obli- Eussian repu- ./. p,,- T i-r>.i. diation of the gatory force of treaties was shown by Russia, when m Crimean 1871 she informed Europe that she no longer consi- ™*^' dered herself bound by the treaty of 18.56, which debarred her ships of war from navigating the Euxine. At the instance of England the formality was gone through of a joint acknowledgment of the general principle that one party to a contract cannot nullify it without the consent of the other contracting parties ; but Russia gained her end in shaking off the restric- tions imposed in 1856. If the probability of this could have been foreseen, England and France would hardly have consented to grant peace to Russia with- out having crippled her power far more effectually and permanently. 46. It is also to be remembered that the maxim Extent of this " Keep Faith " holds good in International Law not "S^!" only with regard to the covenants inserted in formal treaties, and other solemn diplomatic conventions, but with regard to all promises expressed or implied. " The obligation of promises depends on the expecta- tions which we knowingly and voluntarily excite " *. * Paley's Moral Philosophy, same principle is stated ia book iii. part 1. ch. v. The Mill's 'Utilitarianism,' p. 67, 44 FIRST PLATPOEM Principle that a serious wrong to one State is a wrong to all, which all should join in redressing. The Solonian maxim. A State which has habitually practised towards others the rules of the Comity of Nations, and which has availed itself of the benefit of those rules in its inter- course with others, would act perfidiously if it sud- denly and without warning violated those rules, though not binding on it as Positive Laws*. 47. Finally, I would gladly copy, and extend to International Jurisprudence, the maxim which the old Athenian Lawgiver and Statesman pronounced as to the spirit of Administration by which effective Justice is most fully secured. " That Commonwealth is best administered, in which any wrongs, that are done to individuals, are resented and redressed by the other members of the community, as promptly and as vigorously, as if they themselves were personal suf- ferers"!. This applies to the great Commonwealth with the important ■warning that this obligation of justice " may be overruled by such conduct on the part of the person concerned as is deemed to absolve us from our obliga- tion to him, and to constitute a forfeiture of the benefit which he has been led to expect." See also Austin's ' Jurispru- dence,' vol. i. p. 456. * See the passages from the judgment of the American Chief Justice Marshall in the case of " The Exchange " (7 Cranch, 135), cited by Chief Justice Cookburn in his judg- ment in the Geneva Arbitra- tion, p. 151, Blue book : — " A nation would justly be consi- dered as violating its faith, although that faith may not be expressly plighted, which should suddenly and without previous notice exercise its ter- ritorial powers in a manner not consonant to the usages and received obligations of the civi- lized world." t See Plutarch's Life of Solon, sect. 18 : — 'EpwrijOets r\ris oiKcIrai KaWior tCiv iro- \eh>v ■ 'Ek-etVij, earev, kv t) tiHv adiKOVfj^vioy ovK ^ttov oJ |u») aSiKovjuevoi ?rpo/3a\Xoi'rat xal KoXaiovCi rows ddiKovvTas. This is cited with approbation by Grotius, book 1. ch. v. sect. 2. or INTERNATIONAL LAW. 45 of civilized Slates. If this feeling were utterly extinct, the phraseology of International Law would be idle Grotius speaks more expli- citly in a subsequent passage on the right of every nation to join in forcibly repressing violations of International Law. Grotius says (lib. 2. c. xx. sect. 40) : — " Sciendum quoque est reges, et qui par regibus jus obtinent, jus habere poenas poscendi non tantum ob injurias in se aut subditos sues commissas, sed et ob eas quae ipsos peculiariter non tangunt, sed in quibusvis personis jus naturaa aut gentium immaniter violant. Nam Uber- tas humanse societatis per poe- nas consulendi quae initio, ut diximus, penes singulos fuerat, civitatibus ac judiciis institutis penes summas potestates rese- dit, non propria qu^ aliis impe- rant, sed qui nemini parent. Nam subjectio aliis id jua abstulit. Imo tantum hones- tius est alienas injurias quslm suas vindicare, quanto in suis magismetuendum estnequisdo- loris sui sensu aut modum exce- dat, aut certe animum inficiat." In the 40th section of the 25th chapter of the same book, when speaking of the causes which justify war in behalf of others, he says : — " Postrema latissimeque patens est homi- num inter se conjunctio, quae vel sola ad opem ferendam suffl- cit. Homo in adjutorium mu- tuum generatus est, ait Seneca." A little further on Grotius quotes Plato also : " Punien- dum censet qui vim alteri Ula- tam non arcet." Grotius also quotes Cicero de Offlciis, i. 7 : — " Qui non defen- dit, nee obsistit, si potest, inju- rim, tarn est in vitio, quam si parentes, aut patriam, aut so- das deserat." Grotius rightly understands the words si pos- sit as implying a limitation that the third party is not bound to interpose if interpo- sition would involve grievous peril to himself. On the right of every nation to join in forcibly repressing violations of International Law, see Vattel, 'Preliminaires,'sect. 22, entitled Droit des Nations contre les infracteurs du droit des gens : — " Les lois de la so- ciete naturelle sont d'une telle importance au salut de tons les Etats, que si I'on s'accoutumait a les fouler aux pieds, auoun peuple ne pourrait se flatter de se conserver et d'etre tran- quille chez lui . . . Done toutes les Nations sont en droit de reprimer par la force celle qui viole ouvertement les lois de la societe que la nature a etablie entre elles, ou qui attaque di- rectement le bien et le salut de cette societe." 46 FIRST PLATFOEM gibberish, and the world would be utterlj' abandoned to the cupidity and the violence of the selfish and the Again, he says in liv. ii. c. i. s. 4: — " Quand un Etat voisin est injustement attaque par un ennemi puissant, qui menace I'opprimer, si vous pouvez le defendre sans vous exposer a un grand danger, il n'est pas douteux que vous ne deviez le faire. N'objectez point qu'U n'est pas permis a un Souverain d' exposer la vie de ses soldats pour le salut d'un etranger, avec qui il n'aura contraote aucune alliance defensive. II pent lui-meme se trouver dans le cas d'avoir besoin de secours ; et par consequent mettre en vigueur cet esprit d'assistance mutueUe c'est travaUler au sa- lut de sa propre Nation." Again, Vattel in the 283rd paragraph of the 23rd chapter of his first hook, says : — " Les Nations ont le plus grand in- teret a faire universeUement respecter le droit des gens qui est la base de leur tranqniUite. Si quelqu'un la foule ouverte- ment aux pieds, toutes peuvent et doivent s'elever centre lui; et en r^unissant leurs forces pour chatier cet ennemi com- mun, elles s'aoquitteront de leurs devoirs envers elles-m ernes et envers la societe humaine dont elles sent membres." Professor Sheldon Amos, in the part of his work on Juris- prudence which treats of Pub- lic International Law, carries very far the doctrine that it is the duty as weU as the right of all States to join in repressing every attack on that law. He says (p. 411) : — " If the Peace, and Prosperity, and the Moral Progress of the States of Eu- rope are directly dependent upon the Growth and Mainte- nance of International Law, there can be no more atrocious offence than for a State con- sciously to break the minutest of the clearly ascertained rules of this system of law. This being so, it should not be left to the Individual State which is directly injured, and which may only too probably happen at the moment to be weak, un- prepared, or disadvantageously situated, to punish the outrage. All the States that care for the maintenance of International Law should, severally or jointly, instantly denounce the act, and should take immediate measures for suspending public inter- course of every kind with the offending State in the event of reparation not being at once made, and of the act, if recur- rent, being desisted from. The difficulty in the way of such decisive measures is, partly, tie paucity of the rules of Inter- or INTERNATIONAL LAW. 47 strong. If this feeling were universal, or even if it were materially strengthened, the projects of compul- national Law that are so widely admitted and so clearly stated as to admit of a breach of them being simultaneously resented on all sides without delay, and partly, as has been already intimated, the want of genuine desire of all the leading States of Europe at the present time to support the existing orderly relations of the society of States. The thought rather is, on the occurrence of a flagrant breach of faith, or of a trespass on ter- ritory, or of an invasion of national security, as to what win be the immediate conse- quences to each particular State for good or evil of the act itself, and of the like ulterior conse- quences to which these may give rise. Instantly a sense of self-preservation turns aU the national consciousness inwards instead of outwards ; and, in the place of a noble competi- tion to be the first to support European order, even at perso- nal loss, there is a miserable bustling either to take part in a new war or else to edge out of any participation in it with as much saving of personal dignity as the unhappy cir- cumstances permit." A little further on (p. 456) the Pro- fessor enumerates the moral causes of general peace, the growth of which may be rea- sonably hoped for. Among these he places " A general and determined resolution among aU States to hold the breaking of a single clause in a treaty by any State as a crime deserving instant and condign punishment at the hands, not of the immediate sufferers alone but of all." It will have been seen that this goes far beyond the maxims of Grotius and Vattel, who re- quire the general interposition of civilized States against those who " immaniter violant jus naturae ant gentium," against the nation which " s'accoutume h fouler aux pieds les lois de la soeiete natureUe, qui attaque directement le bien et le salut de cette soeiete." This limita- tion of the Solonian maxim, when applied to International Law, seems reasonable, and cal- culated to promote the interests of peace and of general utility. A powerful State which took up arms for every supposed wrong of every other commu- nity, would probably become the bully and the curse of the world. Some offences, though real, may be so slight, that the injured party may be allowed " renunciare juri pro se nato ;" and the indirect Jus of the 48 FIRST PLATFOEM sory arbitration (which we so often read of) would become realities instead of being sneered at as reve- ries, and warfare, with its calamities and its abomi- nations, might be almost banished from the globe. Commonwealth of nations may be permitted to slumber for the sake of peace and quietness. Bluntschli and Heffter in their recent writings have given lists of the cases in which third States ought to take action against offenders. See Blunt- schli, ' Le Droit International Codifie,' p. 267 (a.d. 1874); and Heffter, ' Le Droit Inter- national de I'Europe,' p. 203. Some of the cases included in these lists seem to me to be open to much objection. OP INTBENATIONAL LAW. 49 CHAPTER III. Oir UTiLixiRiANisM: -AS A Test of Inibrnaiional Law. Utilitarianism the best test of Eeasoned Truth. — Nature of the modem Utilitarianism of Mill, Grote, and Austin. — Such Utilitarianism coextensive with the Honestum. — Justice and Conscience recognized by it. — The Intuitive School requires some external arguable standard for testing each man's self- sprung ideas. — Danger otherwise of the Protagorean heresy " Homo Mensura." — The true Utile matter of argument. — Recognized as characteristic of the Honestum in International Law by Burlamaqui, Vattel, and Story. — Acts to be regarded as instances of Eules. — Utilitarianism proves the benefit of the existence of International Law, and guards against hasty changes. 48. I DEVOTE this chapter to setting forth the true principle of modern Utilitarianism, and to showing that such Utilitarianism is the best practical test and maitariamsm standard of " Reasoned Truth"*, in questions of of EeMoned International Law. I do not say that Utilitarianism is the fountain-head of that Law. I hold the old- The mu not fashioned faith that Man has an innate Moral Sense, the sonesium, which teaches him the difference between Good and with it. Evil ; and t-hat he has a divinely implanted Con- science, which impels him to do good, and which reprimands him when he has done evU. I believe in the Honestum, not as an attribute of the Uiile, * See this phrase explained from Grote's ' Plato ' in note to page 34, supra. E 50 riEST PLATFOEM If you prove the true Utile, you prove the Honestum also. The Honestum, though always to be felt, cannot always be demon- strated. The Utile is alway suscep- tible of proof. Meaning of the new term " Utilitarian- but as superior to it in origin and in directive power. But the true Honestum and the true Utile must always coincide. If you demonstrate the Utile, you prove by implication the Honestum also*. Now the Honestum is in very many cases Quod nequeo monstrare ac sentio tantum ; but the Utile is always apt matter for observation, for exhibition, for comparison, for argumentative proof. It follows that for all practical purposes of teaching and of discussion it is best to take the principle of Utilitarianism as the test and standard of International Law. But it is all in all important first to ascertain, beyond the possibility of mistake, how many interests we consider to be included when the principle of Utilitarianism is appealed to. 49. Modern Utilitarianism involves very much more than the principle of the Utile which the * " Such is the nature of things that the ideas of Just, Honest, and Useful are natu- rally connected, and, as it ■were, inseparahle ; at least if we at- tend, as we ought to do, to real, general, and lasting utility. We may say that such an Utility becomes a kind of cha- racteristic, to distinguish -what is truly just or honest from what is so only in the erroneous opinions of men. There is a beautiful and judicious remark of Cicero (De Offlc. lib. 2. c. 3). ' The language and opinions of men are very wide,' says he, ' from truth and right reason in separating the honest from the useful, and in persuading themselves that some honest things are not useful, and that other things are useful but not honest. This is a dangerous notion to human life. Hence we see that Socrates detested those Sophists who first sepa- rated those two things in opi- nion, which in nature are really joined.'" — Burlamaqui on the Vrincijples of Natural Law, p. 221, Nugent's translation. OP INTERNATIONAL LAW. 51 best-known teachers* of the old school of Utility inculcated. According to them each man is to be * I do not mean that the more extended view of the Utility principle, which now prevails, is entirely recent. Bishop Cumberland's treatise, ' De legihus Katurse,' published in 1672, is an illustrious proof to the contrary. But his works, and the writings of certain others, who, before Austin, Mill, and Grote, taught the duty of regarding the interests of others, had little influence, compared with the effect pro- duced by the last-mentioned writers. Bentham is not always consistent with himself on this subject. The variations of his dogmas are severely, but not unjustly, commented on by Pro- fessor Birks in his ' Modern Utilitarianism ' (pp. 32, 151, and elsewhere). In Bentham's best-known works, such as his treatise on the Principles of Morals and Legislation, he makes each man's own plea- sure and pain each man's sole rules for action. At other times he taught legislators to regard " the greatest possible happiness of the greatest pos- sible number." In his frag- mentary work on 'International Law,' first published after Ben- tham's death by Sir John Bow- ring in 1838, Bentham cer- tainly treats " the common and equal utility of all mankind " as the object with respect to which a universal interna- tional code should be prepared. He gives in detail the following excellent utilitarian rules (part viii. of Works, p. 538). " 1. The iirst object of inter- national Law for a given nation. — Utility general, in so far as it consists in doing no injury to the other nations respectively, saving the regard which is proper to its own well-being. "2. Second object. — Utility general, in so far as it consists in doing the greatest good pos- sible to other nations, saving the regard which is proper to its own well-being. "3. Third object.— UtiHty general, in so far as it consists in the given nation not receiv- ing any injury from other na- tions respectively, saving the regard due to the well-being of these same nations. " 4. Fourth object.— Utility general, so far as it consists in such state receiving the greatest possible benefit from all other nations, savirig the regard due to the well-being of these nations. " It is to the two iormer ob- jects that the duties which the given nation ought to recognize may be referred. It is to the E 2 52 FIEST PLATFOEM guided solely by the consideration of what line of conduct seemed best for his own true personal ad- vantage. The champions of this old school (of the " Expediency " school, as it was generally called) and of the Intuitive school often made a battle- ground of the field of Jurisprudence ; but I do not think it necessary to review their conflicts. The Expediency Principle is now generally called the Principle of Utilitarianism, and it has changed much more than its name*. MiE'sdefini- 50. Mr. Johu Stuart Mill, who save this Philo- tionofUtiU- n ■ * i t t i tarianism. sophy its ucw appellation*, and who did more than any one else to quicken and to diffuse its spirit, declares it to mean the principle of acting so as to promote the happiness of all who are affected by our conduct. In Mr. Mill's own words f : — "The happi- two latter that the rights -which known of all the writers of it ought to claim may he re- the old Utile or Expediency ferred. But if these same school. Paley, in his Treatise rights shall in its opinion he on Moral Philosophy, wholly violated, in what manner, by ignores the existence of Con- what means, shall it apply or science, and the existence of a seek for satisfaction? There Moral Law independently of is no other mode hut that of Eevealed Eeligion. The title war. But war is an evil ; it which Coleridge gave to Ben- is even the complication of aU thamism may he justly ascribed other evils. to Paley's Philosophy. It is " 5. Fifth object. — In case of "The Gospel of Enlightened war, make such arrangements Selfishness." that the least possible evil may * Mill's 'Utilitarianism,'p. 8, be produced, consistent with note. the acquisition of the good f See ' Mill's Utilitarianism,' which is sought for." p. 24. Paley is probably the best- or INTBENATIONAL LAW. 53 ness which forms the Utilitarian doctrine of what is right in conduct, is not the agent's own happiness, but that of all concerned." Mr. Grote, in his work on Plato, where he refers arote's to the principle of Utility as necessary to complete the Platonic element of Virtue, says expressly : — " I mean that Principle, which points out happiness or unhappiness not merely of the agent himself, but also of others affected, or liable to be affected, by his behaviour"*. 51. I will quote another great writer of this school, John Austin's TVTTiA- 1-1- ■ T- doctrine as to Mr. .John Austm, who m his treatise on Jurispru- the utilitarian ^r 1*1X1 f*l nl ft dence bases the Utilitarian principle on Religion, and based upon thus describes it: — "The theory is this : — Inasmuch as the goodness of God is boundless and impartial, he designs the greatest happiness of all his sentient creatures. He wills that the aggregate of their enjoy- ments shall find no nearer limit than that which is inevitably set to it by their finite and imperfect nature. From the probable effects of our actions on the greatest happiness of all, or from the tendencies of human actions to increase or diminish that aggre- gate, we may infer the laws which he has given but has not expressed or revealed. " Now the tendency of a human action (as its ten- dency is thus understood) is the whole of its tendency — the sum of its probable consequences, in so far as they are important or material, as well as its direct consequences, in so far as any of its consequences may influence the general happiness. * Grote's ' Plato,' vol. iii. p. 456. 54 PIEST PLATFOEM " Trying to collect its tendency (as its tendency is thus understood), we must not consider the action as if it were single or insulated, but must look at the class of actions to which it belongs. The probable specific consequences of doing that single act, or of omitting that single act, are not the objects of the inquiry. The question to be solved is, If acts of the class were generally done, or generally forborne or omitted, what would be the probable effect on the general happiness or goodl"* These defini 52. Surely thcsc definitions of Utility would have satisfy Cicero. Satisfied even Cicero, the most determined adversary of the Utile as commonly understood in opposition to the Honestum. Cicero lays down as the most desirable of all propositions for general adoption, the maxim that the consideration of what is useful for the individual should be identified with the consideration of what is useful for the whole community. " Ergo unum debet esse omnibus propositum ut eadem sit utilitas uniuscujusque et universorum." — De Officiis, lib. 3. vi. 29 f. When this is done, the Utile and the Honestum must coincide : — " Nihil vero utile quod non idem honestum, nihil honestum quod non idem utile sit." 53. If the reader will compare the description of the Utilitarian Theory Just cited from Austin with the description of Natural Law quoted out of Grotius a few pages back|, he will see how closely they agree. * Austin's 'Jurisprudence,' by Burlamaqui, as copied in vol. i. p. 109. note to p. 50, supra. t And see the passage cited J At p. 14, supra. OP INTERNATIONAL LAW. 55 I will cite only one more description of Moral Law or Natural Law. It is a very able and correct one, though drawn by a writer who did not himself be- lieve in Moral or Natural Law as being all in all sufficient. The reader will see that this description closely agrees with the rules of conduct, or the Prin- ciples of Utility, as laid down by the recent great Utilitarian writers to whom I have been referring. Mr. Plumer Ward states thus the theory held by the Piumer vPard Tirici ii(>- •TvT IT °^ ^^^ Moral- Moral-oense school oi writers respecting JN atural Law Sense school. as revealed to man by his Moral Sense, and as enforced on him by his Conscience. "There is an universal principle of action in the hearts of all mankind, which is to seek happiness as social and benevolent beings. This may be drawn from a review of the internal frame or constitution of man, which leads him when unbiassed by his own particular interest to wish the happiness of all his fellow-creatures, to approve of virtuous actions when- ever he observes them, and to detest their opposite vices. This approbation and detestation are imposed on him by a certain internal great and regulating principle called conscience or reflection, which, though his passions may lead him often to rebel against its power, it is nevertheless impossible wholly to blind or destroy. " This great principle adjusting and correcting all inward movements ought to preside over and govern them. It is the instrument by which man is to be shown what his real nature leads him to ; and obli- gations to the practice of virtue deduced from the review tarians believe in sentiment of Justice. 56 PIEST PLATrOEM of nature are to be considered as an appeal to each par- ticular person's heart and natural conscience, as the external senses are appealed to for the proof of things cognizable by them. And thus, allowing the inward feeling shame, a man can as little doubt whether it was given him to prevent his doing shameful actions, as whether his eyes were given him to guide his steps." Mr. Ward here cites Bishop Butler, Sermon 6, 26. Modern mill- 54. The modem Utilitarians not only expound Utility on the enlarged principle recently mentioned (which makes the Utile coextensive with the Ilonestum), but they also expressly admit the existence of the Sentiment of Justice as a sentiment, " not arising from any thing which would commonly or correctly be called an idea of expediency." They state that its sources are two sentiments both in the highest degree natural, and which either are or resemble instincts,... the impulse of self-defence and the feehng of sympathy " *. Need of Stan- 55. But all this is mere sentiment. It is still to test^enti-" ueccssary to call in some moral principle to determine ™^°'" whether the sentiment is in each case to be acted on or curbed ; or, if acted on, how it is to be guided. The moral principle which alone can safely decide this is (according to the Utilitarians) the principle of General uti- general Utility. This it is which gives justice its lity is that i /> stiudard. moral force. 65 a. The modern Utilitarians admit the existence, and they speak in strong terms of the power and of the salutary influence of Conscience. Mr. Mill says : — • MUl, p. 76. OP INTEENATIONAL LAW. 57 " The internal sanction of duty, whatever our standard Eiistenoe of ri, !• 1,1 „,.. Conscience ad- 01 duty may be, is one and the same — a feelmg in mitted. our own mind, a pain more or less intense, attendant on violation of duty, which, in properly cultivated moral natures, rises in the more serious cases into shrinking from it as an impossibility. This feeling, when disinterested, and connecting itself with the pure idea of duty and not with some particular form of it, or with any of the merely accessory circumstances, is the essence of Conscience ; though in that complex phenomenon as it actually exists, the simple fact is in general all encrusted over with collateral associations, derived from sympathy, from love, and still more from fear : from all the forms of religious feeling, from the recollections of childhood and of all our past life ; from self-esteem, desire of the esteem of others, and occasionally even self-abasement. This extreme complication is, I apprehend, the origin of the sort of mystical character, which by a tendency of the human mind, of which there are many other examples, is apt to be attributed to the idea of moral obligation, and which leads people to believe that the idea cannot possibly attach itself to any other objects than those which, by a supposed mysterious law, are found in our present experience to excite it. Its binding force, however, consists in the existence of a mass of feeling, which must be broken through in order to do what violates our standard of right ; and which, if we do nevertheless violate that standard, will probably have to be encountered afterwards in the form of remorse. Whatever theory we have of the 58 PIEST PLATPOEM nature or origin of Conscience, this is what essentially constitutes it"*. These admis- 56. So long as the existence and the authority of ca°?y sufficient, the moral sense (or sense of Justice) and of Conscience are thus recognized, there can be no mischief in bringing our projected rules of conduct to the test of Utility, always renaembering that "the happiness, which forms the UtiUtarian standard of what is right in conduct, is not merely the agent's own happiness, but the happiness of all concerned." 57. On the other hand, I believe that even the most transcendental moralists of the Intuitive school (to which I profess my strong adherence) must admit Clear necessity the neccssity of somc general test, by which each man of some Test. _ may try the accuracy of his own perceptions of the Innate Moral sense, and by which he may also ascertain whether the Conscience which guides him is free from illusion and imperfection. * Mill, ' Utilitarianism,' p. is that we feel complacency, 41. Mr. D. Dudley Field in Ms remorse, etc. "Whether this ' Compte Kendu ' (dated Oct. be an original law or a prin- 25, 1873) of the Proceedings of ciple necessarily produced in the Society, " pour la Eeforme every human being by the et la codification des Lois Inter- operation of circumstances on nationales," said as truly as the original elements of the eloquently of the spirit of Inter- human mind, is a question of national Jurisprudence, that it great curiosity in science, but is "La conscience Juridique of no importance in practical du monde civilise." I quote morals. The law or the prin- the words in the Prench, as ciple is equally universal, sent to me by Mr. Pield him- equally indelible, equally part self. Sir James Mackintosh of the design of the Deity." says : — " A part of the actual — Vol. ii. Memoirs, p. 365. constitution of human nature OP INTEENATIONAL LAW. 59 57a. The fact that people may be thoroughly con- scientious, and act conscientiously in such a manner as to work much wrong and misery, is a fact suffi- ciently obvious in the affairs of private life ; but it is conscience not still more strongly manifested in public matters which "''^°^'^''^®- make up the events of history. Take for instance the numerous sovereigns and statesmen who have been persecutors for the sake (as they believed) of religion. The single example of Philip II. of Spain is enough. It has drawn from our historian Froude (vol. xix. p. 313) the just observation that "the most cruel curse which can afflict the world is the tyranny of ignorant conscientiousness." 58. In truth, if we hold that each man is to govern his conduct solely by the standards which he finds within himself, without at the same time striving to secure the adjustment of those standards, we are tainting ourselves with the old Protagorean Arch- EistoffaUmg heresy, which has been for ages the dread and the Protagorean abhorrence of Intuitive Moralists. We should be '"^^^^' adopting the doctrine, " that every man is his own standard of right and wrong, of truth and falsehood," the " TIavTOV fierpwv avOpwiroc" *, the ITofnO men- The Homo Menswra. * See the Theeetetus of Plato, individual conscience too high." p. 151 E. Professor Birks weU " The general question in mo- observes (page 77) that the rah is not what men do feel, hut true fault of the Intuitive what they ought to feel Moralists is not their recog- In its details it must depend nition of a final and ultimate largely on materials borrowed principle in Morals of an In- from the actual experiences of tuitive kind. " It is that they human life." exalt the imperfect decisions of 60 PIEST PLATFOEM sura in the short Latin formula by which the tenet is best known to Ethical disputants. 59. Men may know all this — they may be aware of their own imperfections and liabilities to error, and they may strive to the utmost for instruction from Need of the above and from around; and they may earnestly seek so uisitum to aid to gam the Lumen acquisitum, which Bishop oanderson innatum of in his treatise on the Conscience distinguishes from onsraenee. ^j^^ Lumeu Innatum. Men may do all this, and yet may differ widely from each other as to the con- clusions of their moral sense, and as to the voices of their consciences. But if they are Moralists, they must agree with Cicero in holding that in all their thoughts, words, and actions they should seek after the Honestum — that the Honestum and the true Utile are coincident, and that the true Utile con- sists in studying the general welfare of all. Here, The true utue then, they may find a test to which they may bring- to be made the ^ . . . . J J a test of each their various opiuions, SO as to be able to consider to the Hones, profitably how far the policy which each advocates is calculated to promote in reasonable degree the good of all who are to be affected by it. The policy, which does not satisfy this test, may have been prompted by Conscience ; but it must in that case have proceeded from a mistaken and imperfect Conscience ; and therefore a conscientious man will not seek to enforce it. Search for the 60. There is also this important practical advan- true Utile may .... iiii be conducted t§ge in trying theories and rules by tne test of Utili- ment. " tarianism, that it is the only possible way in which we can hope to make truth prevail over error by calm or INTEENATIONAL LAW. 61 reasoning and by peaceable discussion. But if one man says "My moral sense of the eternal principles of "Eternal Justice tells me that such and such a policy or mea- noUn a^em- sure is right," and if another man says "My moral of^g^mt™ sense of the Eternal principles tells me just the con- trary," it is impossible that either of these two men can bring the other over to his own opinions by argu- ments addressed to the understanding, or that by the mutual use of arguments they can arrive at any modi- fied form of opinion. They may scold and they may fight, but they cannot reason. But if these two men will agree to test the controverted policy by examining whether, if acted on as a rule, such a measure would or would not promote the general welfare of all affected by it, the field for dispassionate inquiry into facts, for comprehensive induction and for accurate deduction is at once opened. There is a fair possi- bihty of an honest conversion ; there is still greater possibility of a salutary and peaceful compromise *. 61. I will yet further justify myself for using the Utilitarian test for discussing International Law, by the example of three great modern writers in this department of Jurisprudence, each of whom is gene- rally and rightly regarded as a Moralist. Burlamaqui, The true uuie in a passage which I have already cited, points out the°(Sstin- ^ the true Utile as the characteristic whereby we fMterUticof' , 1 , 7- , A TT s the Hones- may recognize the true Justum and Monestum. tumhj^ur- Vattel in his ' Essai sur le droit naturel' says: — ^"vatte'i; " L'homme est d'une nature sociable ; la societe lui est naturelle, elle lui est meme necessaire pom- passer * See Austin, vol. i. p. 122. 62 FIEST PLATFOEM sa vie heureusemeut. De la vient que le judicieux Grotius a pris cette sociabilite de I'homme pour la fondemeiit du droit naturel. . . . Chaque iudividu a pour motif general et premier son utilite propre ; et ce motif fait I'obligation dont il est susceptible. Mais la societe lui etant utile et meme necessaire, et cette societe ne ponvant subsister sans des lois ou des regies generales, observees par tous les membres ; il est oblige en vertu de sa propre utilite a les observer. II ne doit meme pas balancer a leur sacrifier dans des cas particuliers un avantage present ; parce que ce sont elles qui lui assurent la paisible jouissance de tous ses autres biens "*. by Story. Mr. Justice Story, at paragraph 43 of his great work on the Conflict of Laws, says : — " The true foundation on which the administration of International Law must rest, is that the rules, which are to govern, are those which arise from mutual interest and utility, from a sense of the inconveniences which arise from a con- trary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return." Actions are to 62. I must again remind studcnts of International as isolated Lawof the great importanceof attending, when we apply but as in- ' the tcst of Utilitarianism to a proposed law, or pohcy, Rules. or act of State, to Austin's caution that we must not consider the action or measure as if it were single and isolated, but that we must resolve the following ques- tion — What would be " the probable effect on the general happiness or good, if similar acts, forbearances, * Sects. 23 and 24. OP INTERNATIONAL LAW. 63 or omissions were general or frequent ? " Austin (in Austin. his second Lecture) gives strong reasons (which de- serve every student's careful attention) for stating the case thus. And, indeed, before his time, Paley Paiey. (though limiting the view of utility to a view of what might be most expedient for the agent personally) very clearly demonstrated that in all considerations of utility general rules and general consequences are to be regarded. The first chapter of the second book of his ' Moral Philosophy,' illustrates this by examples, which are stated with all his characteristic clearness and strong common sense. 63. Any one who has been satisfied by this chap- importance of ter as to the sufficiency of Utilitarianism as a Test in of utmtariau- Jurisprudence, will not think that the space bestowed i^interna" ^ on it is disproportionate. It will help us through many difficulties. Having gained this light for our path, and this staff' for our steps, we will proceed to the complex region of Positive International Law. But I will first remark that we can prove by Utilita- it proves the rianism the not immaterial fact that the common- existence of wealth of Civilized States, and the human race in general, are benefited by the existence of International Law. I will do this briefly by appealing (in Mr. Senior's words) to " The general desire of mankind that the mutual conduct of nations should be governed or at least directed by recognized rules, that there should be some principle to be invoked by the weak, and yielded without humiliation by the powerful." This desire, as he truly says, has brought into existence a whole literature on International Juris- Buch law. 64 PIEST PLATFOEM prudence. This International-Law literature has partly- created and partly been created by the public opinion of nations ; for (again to use Mr. Senior's words) " it is clear that there exists among nations a public Public opinion. Unhappily the public opinion of nations has often been miserably misinformed, and miserably weak ; but with all its imperfections it has been one of the principal aids to modern civilization, and we trust that it is destined to perform services still more important and still more extensive." 64. It is needless to argue this point further, I proceed to a Jural maxim which may be regarded as a corollary of the last one. I take it to be sound doc- trine, having regard to the welfare of all affected, that where a principle or a rule of International Law has been once fairly recognized and established, it should Changes in uot be abrogated or changed without grave and urgent Law not to be causc ; and abrogation or change should not take place ^ ^^y- vpithout the consent of all, or of nearly all, those who are affected by it. In other words, a change of Law is in itself an evil ; and this is to so great a degree a truism, that it re- quires no argument ; but it forms nevertheless a rule of great practical importance, and one that is too often disregarded. OF INTERNATIONAL LAW. 65 CHAPTER IV. On International Positive Law. Characteristics of Positive Law. — ^Definition. — Lord Bacon's Defi- nition. — "Sanction" explained. — The Sanction of Interna- tional Law is War. — Positive Law may fall short of or extend beyond Moral Law. — Proper Jural meaning of the epithet " Positive." — Objections to the reality of International Positive Law stated and answered. — Advice as to mastering Definitions. 65. While examining the distinctions between Moral or Natural Law and Positive Law, we were obliged to consider briefly the characteristics of the latter* ; but we must now ascertain them more completely and carefully. 66. Positive International Law means collectively Characteristics . i-iT 1 of Positive the system of definite rules which have been recog- Law. nized and established as practical rules of conduct between States, and the observance of which may be enforced by War. 66 A. A Positive Law means a Law in the precise Definition. narrow sense in which alone many modern writers wish the word " Law " to be used by Jurists. It means a rule of conduct prescribed by a human supe- rior, who has the power to inflict physical evil if his command is disregarded. In other words, it is a rule of human commandment, having the sanction of Phy- sical Force. * See pp. 12, ] 5, supra. 66 FIEST PLATPOEM 67. This last definition was suggested by the passage in Lord Bacon's ' Aphorisms ' *, in which he Lord Bacon's says, " Lex nilAl aliud quam regula imperans." In iar. adopting this definition, I tkke the word Imperans^ to imply not only that the Law-giver speaks as one having authority, but also that peculiar authority The im^perium which the Romaus termed Imperium — that he is of the Law- . . _ . giver when a Supcrior haviug fuU Imperium annexed to his Juns- the Law is . . . Lex-Law. dictiou, and having therefore the power, both thp actual and the rightful power, of using the Sword for the correction of wrong- doers |. Physical- 68. This is the " Sanction of Physical Force," Force Sanction i-i-ii • • i-it it of Lex-Law which, vo. the precise sense m which i am now deaung ^Law. "* with Positive Law, as contradistinguished from Moral Law, I take to be an essential attribute of a Positive Law. To state the matter shortly. Moral Law has only the sanctions of religion and of moral force; Positive Law has the additional sanction of physical force. This distinction (whether assented to or not) will be at once understood by those who are even * Bacon's Works, vol. i. aphorisms which precede and Ellis and Spedding's edit. p. 822. follow it, shows that Bacon t The common criticism on used the words " regula impe- Bacon's terminology, that he rans " with a purport not iden- ought to have said " regula tical with that of which I summi imperantis " instead of found them suggestive when " regula imperans " hardly re- separately considered, quires notice ; hut I cannot % " Merum est Imperium altogether claim the authority habere gladii petestatem ad of Bacon in support of the defl- animadvertendum in facinoro- nition which I have given. An sos homines. Mixtum est Im- examination of the whole apho- perium cui etiam Jurisdictio rism (the 83rd) from which this inest." — Ulpian, Digest. 2. tit. 1. passage is taken, and of the sect. 3. OP INTEENATIONAL LAW. 67 moderately familiar with the phraseology of Jurispru- dence ; but the word " Sanction " may require expla- inaccurate nation to some who might otherwise suppose it to be thrworf"^'^* employed in its popular meaning of " Approval." l^^popXiy In this, as in many other cases, our popular usage of "^®^' words has receded more and more widely from that which was their original, and still is their technical meaning. This fact is of itself no slight proof of the general neglect of the study of Jurisprudence in Eng- land during the last two centuries. 69. "Sanction" means primarily that which en- Proper mean- sures, or is designed to ensure, the observance of a ^sanction." compact, of a promise, or of a command*, as, for example, the religious rites by which contracting parties bind themselves to keep a treaty, the oath by which a witness pledges himself to speak the truth, or the punishment by the threat of which he who * " ' Sanctio ' in Latin was the people a persuasion that used to signiiy the act of hind- such or such a mode of conduct ing, and by a common gram- would be rendered obligatory matical transition, any thing upon a man by the force of which serves to bind a man — what I call the religious sanc- to wit, to the observance of tion (i. e. he would be made to such or such a mode of conduct, suffer by the interposition of According to a Latin gram- some superior being, if he faUed marian, the import of the word to observe the mode of conduct is derived by rather a far- in question), certain ceremonies fetched process (such as those were contrived by the priests, commonly are, and in a great in the course of which cere- measure indeed must be, by monies the blood of the victim which intellectual ideas are was made use of." — ^Bentham's derived from sensible ones), note to the third chapter of his from the word «an^t(?s, blood, 'Principles of Morals and Legis- because among the Eomans, lation.' with a view to inculcate into v2 68 FIEST PLATFOEM Usage of Ro- man Lawyers. gives a command tries to prevent a breach of his commandment. In its amplest sense it may mean, 1st, a cause or any source of feehng which induces a man to keep any rule of conduct; and 3ndly, any feeling which acts as such an inducement. Sanction used 70. But though Several feelings, besides the fear of specially in ■ i , i i j. • i? sense of Penal punishmeut, may and do operate as sanctions or a rule of conduct, the term " Sanction " has been and is used by most jurists as peculiarly denoting the penal consequences assigned to the breach of a Law ; that is to say, they use it when they are dealing with a specific Positive Law, and not with the general prin- ciples and maxims of Moral Law only. This was so much the case with the Roman Lawyers, that they called a Law, which provided no penalty for the breach of it, a law of imperfect obligation. There is also much force in some remarks which (with the variation of two words) I borrow from Mr. Austin on this point * : — " It is the power and the purpose of inflicting eventual evil [rather than] the power and the purpose of imparting eventual good, which gives to the expression of a wish the name of a command." The definite practical evil of punishment infiicted or assured by the employment of physical force is the most obvious, the most common, and the most effec- tive of the sanctions that can be devised by men. It is generally understood in Jural language to be specially denoted by the simple phrase, " The Sanction Other autho- rities and reasons. * Province of Jurisprudence, vol. i. p. 93. Mr. Austin uses here and italicizes the word "not." I have adapted in order to adopt. OP INTEENATIONAL LAW. 69 of a Law." In the internal administration of Justice in eacli State, Law-suits * and prosecutions apply this Sanction. In the administration of Justice between State and State, this Sanction is applied by War. 71. Positive Law may do and frequently does, in respect of its subject, nothing more than enounce and enjoin some principle or maxim of Moral Law. For example. Positive Law generally enforces the maxim Pacta sunt servanda, which was pointed out in a former chapter as a cardinal Moral Principle. But Positive Law very often passes over things dealt with by Moral Law. On the other hand, it may extend (and its frequent great part of Positive Law does extend) to the for- Natural Law. bidding or commanding of acts which by mere natu- ral Law are held to be indifferent. Acts of this kind are neither bad nor good in themselves; but they acquire a character of evil or of good when they thus become the subjects of Positive Legislation. 72. The word "Positive" has a meaning in com- PaUadous •!• -I e -\^ • popular usage mon speech which would be mischievously lallacious, of the epithet . " Positive " if we allowed it to operate on our minds when we are speaking of Positive Law as contradistinguished from Natural Law. The addition of the epithet " Positive," when we talk of a fact, generally means that the fact is one of peculiar and superior certainty. But when its proper the epithet " Positive " is appUed by Jurists to a Law, ing. it merely means that the Law in question has been * Not only Criminal Law, but who execute tte process of the Civil Law also has its penal CivU Court; and if he resists sanction. A man's person, his that process he makes himself lands, and his chattels are liable to be tried and punished liable to seizure by the officers as a criminal. 70 FIEST PLATFORM Objections to the reality of International Positive Law. Answer to these objec- tions. There is a Su- perior who commands Intemational Law. Reality and siifSuient cer- tainty of the Penal Sanc- tions of Inter- national Law. established as a Law to be practically enforced by men among men. The sense of the misconception, which is apt to arise from the popular sense of the word " Positive " led Raleigh, when speaking of Positive Laws, to use also the cautionary phrase, "Laws imposed, or of addition " *. Dr. Whewell f adds to " Positive " the explicatory epithet " Instituted." 73. Objections have been made to the reality of International Positive Law on two grounds. First, it is alleged that no International Law is the com- mand of a certain definite superior to a person or persons in subjection to him; and, secondly, it is alleged that the party by whom International Law is to be enforced, is never determinate and. assignable J. 74. We may answer, first, with regard to the source whence the Law emanated, that although Sovereign States acknowledge no one common Superior Law- giver from whom they collectively receive imperative Law, yet they can and do make up a community capable of establishing Laws which shall be binding on each member of the community. In this sense the community at large is a sovereign Lawgiver to each member of the community. And further, with re- gard to the supposed difficulty as to who will apply the Sanction of International Positive I^aw, we may pro- * History of the "World, part 1. book iv. ch. iv. sect. 5. t In Ms translation of Gro- tius. t See Austin's ' Province of Jurisprudence,' vol. i. passim, and especially at p. 231. OF INTEENATIONAL LAW. 71 ceed to observe that when the Community of States agrees and ordains that certain rules of International conduct are to be upheld by force, and that redress for breach of them is to be obtained by arms, those rules become BegulcE Imperantes, in the sense in which I have explained the word Imperans * ; and they acquire the penal sanction which is necessary for a Positive Law. The fear of War is something more than an ordinary Moral sanction. It is the sanction of that peculiar kind of Moral Force, which is " Physical Force in Perspectke •'' and it gives ample sanction to a Law f . 7 5 . But it is said that when rules of conduct between Frequent un- States are broken, it is frequently uncertain who will theappiieation be the Belligerent executive of (so-called) International sanction to the Law, or whether there will be any BelUgerent execu- * See p. 66, sivprci. mula of the Roman Fecials, t " Whenever the sanction furnishes the principle. ' War,' of a rule of conduct is Physical said the great Athenian orator, — in other words, whenever the in the declining days of Athens, sanction is fear of injury to ' is the mode of proceeding person or property, the rule against those who cannot be may be properly classed under restrained by a judicial pro- the head of Law, as distin- ceeding ; for judicial proceed- guished from Morality, the ings are of force against those sanctions of which are only to who are sensible of their in- be discovered in the human ability to oppose them ; but conscience. against those who are or think "It may be asked accordingly themselves of equal strength, what are the physical sanctions War is the proceeding ; yet to the rules which regulate the this too, in order that it may be intercourse of nations ? It was justified, must be carried on one of the main objects of the with no less scrupulous care system of Grotius to supply an than a judicial proceeding.' " — answer to this question. The Travers Twiss, Law of Nations, Eight of War, purum piumque pref. vii. duellum, according to the for- breach of a munioip Law. 72 PIEST PLATFOEM Uncertainty of a Sanction's application does not dis- prove its exist- ence. Notice of an objection sometimes made to ad- mission of terms and ideas of Crimi- nal Jurispru- dence into International Law. tive at all. The reply is, that even so in the internal affairs of a State it is often uncertain who will be the Litigant Plaintiff, or whether there will be any Liti- gant Plaintiff at all against a dishonest man ; and it is also often uncertain who will prosecute, or whether any one will prosecute, when a crime has been com- mitted. This last remark is especially applicable with regard to countries, such, as England, in which there is no determinate Public Prosecutor. Yet no Jurist ever has denied or would deny that England has laws, and laws with penal sanctions in the strictest sense of the words. The truth is, that the degrees of certainty or uncertainty as to who may set in motion municipal laws between members of the same State, or Interna- tional Laws between different States, affect only the degree of the efficacy of the Penal Sanction in each case. They cannot negative its existence. 76. I may remark here, that other Jurists have maintained that States cannot be the subjects of Criminal Law, and that it is inaccurate to speak of the infliction of punishment upon a State. But, in reality, these opinions must either arise from mistaken ideas about Criminal Law in general, and about the true objects of judicial punishment, or they have no better basis than a mere quibble as to the use of words. The ablest of the writers to whom I allude, admits that the great purpose of International Law is to maintain right against national wrong-doers — that a State may be injured and insulted by another, may seek redress by war, or may require the deposition of the ruler, or the exile of the representative of another OF INTEENATIONAL LAW. 73 State, or may deprive a State of its territory wholly or in part*. But if a State can, as a State, do wrong, if it can, as a State, be guilty of insult and injury, it certainly can, as a State, do that which cannot be distinguished from crime by any substantial difference. And if a State can, for having done such things, be lawfully afflicted with hostilities, with fire, famine, and slaughter, and the other dread concomitants of warfare, if it can, further, for having done such things, be lawfully enfeebled by being deprived of part of its territory, or even lawfully destroyed by the whole of its territory being taken, it seems difficult not to consider that the offending State is, in such cases, treated as a criminal, and punished accor- dingly. 77. If, indeed, it is supposed that the infliction of Caution as to -n-i •/-^••iT • 1 1 ^"^^ general Punishment m L/rimmal Law is, and ought to be, theories of Pe- ordained for the mere sake of gratifying Revenge, and tion. that the pains suffered by an offender at the hands of the ministers of justice are in themselves the ultimate objects of justice, and not its means for the accom- plishment of ulterior purposes, then it must be con- ceded that the terms " criminal " and '• punishment " are inapplicable in International Law. But it is erroneous to regard Criminal Law, and its procedure generally, in such a lightf. The proper objects of * PhiUimore, vol. i. pp. 4, about Corporations being in- 5, 6. capable of malice, and there- t The theory of a State not fore not criminally punishable, being the subject of punish- Our English Courts have, of ment has probably proceeded late years, very wisely followed from some old legal theories a different course in their de- 74 riEST PLATFOEM Proper theory of Penal Legis- lation. Applicable to International as well as to Municipal Law. To admit the Sanction of Physical Force in Interna- tional Law for purposes ana- logous to Civil process is to admit it for penal purposes also. punishment are (besides the compelUng, in cases where it is possible, such restitution or compensation as may redress the mischief which the wrongful act in question has caused to the party who has been immediately injured), to secure the future safety of the members of a community generally by, 1st, in- ducing the offender himself to abstain from offending again ; 2ndly, by making it physically difficult or impossible for him to offend again; and Srdly, by deterring others from similarly offending. All these apply to forcible and afflictive judicial procedure against a State, as well as to forcible and afflictive judicial procedure against an individual. 78. The writers to whom I allude would, I believe, admit the applicability in International Law of forcible process for the recovery of satisfaction, or for preventing injury, or for any thing else which they cisions as to the liability of corporate bodies. See Lord Campbell's judgment in the case of Whitfield v. the South- Eastern Railway Company, in vol. X. of Ellis and Blackburn's Eeports, and see the other cases there cited in the argu- ments and the judgment. If the theory as to the pro- per purposes of punishment, which I have upheld in the text, be objected to as too ex- clusively utilitarian, and if it be said that one end of punish- ment is to appease the indig- nation of good men at the triumph or the escape of evil- doers, I would not deny the rightful existence of such a feeling, or the propriety of re- garding it in penal legislation. Such a feeling, or even "the strong antipathy of good to bad" (as Pope phrases it), differs widely from a desire for the "invidiosa solatia" of gloating over the personal pangs of a punished criminal. Eut the same honest indigna- tion and the same just anti- pathy would be felt towards a State that systematically and insolently outraged the rights of other States. OF INTEENATIONAL LAW. 75 would consider analogous to the process of Civil Law in municipal jurisprudence. But it is impossible to frame and maintain consistently in contentions be- tween States any such distinction as that between the criminal and civil branches of a single State's legal system. Even in municipal law it is hard to keep to such a boundary line ; and the process of civil judi- cature would be of little value, were it not for the coexistence and ever-ready support of the strong arm of Criminal Law. If debtors could successfully oppose violent resistance to sheriff's officers without making themselves liable to indictment, the creditors' writ would be an unprofitable piece of parchment. T have not thought it necessary, when speaking of the Sanction of Physical Force in International Posi- tive Law, to discriminate between the various purposes for which it may be served, as simply compensatory, as simply preventive, as simply puni- tive, or as compounded of two or more of these three. There is yet one other matter to be noticed with Laws are com- • 1 T mands; butaa reference to the use or special terms m these discus- Eight impUes XT 1 *ii "n** T )3' ^'^tyj and sions. It has been said that " Positive Law is a Positire Duty Rule of conduct commanded by a Superior : and, mand/thede- . 11 1-Tj.i-ir 1 claration of a indeed, every law involves the idea oi a command. Right, or of a unless it be merely a law which repeals a former law. seifbe'^^a But many rules, which are Positive Law as well as ''"'■ Moral Law, will be quoted and stated in these pages, not in the express form of commands, but as asser- tions of Duties, or as declarations of Rights. It will save time and repetition if the reader is at once re- 76 PIEST PLATFOEM minded that every declaration of a legal Right existing in one person, involves the assertion of there being a legal duty in some other person or persons to respect that Right, and that every assertion of a legal duty involves a command to observe that duty. 79. It is generally found useful to divide Inter- national Positive Lavr into two branches : — 1st, Con- ventional Law, which means the Law made by express convention or agreement on a particular subject. This may be best considered when we speak of Treaties. The 2nd branch is by far the most complex and important, and is styled '• Consuetudi- nary Law." It wiU form the subject of the next chapter. Note to Students. Beginners in the study of International Law are recommended before they proceed beyond these first four chapters to ascertain carefully that they thoroughly and accurately understand and remember the explana- tions which have been given of the meanings of the terms " International ^ " Sovereign State," " Law," " Moral Law," " Natural Law," " Laws of Imperfect Obligation," " Expletory and Attributive Jtistice," " Comity of Nations," "Positive Law," "Sanction," and " Conventional Law." OP INTEENATIONAL LAW. 77 CHAPTER V. On Constjetubinakx Istieknationax PosirryE Law, and its Peoops abd Atjthoeitibs as Positive Law. True Consuetudinary Law, how to be ascertained. — Writings of Great Publicists, their value, names of principal. — Decisions of Prize Courts and other International tribunals. — Boards of Arbitration. — The Eoman Law. — Modern International Law mainly buUt up out of Eoman. — Treaties, Manifestoes, Ordi- nances, Proclamations, &c. — Value of Treaties as indirect evidence. — Need of study of History, especially Modem History. — Histories of International Law. — Discrepancies of Publicists' opinions, and of other authorities. — Few cases. — Need of ge- neral principles. — Value here of Moral International Law. — Special advantage of Utilitarian Principle. 80. According to the high authority of Lord Sto- Lord stoweiis well, a Court which administers International Law trueConsue- must look to " the legal standard of morality found " "^^ in the Law of Nations, as fixed and evidenced by general and ancient and admitted practice, by treaties, and by the general tenour of the laws and ordinances, and the general transactions of civilized states " *. 81. This description shows how large a portion of this law consists of Jus Consuetudinarium and is not founded on any express compact, but on the Great extent of implied will of the great commonwealth of nations nary Law. that such and such rules shall exist. Placuit Gen- tibus is the phrase which Grotius employs on * Judgment in case of Le Louis, 2 Dodson's Eep. 249. 78 FIEST PLATFOEM Means for as- CBrfcaining it. 1st. Writings of great Put- licists. Poison's re- marks on their value. such occasions ; and Lord Stowell, in another cele- brated judgment, has adopted and ratified that ex- pression *. " It has been the pecuhar duty of the Tribunals of the Law of Nations to investigate with precision the Jus Consuetudinarium, and to separate the fluc- tuating institutions of particular nations from the established practice of mankind" f. 82. What means are there for conducting this investigation ? Where are we to find the proofs that any particular portion of International Law has been made International Law by the implied consent of Civilized States ? 83. The first and most obvious source of infor- mation which we can have recourse to, will be found in the numerous books, which we now possess, written by eminent jurists on the subject of International Law. The nature and the extent of the authority which these text-writers possess, is tersely and admirably explained by one of our countrymen, Mr. Poison J. " Generally, it is to the works of eminent Jurists that the nations of Europe appeal as authorities in the determination of their mutual differences. Our own country has been distinguished by the deference she has on all occasions paid to these enhghtened and venerable expositors of International Jurisprudence," When we speak of them as possessing authority, we * The Heinrich and Maria, ' Law of Nations,' vol. i. p. 124. 4 Rob. 54. See Dr. Travers f Travers Twiss, p. 123. Twiss's comments on this in Ids J P. 14. OE INTEENATIONAL LAW. 79 employ the term in the sense in which it is used by Livy in his character of Evander. " Evander turn ea, auctoritate magis quam imperio regebat loca" (Liv. i. 7). " A learned writer," says Harrington in his ' Oceana/ " may have authority though he has no power." Civi- hzed America fully recognizes the importance of this source of information as to International Law. Chan- cellor Kent says, " In cases where the principal Jurists chancellor agree, the presumption will be very great in favour of the soHdity of their maxims ; and no civilized nation that does not arrogantly set all law and justice at de- fiance, will venture to disregard the uniform sense of the established writers on International Law " *. 84. Grotius is the patriarch of Publicists. Puffen- Names of some dorf and Bynkoershoeck have long ranked high, pubiiciste. ^ Perhaps the writer who has for a century and a half been most extensively studied, most popular, and therefore very influential, is Vattel. There are many more Jural Leaders of the 17th and 18th centuries, whose works are deservedly conned over by the student, and respected by the statesman and the judge ; but here I mention those only whose au- thority has been most extensive. During the present century, and especially during the last twenty years, a very great number of Jurists have written on Inter- * 1 Kent, 18. Bluntsohli says science comble de nombreuses of this subject : — "La science lacunes en developpant et en du Droit ne possSde q'une au- proclamant, aveo I'aide et I'au- torite morale; mais I'absence torite de la raison, les prin- de legislation Internationale cipes destines a regler les augmente la valeur des sources rapports internationaux " (p. seoondaires de notre Droit. La 61). 80 FIEST PLATPOEM national Law, and have acquired so much reputation that their opinions have been respectfully cited and examined by those who have had to decide on very serious questions between two of the greatest nations of the civilized world : I allude to the pro- ceedings in the recent Geneva Arbitration *. 85. I do not feel it to be part of my present duty to frame schemes of reading, or to recommend par- ticular books to students ; but having named the best- known and most influential text-writers on Inter- Eceentemi- national Law who wrote before the 19th century, I nent Pub- . _ '' licists. may add that among the more recent publications on the subject, in which the clearest and fullest informa- tion is given, are : — the works of the American authors Kent, Wheaton, Lawrence, Halleckf , Lieber, Woolsey, and Dudley Field ; of the French, Ortolan ; of the German, HeflFter and Bluntschli ; and of the English jurists, Phillimore, Mountagu Bernard, and Travers Twiss. * The following are some of f General HaUeck collected the modern writers on Inter- the materials of his work on national Law there cited and International Law for his own commented on ; — guidance (as he states in his English. Phillimore, Eeddie, preface) "during the war be- Twiss. tween the United States and American. Kent, Dana, Mexico, when he was serving Wheaton, Story. on the staff of the Commander French. HautefeuUle, Orto- of the Pacific squadron, and as Ian, Masse, Jacquemyns, Secretary of State of California, ItalioM. Avio, Gola, GaU- and was often required to give ani, Azuni, Sandona, Casa- opinions on questions of Inter- nova, national law growing out of German. Heffter, Bluntschli, the operations of the war." Gessner. A book thus written by a Spanish. Calvo. practical soldier and statesman, OF INTERNATIONAL LAW. 81 86. The fact that the consent of Nations has been given to particular rules and maxims so as to make them Positive International haw, " is also evidenced by the decisions of Prize Courts, and of the tribunals Decisions of of International Law sitting in each country " *, and who was also a man. of learn- ing and industry, is, as might he expected, characterized by clearness and strong common sense. He never shirks a diffi- culty. The only fault of the volume is that it has no index. I class Lieber among Ameri- can Jurists because it was in the United States that he found his country, his home, and his language for more than the last fifty years of his life. Lieber was born at Berlin in 1788. He served as a volun- teer in Bliioher's army in the German war of liberation 1813- 14 ; and he served again against the French in 1815, and was severely wounded at Waterloo. In 1820 his avowed love for constitutional liberty brought on him the suspicions of the Prussian Government, which was then an organ of the doc- trines of the Holy AUiance. He escaped to Greece, and took part for a time with the Greeks in their war for independence. He then settled in America. He was for several years Pro- fessor of History, and of Poli- tical Philosophy and Economy in the State College of South Carolina. In 1857 he was ap- pointed Professor of History and Political Science in Co- lumbia College, New York. Among his works are a trea- tise on 'Political Ethics,' one on 'Civil Liberty and Self-Go - vernment,' and a smaller publication ' On Nationalism and Internationalism.' During the American Civil War he drew up, at the request of Mr. Stanton, the United States Minister of War, a paper of "Instructions for the American Army in the field." This very valuable statement of the Laws of War to be observed by in- vading armies, will be found often referred to in the present volume. America and the civilized world in general have lately had to deplore, in his death, the loss of one whom the French jurist, M. Laboulage, has truly styled " Une des figures les plus originales parmi les juriscon- sultes de notre temps." * 1 Phillimore, 58. 82 FIEST PLATPOEM of International Boards of Arbitration *. A Prize Court is a court not merely of the country in which it sits, but a court of the Law of Nations. Such was the exalted and the true ideal of these tribunals which was declared by Lord Stowell f ; and by reason of the enlightened view which he thus took of his duties, as well as on account of his profound learning, keen discernment, and brilliant accomplishments. Lord Stowell's judgments have been, and are, received on both sides of the Atlantic " with very great respect, and are presumptive, though not conclusive, evidence of the law in the given case"|. Similar deference is paid in Europe as well as in America to the judg- ment of the great Jurists and Judges of the United States, Story, Kent, and Marshall. And it is not merely Prize Courts or the Courts of Appeal from them, which are looked up to as authorities. Many important questions of International Law come in peace-time as well as in time of war, before the tri- bunals of civilized countries : and the expositions of this Law, which are thus obtained, are observed throughout the civilized world always with respect, but of course with an amount of respect proportioned in each case to the dignity of the court, to the character of the judges constituting it, to the con- currence or diversity of their opinions, to the fulness * Poison, 15 ; Wheaton, in the cases of ' The Maria,' 1 Elem. 57, English version. Eobinson, p. 350, and 'The Ee- t See in 1 Phillimore, p. covery,' 6 Dodson, 348. 52, citations of Lord Stowell's ^ 1 Kent, 81. eloquent words on this subject or INTERNATIONAL LAW. 83 of the discussion, and to the learning and wisdom displayed in the judgment itself. 87. Similar respect, similarly varying in degree, is Boards ofArbi- paid to the decisions on general principles of the mixed Boards of Arbitration, which are from time to time appointed by States for the amicable settlement of their differences. 88. The Publicists and the Judges whose writings importance of -,-... 1 1 I* /> ■-!• Komau Law. and decisions we have been speaking oi as guides m the study of our subject, profess repeatedly their own deep obligations to the Roman Law as "an authority to direct and guide the reason of States in the adjust- ment of their mutual relations." According to Philli- Phiiumore on more, " The Roman Law may be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, historically speaking, the actual basis." In other passages which have been adopted and repeated by the American writer. General Halleck*, the same andHaiieok. Jurist says, " It will generally be found that the defi- ciencies of precedent, usage, and express international authority may be supphed from the rich treasury of the Boman Civil Law. Indeed the greater number of controversies between States would find, a just solution in this comprehensive system of practical equity, which furnishes principles of universal juris- prudence, apphcable alike to individuals and to States. " Although," says Wiseman, " the Civil Law was not Wiseman, intended by the Eoman legislators to reach or direct beyondthe bounds of the Roman Empire, . . . . ,yet, * Page 55. g2 84 FIRST PLATFORM since there is a strong stream of natural reason continu- ally flowing in the channel of the Roman laws, and that there is no affair or business known to any part of the world now, which the Roman empire dealt not in before, and their justice still provided for, what should hinder but that, the nature of affairs being the same, the same general rules of justice and dictates of reason may be as fitly accommodated to foreigners dealing with one another (as it is clear that they have been by the civilians of all ages), as to those of one and the same nation, when one common reason is a guide and a light to them both ? for it is not the persons, but the case, and the reason therein, that is considerable altogether." The same English civilian further ob- serves, " And moreover by, as it were, a general consent of nations, there is an appealing to, and a resting in the voice and judgment of the Civil Law in these cases between nation and nation. The reason whereof is, because any thing that is irrational, unnatural, absurd, partial, unjust, immodest, ignoble, treacherous, or unfaithful, that law abhorreth ; and for that it is the most perfect image and representation of nature, and of the equity and reason nature pre- scribes to humane actions, that was ever yet presented or set forth to the world in a law"*. Modem Inter- 89. I have quoted Phillimore's observation that nationalJuris- n • - n i ■ i -r^ ' prudence was historically Speaking, the Roman Law is the actual actually based -i • n i t • i t • onKoman basis 01 modcm international Jurisprudence. Very valuable proofs of this fact, and of the processes by * Wiseman's ' Excellencies Phillimore, pp. 31, 33 ; and of the Civil Law,' cited in 1 see Halleck, p. 55. OF INTERNATIONAL LAW. 85 which it was wrought, will be found in the fourth chapter of Sir Henry Maine's ' Treatise on Ancient Sir Henry Law.' He points out how Grotius, and the Publicists who followed him, adopted their idea of a universal Moral Law, Jus Naturm, or Jus Naturale, from the Roman Jurisconsults, who themselves had acquired it from the old Stoic Philosophy. Having adopted from the Antonine Jurisconsults the position that the Jus Gentium and the Jus Natures were identical, Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature an authority which would never perhaps have been claimed for it, if " Law of Nations " had not in that age been an ambiguous expression. They laid down unreservedly that Natural Law is the Code of States, and " thus put in operation a process, which has con- tinued almost dovra to our own day, the process of engrafting on the international system rules, which are supposed to have been evolved from the unassisted contemplation of the conception of Nature. There is, Doctrine of .■ 1 • i the Equality too, one consequence or immense practical importance of states based to mankind, which, though not unknown during the Law. early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the society of nations is governed by Natural Law, the atoms which com- pose it must be absolutely equal. Men under the sceptre of Nature are all equal; and accordingly commonwealths are equal, if the international State be one of nature. The proposition that independent communities, however different in size and power, are 86 riEST PLATPOEM all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the pohtical tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all, if International Law had not been entirely derived from the majestic claims of Nature by the Publicists, who wrote after the revival of letters"*. Sir Henry Maine proceeds to show " how small a proportion the additions made to International Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium." He points out how modern Publicists have simply transcribed the part of the Roman Law which treats of the modes of acquiring property jure gentium, and how those parts of the international system which refer to ownership or dominion, its nature, its limitations, the modes of acquiring and securing it, are pure Roman Property Law. He demonstrates also the Roman origin of the theory, " that a State's sovereignty must have in it the element of territoriality ;" that is to say, it is always associated with the proprietorship of a limited portion of the earth's surface. Treaties, an- 90. Another class of repositories of means of know- cient Mani- . - r i • festoes, and ledge 01 this suDject cousists of Treaties, ancient Papers. Ordinances, State Proclamations, Manifestoes, and the like. A Treaty is, primarily, direct evidence of an agreement between two or more States to do or not to do certain things ; but besides this, it may have * Maine's ' Ancient Law,' p. 100. OP INTEENATIONAL LAW. 87 indirectly a very important and extensive operation as indirect effect evidencing principles and rules of positive Interna- EvWenee'or tional Law. This proof may be given not merely by ^^^''^l^' its express covenants, but even more strongly by its recitals ; and also by its very phraseology, as showing the consent of nations to adopt a particular interpre- tation of a particular term*. Of course, in matters like these it is desirable to show the consensus of as many Treaties as possible ; but even a single Treaty may give weighty testimony. Por " there are certain great and cardinal treaties, in which, after long and bloody wars, a readjustment of International relations has taken place ; and which are therefore more espe- cially valuable, both from the magnitude and import- ance of their provisions, which have necessitated a recurrence to, and a restatement of the fundamental principles of International Law, and also from the fact that frequently the greater number of European States, and lately some American and even Asiatic communities, have been parties thereto"!. 91. The Proclamations, Manifestoes, and Ordi- Prociama- nances of Princes and other ruling powers in States festoes, &c. on subjects arising out of their relations with other States, are materials from which inferences as to the existence of an International Consuetudo may be drawn ; and there are ancient collections of Maritime usages which give evidence of very early general practice, and, thereby, of very early consuetudinary law as to many subjects of permanent importance J. * 1 Phinimore, 45. t Travers Twiss, vol. i. t Md. 47. pp. 125, 127. FIEST PLATrOEM Historical study indis- pensable. Modern His- tory from Thirty Tears' War specially important. History of Treaties by Koch and SchoeU. Heeren's Manual. Histories of International Law. 92. Perhaps the study of these documents, and also that of Treaties, may be regarded as forming part of the study of history, — a study which is abso- lutely essential for the acquisition of clear knowledge and for the just appreciation of International Law. All History is instructive ; but some portions of it are far more so, especially to the Jurist, than other portions. Modern History, from the close of the Thirty Years' War by the Peace of Westphalia, down to the present time, must be thoroughly known by him ; and he can hardly devote too much attention to the study of the " Cardinal Treaties," which have been already alluded to in a quotation from Phillimore. Koch's History (continued and edited by SchoeU) of Treaties of Peace between the European Powers, beginning with the treaties of Osnabruck and Munster (called gene- rally the Peace of Westphalia), is a work of very great value to the International Lawyer, as well as to the Historian and Diplomatist. It will be better understood and valued after a careful preliminary study of Heeren's ' Manual of the History of the Political System of Europe and its Colonies, from the close of the 15th Century.' A complete and very ably written list of the most important treaties since the Reformation, with brief statements of their provi- sions, is given by Mr. Woolsey in an Appendix to his ' Introduction to the Study of International Law'*. 93. Expositions of International Law, such as the present book aspires to be, usually include an his- torical account of the rise and progress of Interna- * Page371, edit, of 1874. OP INTERNATIONAL LAW. 89 tional Law. To examine the subject thus historically is a very advantageous method of learning it ; and the careful reader of Wheaton's ' History of International Law,' supplemented by the excellent Commentary which Mr. Lawrence is now gradually publishing, can- not fail to be greatly benefited. But it is best to take the history of this law as a distinct line of study, and not to mix it up with our preliminary survey of the present fabric of this department of Jurisprudence. If, however, any student of our subject in this last- mentioned form (the form in which it is considered here) feel that he would comprehend it more clearly, if he had some general knowledge as to the traces in early history of the existence of a law or laws between independent nations, and of the gradual development of such law or laws, he will find a brief but clear sketch, such as he desires, in Sir Robert Phillimore's Preface ; to which he should add the remarks of the same writer at page 16 of his first volume, as to the extent to which such a law was recognized by the Greeks and Romans. The same volume contains also a valuable appendix, in which this subject, so far as regards the Romans, is examined more in detail*. * I would only venture on almost entirely compiled from the additional remark that the treatises written by the great paucity of passages professing Jurists who flourished during to set out International Law, the era of the Antonines, or which we notice in the Corpus during the reigns of those Juris, ought not to surprise emperors who very nearly pre- us, if we remember from what ceded or succeeded the Anto- sources the Institutes, Digest, nines. When these Jurists g,nd Code of Justinian were were writing, Eome had been, directly taken. They were from one to two centuries, sole 90 FIBST PLATPOEM Dirersity of opinionB of PubKcists. 94. To sum up an answer to the practical question of "Where is the modern student or politician to seek information as to practical Positive Inter- national liawV- as -he may mistress, not indeed of the ■whole world, but of almost the whole civilized world, as it was then known to the Eomans. Parthia is a mere nominal ex- ception. The case had once been widely different. But the numerous independent states of Italy, with which the young Roman Commonwealth grap- pled, the still more important states and empires round the further coasts of the Mediter- ranean and its connected seas, with which the matured Eoman Commonwealth maintained dealings of peace and war, had all perished by the time of the commencement of the Imperial reign of Augustus Csesar. As Eanke has said, " The self- governing powers that had filled the old world had bent one aftet another before the rising power of Eome, and had vanished. The earth seemed left void of independent na- tions." Gaius, Modestinus, Pa- pinian, Ulpian, and their con- temporaries, who, like them, wrote on Eoman Law for the Eomans of the empire, could have had no motive, such as Coruncanius, Scsevola, and other Jurisconsults of the Eepublio must have had, for teaching be told that his readiest that " praestabilem seientiam in foederibus, pactionibus, con- ditionibus populorum, regum, exterarum nationum, in uni- verso denique belli jure et pa- ds,'' which was regarded as the fitting accomplishment of a Eoman Statesman down to the last age of the Common- wealth, as may be seen in Cicero's Oration " Pro Lege Manilla." But this eminent lore, this " PraestabiUs Scien- tia " of these elder Jurists was allowed to faU into oblivion by the practical Eomans, when it ceased to be practically im- portant. What has been written here is by no means inconsistent with what has been quoted elsewhere in the text, as to the extent to which Grotius and others built up modern Inter- national Law out of Eoman Law. They did this by trans- ferring to Nations what the Eoman Jurists had written about Individuals. If Julius Csesar's project of forming a code of Law had been Completed in his time, we should have found in it a great deal of direct International Law, such as Pompeius was celebrated for knowing. OF INTEENATIONAIi LAW. 91 and primary source of instruction will be found in Text- writers of general reputation. But Doctor es Juris as well as Doctores Medicines frequently dis- agree ; and if the reader wishes to judge for him- self, he must have recourse to the other means of knowledge that have been mentioned, to the study of history, of treaties, and of Roman Law. And yet all these, even if they all are comprehended, are not all-in-all sufficient. Difficulties and discrepancies will Frequent diffi- .■ . ciilties of the often beset the comparer of even the best authorities ; subject. and the course of actual events will from time to time New oases, bring forward new questions for decision, as to which no express precedent or guide can be found, and which therefore must be viewed, if possible, by analogy, and should be regulated by general principle. It is Need of Qene- here that a sound knowledge and a full sensitive ral Principle. appreciation of Moral International Law is preemi- Value here of nently valuable. He whose head and heart are national Law. thoroughly imbued with the canon of Montesquieu, with the three Ulpianic Rules, with the rule as to keeping Faith, and with the Solonian maxim, which have been set forth and commented on in a preceding chapter*, will hardly be at a loss for a right spirit of Interpretation when ambiguities are to be dealt with, or for true Ideal types of excellence when novelties it is Herme- .. . Ill Ai 11 neutio for pre- m Positive Law must be moulded. Above all, a sent Positive Compass, by which he may both discern for himself caiToTfuture and may demonstrate to others the best lines of action, will be found in the true principle of Utili- Special value . of Utilitariaa tarianism, that of considering how any proposed law Principle. * See p. 44, supra. 93 PIEST PLATFOEM of. conduct will, if observed as a law, promote or thwart the good of all who will be affected by it. In a very memorable State Paper of the last century, which foreign as well as English Jurists have con- curred in eulogizing*. The Law of Nations is stated to be " founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage." " Convenience and the reason of the thing " describe the Utilitarian principle. * Eeply of the British, to the Prussian Government, 1753. OP INTEENATIONAL LAW. 93 CHAPTER VI. What constitutes a State ? Tndependence — what kind and amount of is necessary. — Case of native Indian Princes. — Organization necessary. — Parti- ular form of it immaterial. — Changes immaterial. — Temporary anarchy. — Numbers. — Territoriality. — Equality of States. — Leading Powers. — The Pentarchy. — The Monroe Doctrine. — Titles. — Maritime Honours. — How far International Law applies to non-Christian and to imperfectly civilized com- munities. 95. It has already been mentioned in this treatise Mainattri- that for the purposes of International Law, 1st, a state recapitu- State means a Sovereign State — that is to say, an p^aragrapho Independent Political Society; 2ndly, that a State * **^" must have its own organized Government ; 3rd, that the form of such Government is for purposes of International Law immaterial ; and 4th, that a State is a Moral Agent. It wiU be convenient now, before we classify the rules of International Positive Law, to examine the attributes of a State a little more minutely. First, then, Of Independence. 96. What kind and amount of Independence must Question a Political Society possess in order that it may rank what amount as a Sovereign State ? This may be best answered influ°enof° by examining the converse proposition, " How far sute oTtte must a State be under the influence of another State soTOrei'^tf? for it to lose the character of a Sovereign State ? " 94 FIRST PLATFOEM Indirect Influence not enough to destroy State- sovereignty. Titular Inde- pendence no sovereignty, if coupled with actual sub- jection. Native Princes of India. 97. Every State, however povperful, is to some extent influenced by tlie authority of other States. Regard to pubUc opinion, and the wish not to create a general inimical feeling against itself, will almost always have some practical operation. But it is evident that this does not make a great and powerful State, such as Russia, Germany, France, or England, cease to be independent and Sovereign. On the other hand, there may be a large territory with a dense and wealthy population, accustomed to obey in all matters of internal Government their native prince ; and that prince may keep up the most exalted style and sumptuous pomp of royalty ; he may levy his own troops, and may nominate the holders of ojEces, both civil and military ; but yet this Prince may live under the perpetual control of a foreign Ruler, who will not allow him to make peace or war, or to enter into diplomatic relations with third parties. Moreover this foreign Ruler may system- atically watch the general character of the native Prince's government, and may have the will and the power to depose him if he grossly misconducts him- self, the foreign ruler being the judge both of the existence and extent of such misgovernment. 98. Such is the condition of the native Princes of India. We all see clearly in them and in their subjects not independent political communities, which are Sovereign States in the eye of International Law, but mere subordinate members of the larger and paramount Political Society, the true Sovereign State, the British Empire. OP INTEENATIONAL LAW. 95 99. But, on the other hand, so long as a State retains in fact as well as in theory the right of making treaties and of entering generally into diplo- matic relations with other States, and the right of making peace and war at its own discretion, and without being controlled by any foreign authority, such State wiU not cease to be regarded as a Sove- reign State for purposes of International Law, though corruption, bribery, and fear of force may have made the State (that is to say, those who administer its government) subservient to a foreign power, as Spain was to France seventy years ago, during the adminis- tration of Godoy. A State may even profess feudal vassalage to a foreigner, as Naples was the professed vassal of the Holy See from the eleventh century to 1818* ; a State may avow itself to be under foreign protection ; it may even pay tribute ; but if it holds its own as to making war and making peace, and as to general negotiations and diplomacy, the State is not, as a State, out of the pale of International Law f. * See "Wheaton, ' Elemerts,' the Holy Alliance. He says : — vol. i. p. 49. " A feeble State holds its itide- t In Austin's ' Jurispru- pendence precariously, or at the dence,' pp. 201-208, will be wiU of the powerful states to found some very valuable re- whose aggressions it is ob- marks on the amount and Jiabit noxious. And since it is ob- of obedience which one State noxious to their aggressions, it must render to another, before and the bulk of its subjects it loses the character of an render obedience to commands Independent State. He takes which they [the powerful fo- the instance of the kingdom of reign states] occasionally ex- Saxony and its relations to the press or intimate. Such, for Foreign Sovereigns who, at the instance, is the position of the time when Austin wrote, formed Saxon Government and its sub- 96 riEST PLATFOEM 100. It has been mentioned that a State must, in order to be recognized as such Internationally, have its own organized Government. jects in respect to the con- spiring sovereigns who form the Holy Alliance. But since the commands and the obedience are comparatively few and rare, they are not sufficient to con- stitute the relation of sove- reignty and subjection between, the powerful states and the feeble state. In spite of these commands, and in spite of that obedience, the feeble state is sovereign or independent." General Halleck, p. 66, points to a stronger instance in the case of the city of Cracow, as it existed for a time. He says : — " The city of Cracow in Poland, with its territory, was declared by the Treaty of Vienna in 1815 to be a perpetually free, independent, and neutral State, under the protection of Russia, Austria, and Prussia. Although its councils were habitually in- fluenced by these great powers, it was nevertheless regarded in International Law as a Sove- reign State ; and when, by the Convention of 1846, it was an- nexed to the empire of Austria, the Governments of Great Bri- tain, France, and Sweden pro- tested against the proceeding as a violation of the Act of 1815, by which it was recog- nized as an independent State." With regard to Tribute and Vassalage, he adds : — " Tribute like that paid by the European maritime powers [of the Medi- terranean] to the Barbary States does not necessarily affect the sovereignty of the tributary ; nor does the acknowledgment of a nominal vassalage or feudal dependence, like that of Naples to the Papal See prior to 1818, necessarily impair the sove- reignty of the Vassal State. Its position in the eye of inter- national law is not necessarily affected by its connexions of this kind with others. The law regards the fact of sove- reignty rather than the mere name by which it is desig- nated." This last -mentioned is the same principle. Sir R. PhiUi- more inculcates it emphatically. " The proper and strict test to apply wUl be the capacity of the Protected state to negotiate, to make peace or war with other States, irrespectively of the wUl of its protector. If it retain that capacity, whatever may be the influence of the protector, the protected State must be considered as an in- dependent member of the Euro- pean Commonwealth. " It must, however, retain OF INTEENATIONAL LAW. 97 We have already considered the principle that the Community must be free from the rule of any foreign this capaeity de facto, as well as de jure ; and it is necessary to make this observation be- cause, at no distant period of history, an attempt was made to evade the application of this principle of law, by retaining theoretically the name when the substance was practically and notoriously lost. The Swiss Cantons and the States forming the Confederation of the Rhine, to say nothing of other coun- tries, were nominally free and independent when their armies were under French officers, their cabinets under French ministers, and their whole con- stitution entirely subject and subservient to their French ruler and protector Napoleon. They were therefore justly considered by International Law as provinces of France, and were denied the rights of independent States during the continuance of this state of subserviency." Sir R. Phillimore adds, p. 93, that " States which cannot stand this test, which cannot nego- tiate, declare peace or war with other countries without the con- sent of their protector, are only mediately and in a subordinate degree considered as subjects of International Law. In war they share the fortunes of their pro- tectors ; but they are for certain purposes, and under certain limitations, dealt with as inde- pendent moral persons, espe- cially in questions of Comity, touching the persons and pro- perty of their own subjects in a foreign country, or of strangers in their own territory, and with respect to other matters of the like kind. States of this description are sometimes, but with admitted impropriety of expression, called semi-sovereign (demi-souve- rain, halbsouverain)." As to the case of the com- munity of Cherokee Indians, who live in a territory of their own within the boundaries of Georgia, who have made nume- rous treaties with the United States and regulated their own affairs, see Kent's ' Commen- taries,' vol. iii. 382, and Wheaton, ' Elements,' vol. i. p. 50. It appears that, before the "War of Independence, the British authorities interfered with the self-government of these Cherokees in one matter only ; but that one matter was a very important one. The British took care not to allow the residence or visits of any foreign agents, who might draw the Cherokees into alliances with powers that were the H 98 FIRST PLATPOEM body ; we must now go a little further, and we shall see that not only a State must be free from govern- ment by others, but it must govern itself*. A horde of men in a condition of anarchy, or having merely such organization as is available for destructiveness (like that of pirates or brigands), cannot.be a State, however free it may be from all extraneous control. Cicero's maxim as to this (quoted by Sir R. Philli- more, vol. i. p. 78) is generally recognized : " Populus autem non omnis hominum coetus, quoquo modo con- gregatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus"^. In Austin's ' Juris- prudence'!, it is pointed out that in order for a given enemies or rivals of England. It may be safely assumed that the United States would exer- cise the same caution and pre- rogative, if it seemed necessary for their interests. Under such circumstances, the Cherokee Commnnity cannot be regarded as a Sovereign State, however honourably and conscientiously the United States may respect its rights as to ownership of territory, legislation, and other internal matters. * In the case of Trisarri v. Clement (2 C. P. 225, cited in Taylor 'On Evidence,' vol. i. p. 3), States are defined as " Associations formed for mu- tual defence, supporting their own independence, making laws, and having courts of Justice." t De Eepublica, lib. 1. p. 25. Again, in the 4th Phi- lippic, when speaking of the kind of enemies who are en- titled to the rights of "War, Cicero defines such an enemy as being one " qui habet rem- publicam, curiam, cerarium, consensum et concordiam civium ; rationem aliquam, si res ita tulisset, pacis et foederis " (see Wheaton, 'Elements,' vol. i. p. 50). Wheaton applies this test to the Barbaresque Powers. See, in Lawrence, ' Commen- taire sur Wheaton,' t. 3. p. 132, the remarks of the American Statesman, Mr. Marcy, on the character of the community of Grey town in 1854. t Vol. i. pp. 227-230. OP INTEENATIONAL LAW. 99 society to form a society political, habitual " obedience must be rendered by the bulk of its members to one and the same determinate person, or determinate body of persons. Unless habitual obedience be ren- dered by the bulk of its members and be rendered to one and the same superior, the given society is either in a state of nature, or is split into two or more independent political societies." 101. What effects a civil war, which so splits up a State, has on the relations of other States with it, is a difficult and important question to be considered hereafter, when we come to consider the rights and duties of Belligerents and Neutrals. For the present we wiU pass on to another maxim, as to what con- stitutes a State. 102. The form of a State's government is, in the eye of International Law, absolutely immaterial. In other words, so long as a community has a political organization or Government, which the bulk of its members obey, and so long as this organized Govern- ment has a visible appointed chief organ for the pur- poses of communication with other States, other States have nothing to do with the kind of internal political organization which is to exist in the State in question, 103. So many eminent writers on our subject have clogged their pages with disquisitions about Demo- cracy, Aristocracy, Monarchy, and their relative qualities and influences, and we all have such a tendency to carry our party politics into our literary and scientific pursuits, that the student of Interna- international tional Law cannot be too speedily or too strongly nothing^odo H 2 100 PIEST PLATFOEM with the com- warned that all such topics are foreign to his subject, parative merits . or demerits of and that, if they are introduced, they must bring Aristocracy, with them confusion and error. International Law or of any ' affects the external life of a State, and that only*. e°er.^ ^ ^ Evcn as the external life of an individual person is betwe'enThe made up of that pcrson's dealings, either friendly or thfinterna? inimical, with other persons, so the external life of a intemrtio'r^"' State is made up of the State's dealings, either Law affects p^^jg^ ^^ hostile, with othcr States. Each, the State external hfe. j^jj(j ^]jg individual pcrson, has also its internal life, which is made up of its constitutional and private affairs within the immediate sphere of home. All questions about how a State is governed, as to its being a Monarchical State, or an Aristocratic State, or a Democratic State, are questions that affect its in- ternal life only, and are not within the pale of Inter- The sympathi- national Law. It is not meant by this to require that zing of human i i • i beings in one the humau bcmgs who are members of one State, country with ii- • t • i-rp ^ t-i human beings should view With inditierence the political and social country as to conditiou of human beings who are members of matters may another State. Like will cling to like ; and men eSst^Midmay who are zealots for a political principle in their own affect a State's l3,ncl> ^iU Sympathize with its champions or its martyrs severaUatfui ^"^ another land. Such considerations also may fairly towards^"^"^ influence the pohcy, which a State will observe in its But'^nter-****' ^^temal dealings, when more than one course may be and oUi'a^^'^ taken by it without any violation of International Law^. orM.teT^r*''^ But fionc of thcsc tilings can give any International nullified, or suohThings.''' * I'rivate International this principle, will be con- Law, which is a seeming, and sidered in the latter part of only a seeming exception to this treatise. OF INTEENATIONAL LAW. 101 claim, or can diminish any International obligation. The State, that comes into contact with other States, is bound to observe the great rules of International Law towards them with equal exactness and loyalty, whe- ther their political institutions differ most widely from its own, or whether they resemble them closely. As we have seen, every State must, in order to be recog- nized as such, have its own organized government, and every such government must have its appointed chief organ. Whether this chief organ be an Emperor, or a King, or a Sultan, or a President, or a Consul, or a states regard Senate, or a popular Assembly, or any combination of ven^ng organs ruling individuals or ruling bodies, that organ, as the L^hepract^^i State's chief organ, is to foreign bodies the visible and tionsof states, practical Impersonation of the State, with which they, naUMmi through their own respective chief organs, communi- P"'"?"^®"- cate, and the acts of which are, in the eye of Inter- national Law, the acts of the whole community. The person or the persons which is or are the chief execu- tive organ of a State in fact, must, for International Forintema- purposes, be always assumed to be the chief executive poses every orgau as of right ; and no inquiry into the rightfulness fef^lsa. of its or their authority is, for International purposes, dTjure!^^^ admissible. The common security of States requires the rigid maintenance of this principle. Without it, no treaty could be made or enforced until each con- Practical ne- tracting party had satisfied itself as to the mode in nUe. which the internal politics of the other were regu- lated, and there could be, practically, no general system of International rules, on which each member of the great Commonwealth of Nations could rely 102 PIEST PLATFOEM amid their infinite variety of political and social in- stitutions, and amid the frequent internal changes to which each is individually liable *. A change in 104. The uext maxim, that a change in the form government of of government of a State does not vary the State's not va^ the International rights or duties, is intimately connected nationafrights with the last maxim, that the form of government of or duties. ^ g^^^g ^g immaterial for purposes of International Law. It is, indeed, a mere corollary on that pro- This a coroi- positiou ; nor would it be given here as a distinct lary on the last . -n ■, , n , • n i (the third) maxim, II it wcrc not that we occasionally near Attempta Vehement zealots for the glory and aggrandizement of m e to eny ^j^^-^ particular country assert, when that country has revolutionized its government, that it ought not to be any longer bound by the compacts which an expelled dynasty has made with other States. But it is self- evident that if once it were to be conceded that a State, by changing its form of government, could change its external rights and obligations, we must * Bluntschli says, (' Le Droit de stabilite, il est considere International Codifie,' p. 62), comma un iltat par le droit " Le Droit International or- international." ganise les divers ifitats, mo- President "Woolsey's remarks narchiques on republicains, re- on this subject are as follows : — presentatifs ou absolus, grands " A State may sustain relations ou petits, en associations juri- to other States, and perform its diquesethumanitaires. Iln'ex- ofS.ces generally under any form ige pas UQC constitution speeiale, of government. The Law of ou une certaine etendue de Nations preserves an entire in territoire. Partout ou un diiference to Constitutions, so peuple, administre par un gou- long as they do not prevent vernment, est devenu, sur un fulfilment of obligations. Every territoire determine, un tout, State is in its eye legitimate." offirant des garanties suffisantes — P. 54. OP INTEENATIONAL LAW. 103 reverse the last maxim which we have been examining ; and we must then consider the form of a State's government to be most material for purposes of International Law. Suppose, for example, that Eng- The mieohief land had a treaty with 1 ranee, which was concluded result if such when France was under a Monarchy. If France, by oeeded. making herself a Republic or an Empire, acquired an International right to repudiate that treaty, England, and other States similarly circumstanced as to France, would have a deep International interest (an Inter- national interest of right and obligation, and not a mere human interest of sympathy or dislike) in every change of the French government. Indeed the strict consequence would be, that France would commit an International wrong, if she changed her own form of government, unless she did so with the consent of every Foreign Power with which she had any treaty existing. Work such a principle out, and it will be seen how it would apply to ourselves. We should then have no right to alter materially our Parlia- mentary system, to make it more or less Democratic or Aristocratic, without the leave of all our allies. Innumerable other instances might be suggested, all of which would demonstrate the mischievous absurdity of holding that a State's rightful relations with other States can be varied by the State varying its own institutions. The State's visible supreme chief ex- ecutive organ may change its form, may change its name, may change its inner nature ; but to Foreign States it is, for purposes of International Law, one and the same, and its authority to act in behalf of the 104 FIE8T PLATPOEM whole State is one and the same, so long as the State continues to have any chief organ of government at all — that is to say, so long as it continues to be such a community as is recognized by International Law as constituting a State. Authorities on iQ5_ Mauv authorities on this subiect might be this subject. •' j o cited. Among them are the dicta of D'Aguesseau*, Montesquieuf , Grotius$,Heineccius, Vattel^, Bynkers- hoek, Puffendorf, Wheaton and Kent, as quoted by Sir R. PhUlimore in his valuable chapter VII. (vol. i. p. 148), where this doctrine is fully enounced, and by Heffter || . 106. General Halleck's observations^ on this sub- ject are as follows : — " As a general rule a mere change in the form of government, or in the person of the ruler, does not aflPect the duties and obligations of a State toward foreign na- tions. All treaties of amity, commerce, andreal alliance, remain in force precisely as if no intervening change had taken place, except in cases where the compact relates to the form of government itself, or to the per- son of the ruler in the nature of a guarantee. Public debts, whether due to or from the revolutionized State, are neither cancelled nor affected by any change in the constitution or internal government of a State. So, also, of its public domain and right of property. * i. 493, s. 4. § Lib. 2. c. xii. s. 191 ; t Esprit des Lois, i. xxvi. c. xiv. s. 215. cxx. II Droit International, s. 24. t Lib. 2. c. ix. s. 8 ; Lib. 2. % Page 77. c. xvi. s. 16. or INTEENATIONAL LAW. 105 If a revolution be successful and a new constitution be established, the public domain and public property pass to the new government. The State, on the other hand, remains responsible for the wrongs done to the government or subjects of another State, notwith- standing any intermediate change in the form of its government or in the persons of its rulers. These results flow necessarily from the principle that the identity of a State is preserved, notwithstanding the accidental changes in its internal constitution." 107. The distinction adverted to in this passage between Real Treaties and Personal Treaties* wiU be discussed in a subsequent chapter on the subject of treaties. I will here quote one more passage from a recent writer on the very important point which we have been considering — ^important practically as well as theoreticallyf. Bluntschli says (pp. 73 & 74), 'L'Etat BiuntsoUi's , A J -i • i i- 1 1 comments on reste la meme personne en droit international, lors the continuing meme que sa constitution est tantot monarchique, tan- Tstete «/ ° tot republicaine, ou qu'il est, pendant une periode, ^thstoXig gouverne constitutionnellement, et apres cela autocra- S^es. tiquement. Ses droits et ses obligations vis-a-vis des autres etats n'en subsistent pas moins. Le maintien des traites ne depend pas du maintien des gouverne- ments qui les ont conclus. * * Le principe * See as to them Vattel, 1. 2. disavo-w the Treaty of Viemia, 0. 12, s. 183 et seq. Sir K. as not binding upon the new PhiUimore, vol. ii. p. 71 et French Eepublic of February seq. ; and Martens, p. 54. 1848, because it had been t See Sir E. PhilUmore's re- made by a Monarchical Go- marks (vol. i. p. 152) on the vemment. attempt made by Lamartine to 106 FIEST PLATFOEM moderne a ete formule par les cinq grandes puissances a Londres, le 19 Fevrier 1831, ' D'apres ce principe d'un ordre superieur les traites ne perdent pas leur puissance, quels que soient les changements qui inter- viennent dans I'organisation interieure despeuples.' " In another part of the same work he very forcibly illustrates the proposition that " the State is repre- sented ad externos by him ' Qui actu regit^ qui a de fait la direction des affaires. Celui qui arrive au gouvernement d'un pays, est, par suite, considere comme I'organe et le representant de I'etat. On peut conclure avec un usurpateur victorieux et reconnu par son pays des traites obligatoires." He adds the not unimportant remark, that " De la circonstance qu'un etat entre en relations regulieres avec le gouverne- ment etabli de fait dans un autre etat, il ne resulte pas que le premier reconnaisse la legalite du second. On indique seulement par la que on reconnait a ce gouvernement I'autorite et les moyens necessaires pour SB faire respecter et pour agir avec efficacite." This doctrine that International Law recognizes all rulers de facto (with the qualification that no moral appro- bation of the means whereby their rule has been acquired is implied by such recognition), has been Even the admitted by even the Papacy. " L'Eglise Romaine, ■I^Hw^de malgre ses tendances legitimes actuelles, a reconnu la ""''' meme maxime. Le Pape Gregoire XVI. a declare solennellement, en Aout 1831, que c'etait un besoin et un ancien usage de I'Eglise, d'entrer en rapports avec ceux ' qui Actu summd rerum potiuntur-.' mais en meme temps qu'elle n'entendait pas recon- OF IJSTTEENATIONAL LAW. 107 naitre par la la legitimite des pouvoirs de ces der- niers "*. * Bluntsehli, pp. 112, 113. Mr. Dudley Field, at page 11 of his ' International Code,' Ar- ticle 19, lays down the rule as follows : — " A change in the form of its government, or in its dynasty, does not affect the continuity of existence of a nation or its property ; nor does it affect its rights or obli- gations in respect to other nations or their members ; ex- cept so far as such rights or obligations are necessarily de- pendent on the continuance of the old form of government or dynasty." His comment on his rule runs thus : — "This rule is especially important in its appKcation to national debts. The only questions of real diifi- culty arising out of the general rule are those which spring out of insurrections. The case of 'The King of the Two Sicilies v. Wilcox' (1 Simon's Eeports, N. S. 301), establishes the principle that where a de facto government has, as such, obtained possession of property, the Government which dis- places it succeeds to all its rights." With regard to the exception introduced by him at the end of his rule, Mr. Dudley Field says, "For in- stance, a compact between two republics to protect each other in a republican form of govern- ment would be terminated by the final establishment of a Mo- narchy in one or both." With respect to M. Blunt- schli's observations, that Fo- reign Powers, by entering into diplomatic relations with a new Government, are not held to express any approval of its origin or character, it is to be noticed that such recognition of mere existence is always eagerly sought for by the new authorities, and as earnestly deprecated by the partisans of the displaced rulers. Spain at the present time gives an in- stance of this. The truth is, that however rigidly Foreign Powers may limit their recog- nition to admissions of facts, such recognition gives the new Government a great increase of moral force, and materially improves the light in which it is regarded by nations as well as by foreigners. " La reprise des relations diplomatiques et le fait d'accorder certains titres impliquent, du reste, la recon- naissance du gouvernement de fait, CeUe-ci exerce une cer- taine influence sur le droit, car eUe diminue ou leve com- pletement les doutes qui au- raient pu subsister sur I'exis- tence de I'ordre de choses 108 FIEST PLATPOEM Temporary 108. It lias been pointed out that the existence of EeToiutwnary some kind of Organized and settled government is CmiWar. gggg^j^j^g^^ fQj. ^jjg International existence of a State. During the doubtful struggles and the vehement vicissitudes of fortune which civil virars commonly dis- play, it is often difficult and sometimes impossible to say what superior authority, if any, the bulk of the community habitually obeyed*. And even when the nouvellement etabli." — Blunt - sohU, p. 112. A subject closely akin to this will be discussed in anotber part of tbe present -work, in which will be considered the rules as to the recognition of Belligerency and of Independ- ence. The futile attempt of the Holy AUiance to ignore aU States of revolutionary origin wiU be spoken of presently. * Austin (p. 211) puts the following case : — "During the height of the conflict between Charles the First and the Par- liament, the English nation was broken into two distinct societies ; each of which socie- ties may perhaps be styled poli- tical, and may certainly be styled independent. After the conflict had subsided, those distinct societies were in their turn dissolved ; and the nation was reunited under the com- mon government of the Par- liament, into one independent and political community. But at what juncture precisely, after the conflict had subsided, was a common government completely reestablished ? Or at what juncture precisely, after the conflict had subsided, were those distinct societies com- pletely dissolved, and the na- tion completely reunited into onepoliticalcommunity? When had so many of the nation rendered obedience to the Par- liament, and when had the general obedience become so frequent and lasting, that the hulk of the nation were Jiahi- tually obedient to the body which affected sovereignty ? and after the conflict had subsided, and until that junc- ture had arrived, what was the class of the society which was formed by the English people? These are questions which it were impossible to answer with certainty, although the facts of the case were precisely known." OP INTEENATIONAL LAW. 109 military and political chiefs of one of the contending parties have compelled all others to lay down their arms, and to profess obedience to the victors, the elements of change and reaction, or of discord and nevtr civil war between the conquerors themselves may be seething in such manifest potency that it is impos- sible to feel confidence in the stability of the newly established order of things. Under such circum- stances no foreign State is bound to recognize formally the new Government, though it may keep up amicable relations with the community which it is riiling. 109. Such a temporary condition of anarchy or of anarchical instability does not destroy the continuity of a State's existence ; it only suspends its natural states' conti- m. txTi 1 f-i • ■ i- -i nuity of exist- action*. When the State acquires reorganization, its ence sumyeB. old life is rehabilitated and proceeds. 110. When an old Government is restored after the Queetions temporary prevalence of an imperfectly settled Revo- Restoration. lutionary Government, or of a series of such Govern- ments, difficult questions often arise as to the effect of such restoration upon the acts of State of the inter- mediate rulers. These difficulties usually occur in matters which afiect members of the State itself — ^that is to say, in matters of Constitutional Law, and not of International Law. But they sometimes materially affect Foreign States. It is impossible to lay down * L'etat nc cesse pas pour p. 13. Dudley Field, Article 20 cela d'exister, pas plus qu'un of 'International Code,' says, "A homme ne perd sa qnalite temporary condition of anarchy d'homme, lorsque la fievre ou le does not affect the continuity deUre troublent momenfcane- of existence of a nation." ment ses facultes." — Bluntschli, 110 FIEST PLATFOEM rulers no longer recog- nized. Are consider- able numbers of population, and is landed property es- sential to the existence of a State? any system of fixed rules for their solution. Gene- rally speaking, it will be necessary to have regard to the length of time during which the revolutionary power-holders bore sway ; to the nature of each act, and to the object with which it was designed, as well as to the results of its being carried into execution*. 111. As he who gains the de facto rule of a State becomes its representative in International Law, he who loses such rule loses such representative character also. Dethroned Princes have often made treaties with foreign States, which treaties would, if enforced, materially affect those Princes' own countries. But such treaties are, in respect of those countries, abso- lutely void. " Celui qui perd le gouvernement d'un etat, cesse de representer cet etat a I'exterieur. On ne peut pas conclure avec un prince detrone des traites obligatoires pour I'etat. Celui, qui n'est plus souverain, etant hors d'etat de gouverner, ne peut plus representer I'etat. II serait absurde de pre- tendre qu'un peuple put etre lie par les actes d'un prince qui ne possede aucun pouvoir sur ce peuple, et est incapable d'assurer I'execution de ce qu'il a promis "f . 112. Returning to our immediate subject of " What constitutes- a State?" we will consider whether it is essential that the population of a political community shall consist of any minimum number, in order for it * See on this subject Law- rence, 'CommentairesurWhea- ton,' vol. i. p. 214; Blunt- schli, p. 74 ; Heffter, pp. 356, 361, 362 ; Phillimore, vol. iii. p. 700 ; HaUeck, p. 840. t Bluntschli, p. 113. Austin. OF DJTBENATIONAL LAW. Ill to be regarded as a Sovereign State ; and also whether the possession and ownership of territory by the poh- tical community in question is essential for its having the character of a State. 113. Pirst as to numbers. Astonum- 114. Mr. Austin, in his work on Jurisprudence*, option of arrives at the following conclusion : — " A given inde- pendent society, whose number may be called incon- siderable, is commonly esteemed a natural and not a political society, although the generality of its mem- bers be habitually obedient or submissive to a certain and common superior." And arriving at that conclusion, we must proceed to this further conclusion : — In order that an indepen- dent society may form a society pohtical, it must not faU short of a number which may be called consi- derable. "The lowest possible number which will satisfy that vague condition cannot be fixed precisely. But, looking at many of the communities which commonly are considered and treated as independent political societies, we must infer that an independent society may form a society political, although the number of its members exceed not a few thousands, or exceed not a few hundreds. The ancient Grison Confederacy (like the ancient Swiss Confederacy with which the Grison was connected) was rather an alliance or union of independent political societies than one indepen- dent community under a common sovereign. Now * Vol. i. page 237. See the comments of Sir Henry Maine, ' Early History of Institutions,' p. 378. 112 FIEST PLATFOEM Of Montes- quieu. Of Heffler. Territory. Opinion of Austin. the number of the largest of the societies which were independent members of the ancient Grison Confede- racy hardly exceeded a few thousands ; and the num- ber of the smallest of those numerous confederated nations hardly exceeded a few hundreds." 115. In another part of the same work he cites Montesquieu's opinion, that the union of a number of families is .essential for the existence of a political society. "La puissance politique comprend neces- sairement I'union de plusieurs families." 116. Heffter says that a State must be " Une societe assez nombreuse, et capable d'exister par elle meme, et dans I'independance"*. 117. With respect to territory, Mr. Austin says, " Generally speaking a society political and indepen- dent occupies a determinate territory. Consequently, when we imagine an independent political society, we commonly imagine it in that plight. And, according to the definition of independent political society which is assumed expressly, or tacitly, by many writers, the occupation by the given society of a determined terri- tory or seat is of the very essence of a society of this kind. But this is an error. History presents us with societies of the kind which have been, as it were, in transitu. Many, for example, " of the barbarous nations which invaded and settled in the Roman Em- pire, were not, for many years before their final esta- blishment, occupants of determined seats "f. I believe these remarks of Mr. Austin to be * Page 36. f Vol. i. page 345, note. OF INTEENATIONAL LAW. 113 quite right. How it was that the great founders of the modern schools of International Law, Grotius and others, introduced the doctrine that Sovereign States must have territorial sovereignty, that proprietorship over some portion of the earth's surface is an es- sential element for the existence of a " Civitas," will be found admirably explained by Sir Henry Maine in the concluding part of his fourth chapter on Ancient Law, which has been already referred to in this volume*. 118. The question may appear immaterial, as a Question may . PI- 1-1 1 i-i 11- -tTTT seem practi- condmon oi things hke that which prevailed m West- eaiiymmia- ern Europe for some centuries during and succeeding to the downfall of the Roman Empire is not likely to recur. But something of the kind may yet happen. But it may Suppose, for example, that the members of the Inde- pendent Republic now located near the Orange River to the north of the eastern part of our Cape colony were to determine to abandon their present habita- tions and to migrate to some new home on the African coast of the South Atlantic. Before they were thoroughly settled in their new homes they would probably come into contact with our colonists in the north-western provinces of Cape colony, on the fron- tiers of Calvinia, or of Namaqualand. Now, if this still- migrating community retained their organization as a political community, and observed the usages of International Law and comity towards us, it would, I apprehend, be our duty to treat them as a Sovereign * Page 86, note. recur. 114 FIEST PLATPOEM State, though not holding for the time any definite territory as their own dominion* . BquaUtyof 119. If an independent. Organized poHtical commu- States. _ 1-1 nity has the quaUfication of sufficient numbers, which has been recently spoken of (perhaps also if it is quali- fied by having some exclusive territorial possession), it is a Sovereign State for purposes of International Law ; and its rights as such are not augmented by any in- crease of population or territory. Equality before the Law, the 'laovonia which the ancient Greeks regarded as the special characteristic of a commonwealth having full internal freedomf , is thoroughly recognized in the commonwealth of States by International Law. One of the fundamental prin- ciples of Public Jurisprudence is, in Lord Stowell's Lord stoweU's words, " the perfect equality and independence of all distinct States. Relative magnitude creates no di- stinction of right ; relative imbecility, whether per- manent or casual, gives no additional right to the more powerful neighbour ; and any advantage seized Equality the ou that ground is mere usurpation. This is the great foundation of. ,. pt»itt i-i- • i PubUoLaw. loundation ot rubhc Law, which it mainly concerns * Bluntschli says that such. See also p. 169 et seq. and wandering communities are not p. 290. States, but that, in considera- f So the Eoman Jurists ac- tion of their being politically knowledged the equality of aU organized, and having an organ men according to Natural Law. for the expression of the This is declared by Ulpian, as common wiU through the agency cited in the 50th book of the of their chief, or assemblies. Digest, " Quod ad Jiis Naturale they are to be dealt with ana- attinet, omnes homines sequales logously to States, andean form sunt." international treaties (p. 63). OF INTERNATIONAL LAW. 115 the peace of mankind both in their politic and private capacities to preserve inviolate"*. 120. I will place in juxtaposition with Lord Mr. Sumner's Stowell's words the statement of the same doctrine this equality. made by the lately deceased American Jurist and statesman, Mr. Sumner, in the Senate of the United States, on the 23rd March 1871. I cite them as they are translated and adopted by Bluntschli in his Inter- national Codef. " L'egalite des peuples est un prin- cipe du droit international, au meme titre que l'egalite des citoyens est un axiome de notre declaration d'in- dependance. On ne doit pas faire a une peuple petit et faible ce qu'on ne ferait pas a un peuple grand et puissant ou ce que nous ne souffririons pas, si cela etait fait centre nous-memes". 121. The doctrine that all States, great and small, Thistheore- powerful and weak, are equal as to rights, is not at of rights, ii(ft all impugned by the undoubted fact that powerful prS^ dif- ference as to * Judgment in the case of populations and resources of power and " Le Louis," 2 Dod. 243, cited different States. Europe alone influence. by Poison, p. 25, and Halleck, (according to Mr. Dudley Field p. 98. The same principle is in his recent ' Plan d'un Code 8tatedbyVattel,'Preliminaires,' International') contains eigh- seots. 18 and 19; Kent, p. 21 teen Independent States. Among (of 1st vol. of Commentaries) ; them are the United Kingdom Heffter, ' Droit International,' of Great Britain and Ireland, s. 27 ; Bluntschli, p. 94 ; Dud- with its population of more ley Field, Code, p. 10 ; "Wool- than thirty millions and its vast sey, p. 74, and many other naval and military resources^ authorities. and the Eepublic of San Ma- The importance of the prin- rino, with a territory about ciple is best appreciated when 30 miles long and 20 wide, and we observe the enormous dis- an armed force of eighty men. parities between the respective t Page 94. I 2 116 PIEST PLATFOEM Leading Powers. Former lead- ing Powers. Maritime Powers. States have much the most influence on the affairs of the world, that they can assert their own rights and claims and can control the rights and claims of others very effectively, and that, when the powerful States agree upon a line of general policy, the smaller States generally defer to them and follow their example. This is merely analogous to what we often see in smaller spheres of action. If the four or five great landowners of a rural district meet and agree together as to some local measure, the small squires and yeomen mostly acquiesce in their deter- mination. Such is the case when the four or five great mercantile firms of a trading community com- bine in joint opinion and action as to some matter affecting the trade of the town. The little shop- keepers hearken and follow suit. In such cases we speak of the importance of securing the votes of the leading landowners or the leading merchants ; but we do not mean by it that they are privileged in the municipal courts of law. So when we speak of the leading Powers of the world, or of Europe at any particular crisis, we only mean that they are " Primi inter pares ;" but their primacy is very substantial. We might, indeed, call each of them a " Primipilus," having regard to the kind of practical arguments by which they are wont to maintain their doctrines. 122. Formerly the Empire, the Kingdom of France, and the Kingdom of Spain were looked up to as the great leading political military powers of Europe. England and Holland were usually styled " the Mari- OF INTEENATIONAIi LAW. 117 time Powers" — a phrase that had not become obso- lete before the end of the last century*. 123. After the overthrow of the Empire of the The Pent- First Napoleon the four chief Powers among those ^^^ ^' that had combined against him, took on them- selves to regulate- the affairs of Europe without much heed to the opinions or wishes of the minor members of the Commonwealth of European Statesf . These Four Powers were Austria, Great Britain, Russia, and Prussia. France, under her restored Monarchy, was admitted to this high conclave in 1818 ; when her Representative, the Duke de Richelieu, took part in * Martens, writing at Got- tingenin 1788, says: " There is another division which, though it depends in some measure on the local situation of States, ought not to be neglected in treating of the law of nations ; I mean the division into mari- time Powers, and Powers not maritime. Itis eommonenough to call every State maritime that is situated on the borders of the sea and is capable of carrying on commerce on that element; but a maritime Power, properly speaking, is a Power that keeps up a fleet of ships of war ; and in this accepta- tion of the term there are only Great Britain, the Seven United Provinces, Spain, Portugal, the Sicilies, Denmark, Sweden, Turkey, the Eepublicof Venice , latterly France, and, since the beginning of the eighteenth century, Russia, which can be called maritime Powers ; the other Powers have either never been maritime or have ceased to be so. But this term, in a more restrictive sense, is ap- plied to those Powers only whose principal strength con- sists in ships of war, or whose power by sea has a preponde- rance over that of the other Powers, on the same element. In this double sense England and the United Provinces have, sinceTihe end of the seventeenth century, been exclusively dis- tinguished by the appellation of the maritime Powers" (p. 32). t See Lawrence, 'Commen- taire sur Wheaton,' vol. ii. p. 221. 118 riEST PLATPOEM the Congress of Aix-la-Chapelle. Thus was consti- tuted the Council of Five*, which is sometimes termed the Pentarchyf. But there is no magic in the number. An additional State may claim and obtain admission to the hst of these " Optimates," these " Majores Barones " of International Hier- archy, if the newcomer acquire such strength, and display such an active spirit in its external life that it cannot be safely disregarded when the settlement of any European question is desired |. * "Ainsi se trouva oonsti- tue le conoile des cinq, qui s'est regarde si longtemps comme souverain et supreme, tant pour les affaires interi- eures que pour les affaires in- ternationales de tous les autres Etats du monde civilise." — • Lawrence, ib. p. 229. t Bluntschli says of the Pen- tarchy that " L'esp^ce d'union consolidee h Aix-la-Chapelle en 1818 entre les cinq grandes puissances Europdennes, I'Au- triche, la Prance, la Grande Bretagne, la Prusse,etla Eussie, n'equivaut pas k la constitu- tion d'un senat international Europeen ; on voulait seule- ment constater par Ih que les cinq ^tats possedaient alors la puissance la plus considerable, et envisageaient comme leur tache commune de coop^rer k la reglementation des affaires Europeenees" (p. 103). t Bluntschli, p. 104. He refers to the efforts made by the new Kingdom of Italy to obtain admission to the delibe- rations of the Great Powers. Count Mamiani opposes vehe- mently the recognition of any such oligarchic clique of States. He says (writing in 1859) that " In Prance and the other Pour Powers above mentioned [i. e. Austria, Great Britain, Eussia, and Prussia] the decision of European law is lodged in too great a measure. "We quite- feel the necessity for the power- ful and the rich prevailing, as among private persons they do, so among the public, and in the universal commonwealth of mankind no less than in par- ticular cities ; and we frankly acknowledge that the history of Congresses previous to that of Vienna abundantly confirms the fact of the arbitrary dis- posal by the Great Powers of the lot of the lesser. But it is or INTEENATIONAL LAW. 119 124. The league of the four powerful monarchs of The Holy Russia, Austria, Prussia, and France, under the title of the Holy Alliance, was organized by the Emperor Alexander I., with declared purposes of a somewhat romantic nature, according to which the legitimate Kings and Princes of the earth were to aid each other in ruling their subjects and soldiers with paternal feelings and Christian benevolence, and in preserving piety, peace, and order. The practical policy (if not the original design) of the Holy AUiance was directed to the armed suppression of revolutionary movements in Europe, and to the forcible maintenance of old despotisms. The Holy AlUance existed for some years collaterally with the Pentarchy; but Great Britain steadily refused to join it, and plainly re- the duty of all wise and honest men to endeavour not to let this be assumed as a right, and to see that such an odious and iniquitous privilege as this, . which dares not proclaim itself before the conscience of the peoples, shall not, under the name of a convenient and in- veterate custom, continue to be maintained. " This overweening domi- nion of the European Pentar- chy is not, I think, sufficiently palliated by saying that each people is free to accede or not accede to the maxims- agreed upon, and to approve or not to approve any deliberations re- garding an actual settlement. " For the dissent of those who are small and weak, even when they take courage to express it, is of little worth or none; and if we search through his- tory we may find huge bun- dles of their unheeded pro- tests, lying fofgotten long ago in the archives of imperial chanceries. On the other hand, the great potentates wiU not fail in any future convention to allege, as a principle already consented to and universally adopted by European law, that which they betwixt themselves have previously determined and ratified ; and, if need be, they wUl make the most rigid and strenuous application of it." 120 PIEST PLATFOEM The Monroe Doctrine. Its announce- ment in 1823. pudiated its doctrines of forcible intervention. After the death of its founder, the Emperor Alexander, it sank almost into oblivion. More will be said of the Holy Alliance in other parts of this work, where the right, or supposed right, of Intervention is examined. 125. The great Republic of the United States of America, while keeping in general ostentatiously aloof from participation in the politics of the Old World*, has at times assumed the position of the exclusively leading power of the New World ; but it cannot be said that either England, France, Russia, or Spain has acquiesced in such predominance ; and it is dis- claimed by some of the ablest American Jurists and statesmen. According to the Monroe doctrine (so called from the President under whose term of office, in 1833, it was put forward), all interference by European powers with any government in any part of the American continents is denounced as " a mani- festation of unfriendly disposition towards the United States ;" and the supporters of this doctrine maintain, as a principle in which the rights and interests of the United States are involved, that the " American continents, by the free and independent condition which they have assumed, are henceforth not to be considered as subjects for future colonization by any European power." 136. In 1848, President Polk recommended Con- * An exception will be found m the eager, though unsuccess- ful, attempts made by the go- vernment of the TTnited States in 1849 to efifect the recognition of the independence of Hungary as against Austria. OF INTERNATIONAL LAW, 121 gress to act upon the Monroe doctrine, and to President take such measures as might prevent Yucatan nounoe™ent from becoming a colony and part of the dominion of "" ^ ' any European power. The Congress decreed the levy of a force to occupy Yucatan for a time, and to expel the Indians who had overrun that country. But the scheme was dropped, in consequence of a pacification which the Yucatan government effected with the insurgents. In 1867, after Great Britain and the had provided for the union of all her North- American the House of possessions in the one great province of the " Do- tivesln 1867. minion of Canada," the American Chamber of Repre- sentatives, by an unanimous vote, passed a resolution declaring the uneasiness of the United States at witnessing " such a vast conglomeration of American States established on the Monarchical principle — such a proceeding being in contravention of the tradi- tionary and constantly declared principles of the United States, and endangering their most important interest." 127. The government of the United States viewed with natural jealousy the action taken by certain European powers with regard to Mexico in 1862. England, Spain, and France at first joined in opera- French inter- tions to compel the Mexicans to make redress for Mexico in 1862 gross injuries committed towards the subjects of those kingdoms. England and Spain carefully disavowed all intention of interfering with the internal politics of Mexico; but the French Emperor, Napoleon III., determined to attempt the institution of a monarchical form of government in that country. Indeed, a dis- 122 PIE8T PLATFOEM The United States refuse to recognize any but a Bepubliean Government. Freedom of America from European control. tinguished French Seiiator, M. Chevalier, pubhshed an avowal that one purpose of the expedition to Mexico was "to oppose a barrier to the invasion of the whole American Continent by the United States." England and Spain now withdrew frona the operations against Mexico ; but the French persevered. An im- perial form of government was set up over the greater part of the Mexican territories by French auxiliaries for a time, at the head of which was placed Maxi- milian, a prince of the Austrian royal family. But the resistance of a large part of the Mexican nation, and the avowed and menacing displeasure of the United States at this intervention, induced Napoleon III. after a short period to withdraw his troops ; and then the brief empire which they had set up in Mexico came to a disastrous and blood-stained termina- tion. The United States (occupied by their own civil war, which was then raging) did not actually send troops to oppose the French in Mexico ; but they steadily refused to recognize Maximilian, or any government, except a republican government in Mexico ; and the language of their statesmen exhibited the fullest de- velopment of the Monroe doctrine. In a circular addressed by the American Minister, Mr. Seward, to the legations of the United States, he said that, " In the President's judgment, the emancipation of the American Continent from the control of Europe has been the principal feature of the last half-century." In April 1864, the Chamber of Representatives at Washington voted unanimously a declaration that " It is not fitting for the people of the United States OP INTEENATIONAL LAW. 123 to recognize a monarchical government erected on the ruins of a republican government in America under the auspices of any European power whatever." 128. While there exist these and many other strong More tem- proofs of the prevalence of the Monroe doctrine in the ofTom™^° United States*, and of a determination that their great stoteBmm and Republic shall assume the Hegemony of the whole of •^"™'^- the American Continents, and also of a design that those Continents shall be under republican forms of govern- ment and no other, it is right to add that such claims and aspirations have been and are repudiated by some of the most eminent United-States Jurists and politicians. Mr. * The Spanish Jurist, M. Calvo, in his work on Le Droit International, p. 204, ed. 1870, says : — " II n'est pas wa. publioiste Americain, qui en traitant des questions de droit international, et en determinant les liens politiques qui doivent unir I'Amerique et I'Europe, ait emis le moindre doute sur la parfaite legitimite et la haute sagesse des principes proclames parle President Monroe, qui, du reste, sont devenus k la fois un bouclier, une arme de combat, et une regie de conduite pour les gouvernements Americains : c'est en leur nom, en eflfet, que suivant le point de vue adopte, on a affirme le droit de ces peuples de jouer un role dans les grands evenements Euro- peens, que I'on a repousse toute I'intervention etrangere dans les ifiltats transatlantiques, que I'on a constitue un grand parti politique, qui donne en quelque sorte I'impulsion aux gouverne- ments du Nouveau Monde, et que Ton a cherche k propager I'opinion que les !fitats-Unis pouvaient et devaient absorber tons les autres peuples qui habitent les anciennes posses- sions eoloniales de I'Espagne et du Portugal." The instances ■which will be presently cited in my text and notes show that M. Calvo is not correct in say- ing that the Publicists of the United States are unanimous in holding these opinions ; but it cannot be doubted that such are the opinions of the majority of the better-educated classes, and of almost all members of the less-educated classes of society there. 124 PIEST PLATFOEM Calhoun firmly opposed the policy of President Polk as to Yucatan ; and one of the ablest late writers in the States on International Law professes the follow- ing sound principles on the subject : — " To lay down the principle that the acquisition of territory on this continent by any European power cannot be allowed by the United States would go far beyond any measures dictated by the system of the balance of power; for the rule of self-preservation is not ap- plicable in our case ; we fear no neighbours. To lay down the principle that no political systems unlike our own, no change from republican forms to those of monarchy can be endured in the Americas, would be a step in advance of the Congresses at Laybach and Verona ; for they apprehended destruction to their political fabrics, and we do not. But to resist at- tempts of European powers to alter the Constitutions of States on this side of the water is a wise and just opposition to interference. Any thing beyond this justifies the system which absolute governments have initiated for the suppression of revolutions by main force"*. 129. General Halleck, in commenting on the maxim that all States are equal in the eye of Inter- * Woolsey's 'International Woolsey, partly from Calvo, Law,' p. 70 ; and see the re- but chiefly from Mr. Lawrence's marks at pp. 355 & 356, at the ' Commentaire sur Wheaton,' close of the volume, and the vol. ii. pp. 310-339 et seq. final note to the edition of Mr. Lawrence criticises ably 1 874. some of the positions that have The account given in the been assumed by American text of the Monroe doctrine statesmen, has been taken partly from- OF INTEENATIONAL LAW. 125 national Law, says that " a necessary consequence of this equality is the rule that all sovereign princes and Bight of States may assume whatever titles of dignity they assume^ities. think fit, and may exact from their own subjects the corresponding marks of honour. But their recogni- tion by other States is not a matter of strict right, especially in the case of new titles of higher dignity assumed by Sovereigns"*. 130. These things used to be matters of much importance more importance than they are at present. Even as aas^ed to late as 1788, the Gottingen jurist Martens, in his ' Summary of the Law of Nations ' (which was ex- tensively used as a manual on the subject f), says that States are classified into " great " and " little," not ac- cording to their dominions or infiuence, but according vaiue of to their being entitled or not to Boyal honours. Honoure." These " Royal Honours " are carefully explained by Martens. So long as " The Holy Roman Empire " of the Germans continued to exist (that is, until 1806), the Emperor, as the "Kaiser," the "Semper Au- gustus," as supposed representative of the majesty and preeminence of the real old Roman Emperors, Titular claimed and was allowed a titular superiority over theESserof other temporal princes throughout central and western Roman ^ Christendom J. He especially claimed (though here ^'^"^' * p. 98. peror, used the title of 'Ma- t See the translation of it jesty.' The Imperial Chancery by William Cobbett in 1795, conceded it in 1633 to the dedicated to President Wash- Kings of England and Sweden, ington. in 1641 to the King of Erance." X " For a long time no Euro- — Brjce's Soman Empire. pean sovereign, save the Em- 126 PIE8T PLATFOEM the Pope asserted a counter-claim) the right of be- stowing the rank of " King " on potentates who had previously borne an inferior title. Titles of the 131. In the East of Europe the Grand-Dukes of SuUans" Muscovj, as soon as they shook off the yoke of the Tartars, styled themselves " Czars"*, a title arro- gating supreme authority. Peter and his successors assumed the title of " Emperor of all the Russias ;" but it was acknowledged slowly and reluctantly by other powers. The Sovereign of the Ottoman Turks bears among his Oriental subjects, and uses in Diplo- macy, the title of " Padischah"f , which is understood to mean " Supreme Sovereign," and to be equivalent to " Emperor." In Martens's time (that is, less than a century ago) the Turkish sovereign claimed a right * This title is not a corrup- padiehah par les Turcs. L'em- tion of the word "Caesar," as pereur d'Allemagne n'avait ala is often supposed, but an old Porte que le titre de Nemtche oriental word meaning sove- tehagari (Cesar d'AUemagne) ; reign ruler, which the Eussians les Czars de Eussie, celui de acquired through the Sclavonic Mosgovtchari et ensuite de Kou- translation of the Bible, and ciatchari. Ce ne fut qu'en which they bestowed at first 1774, dans le traite de Eai- on the Greek Emperors, and nardji, qui Timperatrice Cathe- afterwards on the Tartar Khans, rine II. obtint I'addition a son See authorities cited in note to titre des mots vi padiehaM. p. 341 of vol. i. of my ' History En Decembre 1805 Napoleon of the Ottoman Turks.' fut reconnu avec la double t " Le titre de Padicha (du qualite de Imperattior vk padi- Persan Pad,protecteur, et chah, ehah. Depuis, le titre de padi- roi), est titre exclusive des chah a et^ etendu h, la plupart souverains ottomans en Orient, des souverains de I'Europe, Frangois I. fut le premier et allies de la Porte." — Ubicini, longtemps le seul monarque vol. i. p. 34. Chretien qui fut quaUfie de OF INTERNATIONAL LAW. 127 of precedence over the German Emperor, which the German Empu-e had been compelled to acknowledge by treaties*; " but the other crowned heads do not " (says Martens) " yield the precedence to the Turk as they do to the German Emperor." He adds that " The maxim of civil right, ' Si vinco te vincentem, vinco te,' however material it may be, is not at all applicable to the matter of precedence " f . 132. Napoleon I. assumed the title of Emperor in imperial Title TT fv> 1 • 1 1 • • 1 asBumed by 1804. He affected, not without reason, the imperial Napoleon i. position which 1000 years before had been held by Charlemagne ; and thus there might seem to be some shadowy links between the new French Empire and the Western Empire of old Rome, which Charle- magne was supposed to have revived. But when Vagueness of „, .. n T ^ iiTi- modern title Erancis of Austria, m 1806, declared the dissolution of Emperors. of the Holy Roman Empire of the Germans, and styled himself "Emperor of Austria," the Imperial title was wholly stripped of all associations with old Rome J. A few years afterwards, when Brazil was * Martens, p. 137, Cobbett's married Sophia, the last princess translation. of the Greek Imperial family, t lb, p. 138, note. from which the conquering Ot- J The Turkish Snltan and the tomans had wrested the Roman Russian Czar have both claims empire of the East. From that to the Imperial position once time forth the two-headed eagle, held by the old Roman Em- which had been the imperial perors of the East. The Sultan cognizance of the Emperors of can claim by right of conquest : Constantinople, has been as- he is indeed commonly spoken sumed by the Russian sove- ofbyMZira-Orientals as "Sultan reigns as their symbol of do- of Bourn." The Russian Czar minion. Until the marriage of claims by right of marriage. Ivan III. with Sophia the cog- Ivan III. sought out and nizanee of the grand princes of 128 FIEST PLATEOEM separated from Portugal, the sovereign of Brazil called himself " Emperor ;" and since then there have been Emperors of Mexico, of Hayti, and other places, until the word " Emperor " has ceased to mean more than very pompous royalty. KepubUcsno 133. On the other hand. States under a Repub- anmferbr^^ lican form of Government are no longer bound to allow " the Emperors and all the Kings to take the lead of them," as appears to have been the case when Martens wrote. The first French Republic insisted that the powers of Europe, with which it had diplo- matic intercourse, should observe towards it the same ceremonial, as to rank and etiquette, which had been paid to the French Monarchy. The same was the case with respect to the recent French Republic ; and, as General Halleck observes, " Republics are entitled to the same rank as monarchies, unless they themselves have yielded their, natural right of equality, and conceded the precedence to others " *. 134. It is scarcely within the purpose of this book, certainly not of this part of it, to describe how matters Ceremonial, of ceremonial between States are now regulated. Such matter can in general be only regarded as forming part of the Comity of Nations — except in rare cases, where the insult offered to the honour of a State is so gross, that it cannot be submitted to without the State ceas- ing to be respected, and therefore without its ceasing to be secure. This topic will be hereafter adverted to Moscow had been a figure of See note, vol. i. Hist. Ott. St. George killing the dragon.- Turks, p. 341. * P. 103. OF INTEENATIONAL LAW. 129 when we deal with the perfect right of every State to In- dependence and Security. For the present it will be enough to remark that serious disputes as to insults Maritime i-ini-i'ii ■ n Honours. or alleged insult oi this kind have arisen most fre- quently out of claims to " Maritime honours " to be paid on the ocean between ships of different nations, or in ports between ships, or between ships and ports*. 135. We have hitherto in this chapter been examin- Question how ■• It,- p ^• ,• ^ • ^ far modem ing rules and doctrines ot some complication, which positive inter- are recognized by European States, and by the extends as tl American States that have been formed out of tiangandasto European colonies. The question seems to occur s»^^«^- naturally at this point. How far, if at all, does Modern Positive International Law extend to Non-Christian States, and to imperfectly civilized societies ? 136. Inasmuch as the basis of Positive or of Such Law de- Instituted International Law is created chiefly by the oneon^nt. .11 i I? AT i- ■ T 1 -i • Limited area Will or assent or JNations, express or implied, it is of states matter for grave consideration how far such law can iTgrew^p!'' be properly applied to those communities which are beyond the boundaries of European Christen- dom, and which form no portions of its offshoots. * The maritime honours, and if the salute shall be re- about which there have been turned, gun for gun ; 2, in so many disputes, and which saluting with the flag, or with have often led to violent acts, the pendent ; and here it is to and even to war, consist: — l,in be fixed on whether it shaU be saluting with cannon ; and on furled up, lowered, or hauled this point it has to be deter- quite down ; 3, in saluting mined who shall salute the first, with sails, by lowering, or at what distance the salute shall hauling down the foretopsail. be given, with how many guns, (Martens, p. 171.) K 130 FIRST PLATFOEM Moral Inter- national Law almost Uni- Tersal. AUter as to Instituted Law. Consent how shown. Cases of Otto- man Porte. Such communities have consequently been strangers to the numerous bonds of union which existed among Christian States in the middle ages, and at the period (from the last half of the loth century to the end of the 16 th century) when the chief kingdoms and other powers of Europe were assuming their modern de- velopments and forms. In a preceding chapter we have had occasion to ascertain the general applica- bility of the leading principles of Moral International Law to all nations, whatever be their creeds or their local customs, at least in all cases where there is civili- zation enough for men* to be organized into Political Communities. Such maxims as " Smim Cuique" " Alterum non l(Bdere" and " Keep Faiths or " Pacta sunt servanda^' fipply to the dealings of a State (which is an assemblage of moral agents, and is itself a moral agentf) with other States in every part of the world. But before a rule of Positive, i. e. of Insti- tuted, International Law (not being clearly also a rule of Moral International Law) is enforced on an Asiatic, or African, or American State (not being and never having been a European colony), we ought to have proof, either express or by implication, that the State in question has shown, either expressly or by impli- cation, a recognition of such rule. This may be shown by proof of a general wish manifested by such States to be treated on terms of connected amity, and by proof of mutual observance of respect for rights, and for estab- lished international usages. The Ottoman Poi'te has now long acted, and has long been treated, as bound * See supra, p. 27. t See supra, p. 23. OF INTERNATIONAL LAW. 131 and as protected by International Law, such as has grown up in European Christendom*. Persiaf and Pereia, Egypt may now be regarded as in the same category ; and, to some extent, we may think the same of China| ciiina, Japan. and Japan§, by virtue of the treaties that have been recently concluded, aqd the diplomatic intercourse which has been established with those long " Veiled Powers." of the Far East. 137. The Piratical States of the North of Africa, The Bar- Morocco, Sallee, and the three Barbaresque Regencies Powers, (as they were formerly termed) of Algiers, Tripoli, and Tunis (which were nominally subject to the Otto- man Porte, but practically self-ruled), used to furnish text-writers on International Jurisprudence with exam- ples of semicivilized states-which were so far organized and " mansuefactas " that they could not be regarded as * In the negotiations be- and some of them refer to its tween the Turks on one side, principles. See them sketched and the Russian and Austrians in Phillimore, voL i. p. 84. The on the other side, at the Con- Porte also is a party to the gress of Nimiroff in 1737, the " Declaration concerning Mari- Ottoman Plenipotentiaries cited time Law," issued by the prin- Christian writers on the Law cipal European powers at the of Nations. During the war Conference of Paris in 1856. of the Austrian Succession Mr. Lawrence, in his ' Com- (1740-1748), Sultan Mah- mentaire sur Wheaton,' vol. i. moud I. offered his mediation p. 120, sketches the inter- to terminate the hostilities that national relations between the were raging between his Chris- Porte and the chief powers of tian neighbours. The Treaties Christendom, of Sistova 1791, Jassy 1792, t Lawrence, ' Commentaire,' and numerous more recent vol. i. p. 146. treaties, to which the Sublime J See Lawrence, ' Commen- Porte was a party, have been taire,' vol. i. p. 126. concluded according to the § See Lawrence, ib. p. 146. usages of International Law ; K 2 132 PIEST PLATPOEM out of the pale of the law of Nations, and yet were so far savage and anarchical that it was not proper to apply to them all the developments of that law. Algiers is now part of the French dominions ; Tripoli is effec- tively under the Sultan's authority ; Tunis has re- lapsed more and more into savagery ; yet the decisions and dicta of International Jurists respecting these States as they existed half a century ago, are still prac- Vaiue of deci- tically Valuable, as pointing out principles on which ing them. questions as to such States (if questions of the kind rise again) should be determined. In 1801, Lord Stowell ruled that the international law of blockade was binding upon the African States*. In part of his Law of Block- judgment he said: — "It has been argued that it would suchStatef" b^ extremely hard on persons residing in the King- dom of Morocco if they should be held bound by all the rules of the law of Nations, as it is practised among European States. On many accounts un- doubtedly they are not to be strictly considered on the same footing as European merchants ; they may, on some points of the law of pations, be entitled to a very relaxed application of the principles established, by long usage, between the States of Europe holding an intimate and constant intercourse with each other. It is a law made up of a good deal of complex reason- ing, though derived from very simple rules, and alto- gether composing a pretty artificial system, which is not familiar either to their knowledge or their observance. Upon such considerations the Court has, on some occa- * The ' Huztige Hane,' 3 Eobinson, 324. OF INTEENATIONAL LAW. 133 sions, laid it down that the European law of nations is not to be applied in its full rigour to the transac- tions of persons of the description of the present claimants, and residing in that part of the world. But on a point like this, the breach of a blockade, one of the most useful and simple operations of war, in all ages and countries, excepting such as were merely savage, no such indulgence can be shown. It must not be understood by them that, if an European 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 operation of a blockade perfectly nugatory. They, in common with all nations, must be subject to this first and elementary principle of Blockade, that persons are not to carry into the Blockaded port supplies of any kind. It is not a new operation of war, it is almost as old and as general as war itself. The sub- jects of the Barbary States could not be ignorant of the general rules applying to a blockaded place, so far as concerns the interest and duties of neutrals." 138. But (as is pointed out by Dr. Travers Twiss) Parts of Law " in a matter oi form, which involved only a secondary on such States, question of International Right, the same eminent Jurist upheld the transfer of a ship which had been captured by an Algerine cruiser, and subsequently sold bond fide, although it was not established that the ship had been formally condemned by the sentence 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 134 PIEST PLATFOEM owner of the vessel, that there had been adequate grounds for the confiscation of the vessel "*. Astouncivi- 139. With resDcct to the application of this branch lized Tribes. . ^ .... of Jurisprudence to unciviHzed nations, I cannot do better than adopt the words of Poison and Wheaton. " We may conclude [as to such nations] that they are entitled to the protection of international law no further than what an enlightened appreciation of the natural rights of States will obtain for them. To treat these nations with cruelty, to violate their in- dependence, to oppress their citizens, to despoil their dominions, — these are acts so plainly inconsistent with the character of natural justice, that the State which indulged in them would draw down on itself the just indignation of Europe. But, at the same time, these uncivilized States are not entitled to those formal courtesies or privileges which the Comity of civilized nations considers as reciprocally due. They cannot expect to receive advantages which they deny to others; but, on the other hand, in their intercourse with civi- lized States, they are not oppressed with the necessity of observing the technical solemnities of a jurispru- dence, from a full participation in whose benefits they are sequestered by their barbarism"!. * TTie Helene, 4 Eobinson, is to be respected by civilized 3. See same case epitomized governments, so far at least as in Poison, p. 17. that, in the first instance, inter- t Mr. Dudley Field, in his course with its people is to be ' International Code,' r.ecom- sought through such govem- mends the following rule : — ment, and redress for injuries " "Whenever an uncivilized from any of them is to be de- country has an established manded from it " (p. 30). In government, that government subsequent parts of this book. OP INTEENATIONAL LAW. 135 CHAPTER VIT. Furtter matters to be considered as to the Composition, the Sever- ance, and the Extinction of States. — States under one Chief Ruler. — Personal Union. — England and Hanover. — Real Union. — Incorporate Union. — Eederal Compacts. — Federal State-systems, and Supreme States of Federals. — ^The United States. — Composite States : the British Empire. — How new Sovereign States may be formed. — Voluntary Emancipation by the Imperial Power of part of a Composite State. — Forcible Disruption. — Occupation of New Lands by Bands of Adven- turers. — Conquest. — Voluntary joinder with other States. — Diminution of Territory. — Complete Dismemberment. — Lia- bilities of an Agglomerate State. 1 40. Hitherto we have been consideinng a Sovereign Need of con- . .... . sidering Com- htate Simple, and not supposing it to be (as sometimes posite states. is the case) an organized body, made up from the agglomeration of smaller organic bodies, some of which may at one time have had good claims to be regarded as distinct Sovereign States. We must now consider these State-agglomerations. We must also note the fact that a State sometimes throws forth, as offshoots of itself, political communities, which at first offshoot States are closely connected with the Parent State, and as to property gained by dis- discuss further the territorial covery and occupation of terri- rights of uncivilized tribes. tory, I shall have occasion to 136 FIEST PLATFOEM Effects of sepa- ration and dis- ruption of States. Extinction of States. States under Personal Union. Example of England and Hanover. thoroughly dependent on it, but which, in the course of time, are apt to acquire various amounts of self- action and self-government. We must consider also, before the close of our task, the effects of voluntary separation upon States, and also the results of dis- ruption by Civil War. We must, moreover, not omit to mention how a State may wholly lose International existence, either by voluntary merger in the domi- nions of others, or by forcible conquest and annexa- tion. 141. First, we will consider the union of two or more States under a single Sovereign. It does not always follow that each of these States loses its indi- vidual existence as a Sovereign State. Two or more States may be under the same person as their King, or other political chief, and yet each of them may con- tinue to be a distinct Political Society or State. Hanover and the Kingdom of Great Britain were for more than a century in this position. Such a union, so far as it is regarded at all in International Law, is called di. personal imion. It arises solely from the personal position of the individual, or the body, on whom the right to be Chief Executive Officer in each several State has devolved. Neither State re- cognizes the other as in other respects connected with it by any bonds further than those of close amity. Neither State theoretically regulates or carries on its dealings with a third power, by joint action with the other States. In 1820 the same Prince became King George of England by descent, and King George of Hanover by descent ; but he did not reign in OF D5TEENATI0NAL LAW. 137 Hanover by virtue of his being King of England; nor was his title to the British Crown based on his being the ruler of Hanover. Indeed, as the laws of descent were not the same as to the respective head- ships of the two countries, the personal union was ended at the death of our King William IV. in 1836, when his niece Victoria became Queen of England, and his brother Ernest became King of Hanover*. 142. "A real union of different States, under a com- Beai Union. mon sovereign, is effected when not only the several component parts are united under the same sceptre, but the sovereignty of each is merged in one general sovereignty so far as regards their international rela- tions with other powers, although each may stiU retain its distinct fundamental laws, and peculiar political institutions. Thus the Austrian Monarchy, prior to The Austrian Monarchy. 1849, was a real union, composed of the Hereditary dominions of the House of Hapsburg, of the King- doms of Hungary, of Bohemia, and other States, each of which retained a separate sovereignty with respect to its coordinate States, but which were all component parts of the Austrian Empire with respect to their in- ternational relations with foreigners." By the Consti- tution of 1849, and subsequent organic internal changes, the position of the various parts of this empire relatively to each other have been much varied; and the Hungarian Publicists and Jurists deny that the union between their country and Austria is now * Wheaton, ' Elem. Int. schli, pp. 79, 418 ; Calvo, vol. Law,' vol. i. p. 52 ; Halleck, i. p. 123. 68; Austin, vol. i. p. 62; Blunt- 138 FIEST PLATPOEM Incorporate Union. Federal com- pact. Frequent complication of the charac- teristics of such State ABsociation.s. Systems of Federate States, and Supreme Government of Federates. more than Personal; but the union of the rest of the Empire is certainly Real; and Austria is com- monly regarded, with respect to both the Cis-Leithan and the Trans-Leithan territories, as forming one Sovereign State in the Commonwealth of nations *. 143. A union such as that which exists between the Britannic Kingdoms is regarded by some Jurists as more than a mere Real union, and is styled an " Incorporate Union "f. 144. Sovereign States are sometimes effectively held together by a Federal compact without acknowledging any common sovereign. From the extremely compli- cated nature of many of these leagues, or federal com- pacts, it is sometimes very diiiicult to determine how far the sovereignty of each nation is affected or im- paired by the conditions or regulations of such union J. The test seems to be whether each of such Federate States has or not retained the power of judging and determining for itself whether it will be at Peace or War with any external State. If this right of indi- vidual free action has been reserved to itself by each State, such States must be considered, so far as foreign powers are concerned, as individually responsible for "their conduct, and as separate independent States." States thus circumstanced constitute what the Ger- mans term a " Staatenhund " they make up a system * Halleck, 69 ; Wheaton, ' Elements,' vol. i. p. 53. See especially as the present condi- tion oi" Hungary, Lawrence, ' Commentaire,' vol. i. 283, and Calvo, vol. i. p. 123, and note. t Wheaton, ' Elem.,' vol. i. p. 53 ; Lawrence, ' Commen- taire,' vol. i. p. 285 ; Calvo, i. 124. % Halleck, 70. OF INTEENATIONAL LAW. 139 of Confederated States only for purposes of domestic and internal policy. The Germans give the name of Bundesstaat to a Supreme Government embracing several States*. * See Wheaton, ' Elem.' vol. i. p. 55, and note ; and see Calvo, vol. i. p. 127. There may be a union of States, in which each State has the bare power of refusing its consent to the measures voted by the general governing body, and thereby paralyzing its ac- tion ; but if this is all that the individual State can do, if it can originate nothing for itself, the United body wiU take rank among civilized States as a com- pound Sovereign power. Such was the position of the Seven United Provinces (which we commonly speak of as " The Dutch ") for some centuries. Indeed, a single municipality had practically a power of veto. Readers of Macaulay will re- member his vivid description of the difficulties which this con- dition of things placed in the way of William's great enter- prise in 1688 (Macaulay, vol. ii. p. 414). The varying phases of the confederation of the Swiss Can- tons have made it very difficult to define, from time to time, the status of each Canton as to Sovereignty. See as to the Swiss Confederation, Law- rence, ' Commentaire sur Wheaton,' t. 2, p. 174; and Martin's ' Statesman's Hand- book ' for 1874. It would lead us too far away from our immediate practical subject if we were here to in- vestigate the very complex na- ture of the mediaeval and modern German Empire, called, more correctly, the Holy Roman Holy Koman Empire of the Germanic nation. Empire of the which was founded by Charle- magne, and which endured until 1806, when it was dis- solved in consequence of the reverses sustained by Austria (then, and long before then, the chief power of the Empire) in her warfare with the First Napoleon. It is true that the student of the history of Inter- national Law wUl find that the history of the German Empire forms an important part of his subject. The Empire was, to a great extent, the cause of the growth and long stability of the European political States- system, in which numerous small but independent States were coexistent with power- ful kingdoms. The traditions and maxims of the theory of the Imperial supreme rule taught emphatically the sacred- ness of recognized lawful 140 PIEST PLATPOEM Supreme Fe- 145. A. Federal Government (called sometimes a aeral UoTern- ment. Supreme Federal Goverment) is created when two or more Free States (usually but not necessarily Re- publics), without giving up each its own individuality and local self-rule, bind themselves together for com- mon defence against internal and external violence, and organize a central Government (which may be simple or very complex), to which central Government are appropriated the powers of declaring peace or war, of forming treaties, and of levying a national army and navy for the protection and service of the entire union. This organization for general self- defence is usually (but not necessarily) accompanied by constitutional provisions for joint legislation and joint administration of justice as to specified matters of common concernment and primary importance. Sir Robert Phillimore rightly says* : — The United 146. " The United States of North America fur- Stateg of North __^ America. possession ; and in this and things of the past, the Con- many other respects the great federation of the Ehine, which Jurists of the Continent, can- under French auspices partially tury after century, prepared succeeded to the German Em- the materials and advanced the pire from 1806 to the time of construction of Modern Inter- the fall of Napoleon I., and national Law out of the laws the subsequent Germanic Con- of old Eome. But the Holy federation, which existed from Roman Empire of the Germanic 1815 (except the revolutionary nations is now as completely a period of 1848) to the times of thing of the past as is the the recent overthrow of Austria Eoman Empire of the Anto- by Prussia, and of the instal- nines or that of the Constan- lation of the latter kingdom as tines. The consideration of the paramount power of Ger- things present is more than many, enough for the scope of this * Vol. i. p. 138. book. I pass over, as equally OF INTEENATIOXAL LAW. 141 nish the greatest example which the world has yet seen of a Federal Government." When they first established their independence of Their original Great Britain (which had previously been their Im- perial State), they connected themselves together by a compact of confederation, which gave to a Congress " the chief right of political supremacy (the 'jura summi Imperii '*), including the exclusive cognizance of foreign relations, the rights of war and peace, and the right to make unlimited requisitions of men and money." This made the United States one Sovereign State for the purposes of International Law ; but many difficulties as to enforcing general laws and regulating foreign affairs were left unprovided for by the Federation of 1778 ; and in 1787 a far more com- Their Consti- plete constitutional union was effected. The attempts made by the Southern States to secede from the Northern led to the terrible civil war of 1861-1865. By the complete abolition of slavery throughout the States, which was a result of the success of the Northern States, the solidity of the Union has been greatly augmentedf. 147. Supreme Federal Governments of this kind are sometimes termed " Composite States ; " but the Composite term " Composite State " seems to be not quite applicable to an assemblage of originally Free and * Kent, ' Commentaries,' tional Law, which have arisen vol. i. pp. 220, 222. in America during and since f For a succinct but clear the civil war, see Lawrence, account of the numerous inter- ' Commentaire sur Wheaton,' esting questions in Constitu- vol. ii. pp. 142-161. 142 PIEST PLATFOEM Equal States. The term " Composite State " is better (and is usually) applied to a State consisting of a dominant State and of a system of Colonies, or other outlying dependencies, towards which it stands in the relation of " Imperial State." It is their Imperial State, so long as it does not allow them to determine with what foreigners they shall have peace or war, but reserves this prerogative for itself exclusively. It may have granted them very large powers of self-govern- ment, such, for instance, as the Dominion of Canada, and the chief Australian Colonies now enjoy. But if these colonies and other outlying provinces cannot make peace and war of their own authority, they are still mere members of the Empire over which the Im- perial State is paramount; and the whole Empire forms, for purposes of International Law, one Poli- tical Society, one Sovereign State. This is the case with the vast assemblage of nations and territories in every part of the world which make up the British Empire, over which the Imperial Parliament of Great Britain and Ireland, consisting of Queen, Lords, and Commons, is the Paramount power — Her Majesty our Queen being the visible Representative of the whole Empire towards all foreign bodies*. How new 148. We havc seen one mode by which a new Sove- state may be Tcign State maycomc into existence — namely, when two "■•mec . ^^ more Independent States coalesce or become confede- rate, and form a new incorporate State. United * See Austin, vol. i. p. 264; Maoaulay's ' History of Eng- land,' vol. V. p. 56 ; and ' Im- perial and Colonial Constitu- tions of the British Empire,' p. 56. OF INTERNATIONAL LAW. 143 States may voluntarily dissolve their Union, and each resume its old separate condition of existence. A large State may by the general consent of its members divide itself into two or more independent Sovereign States. In a Composite State the Imperial Govern- Abandonment , 1 i -1 IT. -, of Dominant ment may voluntarily abdicate its supremacy over Power of im- part of its dependencies ; and the part so released may m^y over part become an independent, self-governing community. state.°'"''°^' * Such vpas the case in 1863 when Her Majesty the Queen of the United Kingdom of Great Britain and Ireland declared and proclaimed the abandonment and renunciation of her dominion and sovereignty over the Orange-River Territory in South Africa and Case of the the inhabitants thereof*. This territory (which had Ten^tory.''^^'^ previously been annexed to the Cape Colony) has since the British renunciation become an independent Republic. 149. But the creation of new States out of the The forcible members of Confederate State-systems, or out of the Confederate or dependencies in Composite States, is far more states a more frequently the result of forcible secession or Revolt of OTiginatior 1 ff • ■! • 1 • 1 J.1 o 1 T i. of I16W States. and of civil war, in which the Seceders or Insurgents are successful. The question of when the Belligerent Status of such seceders and revolters ought to be recognized by foreign States is a difficult question ; and the question of when the complete independence of such seceders and insurgents ought to be recognized is more difficult still. Both will be dealt with in a subsequent part of this treatise, where we shall have * See ' Imperial and ColoDial Constitutions,' p. 343. 144 EIEST PLATFOEM Formation of new States by a band of Adventurers. Conquest. Voluntary Merger. to consider what International Rights and duties arise out of a condition of Warfare. 150. There cannot now often occur instances of the seemingly most natural mode, by which in former periods of the world's history the foundation of New States was often effected — namely, by a band of adventurers taking possession of previously unoccu- pied countries, and organizing political communities therein. If the whole or the great majority of such a band of settlers were subjects of the British Crown, their settlement (if valuable and worth claiming) would be considered to have been made for the benefit of the British Crown ; and the territory would be regarded as part of the British dominions*. The other great Powers of the present civilized world would, it is apprehended, deal in a similar manner with any territories that might be occupied by settlers consisting mainly of their subjects. It is, of course, possible to suppose that the old mother-country of the settlers might disclaim the new province, and might waive her right to the allegiance of those who took up their abode there. But such contingencies are impro- bable. 151. A State may lose its existence by being con- quered by a foreign Power, and by being forcibly fused into the dominions of its conquerorsf . Or it may lose its sovereign independency by voluntary * See Forsyth's 'Constitu- conquest shall be followed by tional Cases,' p. 20. (a) treaty of cession, or (V) by t We shall have to consider the long acquiescence, volun- in another part of this treatise tary or involuntary, of the how far it is necessary that conquered population. OP INTEENATIONAL LAW. 145 merger in a system under a Supreme Federal Go- vernment, or by voluntarily becoming part of a Com- posite State. 152. The mere weakening or diminution of a State Diminution of by its losing portions of its territories and population '^"''°'y- does not aiFect its personal identity, or abolish its rights and duties relatively to other Powers. And Complete dis- where a State is entirely dismembered either by war ""^"^ ^'^'"^" ' or by voluntary separation into several distinct integral States, its rights and obligations as to foreign States do not become nullities, but, unless they have been made the subject of a special agreement, they devolve rateably upon the several parts*. Mr. Justice Story, This works no in a judgment of the Supreme Court of the United foreign right?. States, says of this, " It has been asserted as a prin- ciple of Common Law that the division of an Empire creates no forfeiture of previously vested rights of property ; and this principle is equally consonant with the common sense of mankind, an d with the maxims of external justice"!. 153. With regard to the liability of an agglome- Liabilities to rated State, for the antecedent obligations of the States, ^gif^erated that unite in a federate system with it, or that blend '***°" in it, the converse of the rule, which has been just stated, is generally true. Halleck sums up the matter thus : — " Where several separate States are incorporated into a new Sovereignty, the rights and obligations which had * Kent, vol. i. p. 28 ; Phil- Cranch Eep. 50, cited by limore, vol. i. p. 157; Halleck, Phillimore, vol. i. p. 158, n., p. 78. and HaUeck, p. 78. t Terret v. Taylor, 9 146 FIEST PLATFOEM accrued to each one separately, before the incorpora- tion, belong to, and are binding upon, the new State which is created by such incorporation. But the rule must be varied or modified to suit the nature of the union formed, and the character of the act itself of incorporation in each particular case. Thus a distinc- tion must be made between the mere union or con- federation of States, and the creation of a new Sove- reignty or Composite State. In the one case, the obligations would remain with the States originally separate ; while in the other case they would, as a general rule, be transferred from the constituent parts to the new body political. But if bj the act of incor- poration and by the constitution of the Composite State, the rights and obligations of the component parts were to remain with the States originally sepa- rate, it would hardly be contended that the new Sove- reignty had either acquired the one or incurred the other. What might be claimed or incurred, under a general rule of presumptive law, could hardly be en- forced against written instruments which provide especially against such claims or obligations. Never- theless, if one of these constituent parts, originally a separate State, should by the act of incorporation vest in the new Sovereignty all its means of satisfying its debts and obligations, the new State would, even in the case of a mere federal union, be bound to assume such debts and obhgations to the extent of the means so transferred "*. * Halleck, p. 79. OP INTERNATIONAL LAW. 147 CHAPTER VIII. Of Pebpect Ri9hts of States. Definition of " Perfect Eight " repeated.— Classification of " Rights." — Main Right the Right of Self-preservation. — Right to Security. — Right to anticipate attack. — Eight to In- demnity. — Balance of Power. — Rights to Self-improvement ; to protect Honour.^ — -The National Flag. — Rights of compo- nent Parts of State. — Duty of State to protect its Citizens. — States' Responsibility for their Acts. — Right to Independence. — To exclusive Territorial Jurisdiction : Exceptions, Foreign Sovereign, Ambassadors. — Rights as to Foreign Ships in Ter- ritorial Waters, Distinctions as to Private Vessels and Men- of-War. — Peculiar Doctrines of French Courts as to Private Ships. — Nature and Origin of War Ship's rights as to Exterri- toriality. — Discussions at the Geneva Arbitration. — Privilege does not extend to Crews on Shore. — Perfect Right of a State, though it may he against Comity, to exclude Foreigners and to control Commerce. — Rights of Property. — Rights as to Rivers, as to Enclosed Seas and Open Seas. — Modes of Acquisition, Alienation, and Loss. — Domain. — Dominium Eminens. — Rights by Discovery. 154. It has been explained already* that in Inter- Definition of -r. /. -X- T >> "Perfect national Law the term " Perfect Right means a Right." * See pp. 65, 15, suprA; and le droit de contraindre ceux qui observe also the following ex- ne veulent pas satisfaire a tractfromVattel(Pre]iminaires, I'obligation qui y repond; et sect. 17): — " Le Droit parf ait le droit imparfait eBt celm qui est celui auquel se trouve joint n'est pas accompagne de ce l2 148 PIRST PLATFORM Classification of Eights of States. Pacific Eights. Eights arising out of State of Warfare. Primax-y Eights. right which is sanctioned by Positive Law, and the breach of which is considered to constitute a " Casus BeUi." 155. Without reiteration of the epithet "Per- fect," it will be ' understood that in this and the subsequent chapters of this book, a " Perfect Right" is meant whenever a Right of a State is mentioned. 156. It is convenient to classify the Rights of States into : — 1st. Those General Rights which do not arise out of a condition of Warfare. These are sometimes called " The Pacific Rights " of States ; 2nd. Those Rights which arise out of a condition of actual warfare. 1 57. The most important and general pacific Rights are also termed " Primary Rights." The Primary Rights of States are often stated to be — droit de contraint. L'obliga- tion parfaite est celle qui pro- diiit le droit de contrainte ; Vimparfaite ne donne h, autrui que le droit de demander. " Oneomprendramaintenant sans difficulte, pourquoi le droit est toujours imparfait quand I'obUgatioii qui y re- pond depend du jugement de oelui en qui elle se trouve. Car si dans ce oas-l&, on avait droit de le contraindre, il ne dependrait plus de lui de re- soudre ce qu'il a k faire pour obeir aux lois de sa conscience. Notre obligation est toujours imparfaite par rapport a autrui, quand le jugement de ce que nous avons k faire nous est reserve ; et ce jugement nous est reserve dans toutes les oc- casions ou nous devons Stre libres." Dr. Travers Twiss,who translates tbis passage in the 12tb page of his first volume, adds the observation, " A Per- fect Right alone would thus seem to be the subject of Law [i. e. of Positive Law] ; an imperfect Right is a sub- ject of Comity." OP INTEENATIONAL LAW. 149 The Right to Security, The Right to Independence, The Right of Equahty, The Right of Ownership, And Empire. These (and other ramifications of rights which are ah Branches added by some writers) are in truth all mere branches seif-preser- and developments of the one Great Right of Self-pre- servation. Instinct prompts every animal to exercise this right : — Reason and Justice teach every man to claim it for himself, and to respect it in others*. The same is the case with regard to every assemblage of human beings, which, under the conditions described in a previous chapter, constitute a Sovereign State. 158. With regard to the subdivisions of this great Right, which have just been mentioned, the Right of all States, small or great, to be treated as equal in the eye of Internationa] Law, has been already con- sideredf. Rights of Ownership and Empire will be discussed presently. The important branches of Right, which are first to be dealt with, are the Right Rigtt to Secu- to Security and the Right to Independence. mght to inde- 169. These two Rights commingle and become P«"'i«"''«- almost identical for many purposes ; but such is not the case for all purposes ; and on some points they come into collision, or at least into apparent collision, with one another J. It is best, therefore, * " Quod quieque propter f See p. 114, swprd. defensionem sui fecerit jure % The collision of Eights feeisse videatur." — Digest. De wiU be the subject of a distinct Just, et Jure. chapter. 150 FIRST PLATFOEM to follow the usual course, and to discuss them separately. Eight of Self- 160. A State's Right to Security means not only Toires Eight the Right to defend itself against actual direct attack, attack'"^'' ^ but the Right to preserve itself from injury by antici- pating attack, in cases where it is manifest that attack is intended, and that such attack cannot be prevented by any pacific measures, which do not involve undue self-abasement and loss of real national dignity*. In such cases (as in those of quarrels between indivi- duals) the real aggressor is not he who first employs force, but he who renders the employment of force necessary. Eight to exact 161. A State may do more for its Security than reparation. . n->- i simply prevent or repel attack. There is a Right springing from the same great Primary principle of Self-preservation, which, when an injury has been . inflicted, authorizes the injured Nation to obtain com- plete reparation, and to employ force for that purpose. Eight of In- This may be termed the right of indemnity. 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 * " The Eight of a Nation attaquant eZZe-mgme. C'est ce to preserve itself from injury is que conseillaient deJEt les lois a Perfect Eight." — Travers Eomaines ' Melius est oceurrere Twiss, vol. i. p. 12. " D^s in tempore qiiam post exitum que le danger existe, la nation vindieare.' (Code, ' Qiiando menacee a le droit d'opposer la lieeat unicuique') ". — Heffber, force, et mdme d'aller au devant Droit International, p. 59. de Fattaque qui la menace, en OP INTERNATIONAL LAW. 161 justified in taking precautions against a second attack, by depriving its enemy of the means of renewing his aggression. The justice of all War depends upon the principles involved in the right of security and the right of indemnity. "Whatever strikes at those rights strikes at the Perfect Rights of a Nation, and gives a just cause of war. Every right, which a Nation possesses under the Common Law, has its correspon- ding obligation. The right of security accordingly involves the obligation 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 [legally] mistress of her own actions, as long as they do not affect the per- fect rights of other Nations" *. 162. A Nation is also entitled to provide for her The Balance own future and permanent Security by taking mea- sures, either singly or in concert with other nations, to prevent any one nation from acquiring a prepon- derance of power, perilous and menacing to the secu- rity of its neighbour. This is called the doctrine of the Balance of Power. It involves many diflBcult questions. We see plainly that when the Security of one State is protected in this manner, the Security and the Independence of another State may be im- paired. I will reserve for a separate chapter, on * Travers Twiss, vol. i. p. 13. -perfect rights of other nations, is A reference to the context -will speaking of her freedom so far show that this learned jurist, as regards the restraints of in speaking of a nation being Positive Law only. He points mistress of her own acts, so out very forcibly her ampler hng as she does not infringe the obligations under Moral Law. proTe. 152 'FIRST PLATFOEM "The Conflict of International Rights," our conside- ration of this topic, and of certain other topics of a similar character. Such are the Right (real or supposed) of a State to protect its own Security by checking the contagious spread of anarchical and per- nicious doctrines and practices in a neighbouring State ; and the right of a State, when in extreme peril, to seize the territory, or forts, or fleets of an unoffending neighbour, lest they should be seized and employed against it by a hostile State. Right to Pre- 163. Subject to the question, which will b^ dis- Bijht™^im- cussed hereafter, of how far the principle of the Balance of Power may justify extraneous checks on a State's self-aggrandizement, we may unhesitatingly assert, that a State's right to Security does more than justify it in seeking to preserve its territories, its property, . its population, its military and naval resources, its means for developing human happiness, physical, in- tellectual, and moral. The right to Security autho- rizes and requires a State to seek not merely to preserve all these things, but to increase and to im- prove them. Vattel says truly of a State's duties towards itself, that " Se conserver et se perfectionner, c'est la somme de tous devoirs envers soi-meme." In truth, the two duties coincide. It is only by incessant efforts at amelioration that the silent, secret, ceaseless processes of deterioration, worked by " the great innovator Time," can be counteracted. "A State," writes Vattel, "that in- creases her power by all the acts of good govern- ment, does no more than what is commendable ; she OF INTEENATIONAL LAW. 153 fulfils her duty towards herself without violating those duties which she owes to other Nations." The right of every " Independent State," says Wheaton, " to increase its national dominions, wealth, population, and power by all 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 reve- nues, arts, agriculture, and commerce, the increase of its military and naval force — is an incontrovertible right of Sovereignty, recognized by the general usage and opinion of Nations"*. 164. A State has the right to repel and to exact Eight of state T (••••i-1 rm-1- '° protect its redress tor mjuries to its honour. Ihis also is a Honour. right of Self-preservation. For, among Nations, as among Individuals, those, who tamely submit to insult, will be sure to have insults and outrages heaped upon them, until the sense of intolerable wrong drives them into physical contest under probably disadvan- tageous circumstances, and after they have deprived themselves of that general sympathy which manly and consistent conduct wiU always obtain for even the unsuccessful brave. Without doubt vain-glory and bluster are as detestable in a nation as in a private person. True Honour consists in combining self-respect with respect for the feelings and rights of othersf. When " Glory " is thus understood, Vattel's * Vattel, liv. 3, c. iii. sec. 42. f The single Greek word Wheaton's ' Elements,' part ii. AiSms simply and eloquently c. i. sect. 3. These two pas- expresses all this, and much sages are quoted hy Dr. Travers more. Twiss, vol. i. p. 147. In making serious contumely 154 EIEST PLATPOEM maxim is perfectly true, that " Puisque la gloire d'une Nation est un bien tres-reel, elle est en droit de la defendre, tout comme les autres avantages. Celui qui attaque sa gloire, lui fait injure. Elle est fondee a exiger de lui-meme par la force des armes, une juste reparation " *. The National 165. The spccial sjmbol of a State's honour, power, and glory is its national flag. For any insult offered to the National Flag the most prompt and full apology and reparation should be required. Sir James Mackintosh has well said that " an insult offered to the British flag flying on the slightest skiff, is, if unrepaired, a dishonour to the British nation " f. And we must remember that other States are in this respect as justly sensitive as we ourselves can be. A state's 166. A State's rights and duties as to self-pre- Rights and duties as to its servation extend not only to what we may call the members. corpus, the main entity of the State, but to all its members, whether we consider it territorially, or with reference to the human beings who are members of the State, wherever they may be resident. The bulk of a State has no moral right to abandon a province to honour a cause for hostile sad contra personae dignitatem." proceedings, International Law — See "Warnkoenig, ' Institu- foUows the Roman Civil Law, tiones Juris Romani Privati,' according to which " Dignitas sects. 126 and 986. quoque hominis in jure con- * Livre 1. c. xv. sect. 191. sideratur ;" and " Injuria " in f Mackintosh, p. 763, one- the form of contumely is de- vol. edition. The passage is scribed as " Injuria non bonis cited by Dr. Phillimore, vol. ii. damnum factum intelligitur, p. 34. OF INTEENATIONAL LAW. 155 or a town against its will, or even to cast ofiF a reluctant individual citizen, unless under the con- straint of imperious necessity, and in cases where very strong reasons, based upon the public safety, make a special law of action requisite for the occasion*. * Vattel, livre 1. oh. ii. § 17. The writings of some recent Publicists contain expressions which, if taken literally and without reference to the con- text, might seem to imply the dangerous doctrine that a State's cession of a part of its territory must be always both morally wrong and legally in- valid, unless the inhabitants of the ceded portion consent to the transfer of their nationality. Thus, in Bluntschli (Droit In- ternational, sect. 286, p. 174), we read that, "Pour qu'une cession de territoire soit valable, il faut : [inter alia] comme minimum, la reconnoissance de la cession par les personnes qui, habitant le territoire cede et y jouissant de leurs droits poK- tiques, passent au nouvel etat." But Bluntschli, after proceeding to discuss the manner in which the will of the transferred population should be expressed, adds these words: — "Quelle que soit la forme choisie, la decision principale ne pent ce- pendant dependre du bon plaisir de la partie de la population qui doit changer de nationality; cette population n'est que la partie et non le tout. La deci- sion principale depend des etats ou des peuples, qui, disposent des parties de I'dtat ou du peuple." This overrules the first-cited dictum, and must be taken to express M. Bluntschli's opinion on the subject, and the true opinion also. At p. 302, vol. i. of M. Calvo's work we read : — " D&- ormais, pour rendre definitifs et valides la cession le transfert ou la vente d'un territoire, il faut que les habitants mSme du pays appele a changer de nationalite y donnent leur con- sentement expres ou tacite." M. Calvo calls this a " nouvelle r^gle Internationale ; " but the only authorities which he gives for its establishment are re- ferences to the course taken in 1860, when Savoy was trans- ferred to Prance, in 1863 when the Ionian Isles were trans- ferred to Greece, and in 1866 respecting the cession to Prus- sia of the northern districts of Schleswig, and the cession of the Venetian territory by France to Italy. It is of course very desirable that the consent of the in- 156 riEST PLATFOEM Duty of State 167. A State has the right, and it is the duty of a citizens where- State, to ensure security for the persons and property of her subjects, wherever they may be resident. If an injury be done by foreigners to a man who is in his own country, there is at once a commission of direct injury to the territorial security and indepen- dence of the country, the soil of which is thus out- raged, and the right of the injured State to exact redress is self-apparent. If the injured citizen be resident in a foreign country, the international wrong is less obvious, but not less real. Vattel says * : — " Whoever illtreats the citizen of a State commits an indirect offence against the State, which is bound to protect its citizens. The supreme power of that State ought to exact redress for such injury, and to oblige, if it has the power, the assailant to make complete reparation for the wrong, inasmuch as otherwise the citizen could not obtain the primary object of civil association, which is Security " f. habitants of any part of a hostile occupation of a territory, State's territory should be ob- of how far the actual taking tained when it is proposed to possession of ceded territory is alienate such portion. But it necessary to complete a title by is a widely different matter to cession, and of the condition of make such a consent an indis- the ceded and occupied terri- pensable sine qud non condition, tory's institutions, will be dis- Such a principle woidd make it cussed in other parts of this impossible to save the whole of volume, a defeated State from utter ruin * Liv. 2. vi. sec. 71. and conquest by the sacrifice of t See as to this subject a portion. PhilUmore, vol. ii. p. 3 et seq. The topics of how the laws Bluntschli has pointed out that of a territory are affected by a wrong of this kind may be OF INTEENATIONAL LAW. 157 168. But while a State has thus the right to Correlative .,.,..,,.,. ... , ,. responsibility protect its individual citizens, it is under a correlative of state for acts of its citizens. committed : — Ist, directly, by a proceeding in violation of Inter- national Law taken by tbe of- fending State itself against the citizen of another State ; or, 2, indirectly, by the State neglect- ing to give the foreigner, whom individuals within its jurisdic- tion have injured, proper pro- tection or redress. The whole passage in Bluntschli is im- portant; and I quote it here, though I shall have occasion to revert to the subject in the chapter on the Conflict of Eights. " L'Etat a le droit et le devoir de proteger ses res- sortissants k I'etranger par tous les moyens autorises par le droit international : (a) Lors- que I'etat etranger a precede contre eux en violant les princi- pes de ce droit, (b) Lorsque les mauvais traitements ou dom- mages subis par un de ses res- sortissants ne sont pas directe- ment le fait de I'etat etranger, mais que celui-ci n'a rien fait pour s'y opposer. " Chaque etat a le droit de demander en pareil cas la re- paration de I'injustice, le rem- boursement du dommage cause, et d'exiger, suivant les circon- stances, des garanties contre le renouvellement de pareils actes. "1. Examples. — L'etatetran- ger arrete sans motif des voya- geurs, les reduit en esclavage, les force h abjurer leur religion, les depouUle de leur biens, les traite avec cruaute, viole en leur personne les traites de commerce ou de libre echange entre elles. Les etats sont, U. est vrai, les seules personnes du droit international, mais les oitoyens aussi sont, par I'inter- mediaire des etats, places sous la protection de ce droit. En 1867, la Grande-Bretagne a declare la guerre an roi d'Abys- sinie, parce qu'il retenait Ule- galement des Anglais prison- niers. " 2. Lorsque ce n'est pas directement le gouvemement etranger, les employes de cet etat, ou les habitants appuyes pax leur gouvemement, qui attentent a la personne ou aux biens du ressortissant d'un etat etranger, mais qu'au contraire le dommage provient de per- sonnes ayant un caractere privd (brigands, voleurs, rodeurs, etc. ), c'est a I'etat dans lequel le delit a ete commis qu'incombe en premiere ligne I'obligation de reparer I'injustioe et de punir les coupables. Cet etat aurait pleinement raison de ne pas tolerer I'immixtion des autorites etrangeres dans Tadministra- 158 FIE8T PLATPOEM Chief Justice Cookburn's exposition of this. duty to prevent its citizens from injuring other States; and if a State fail to do this, it is bound in general to make reparation for such injuries. 169. Sir Alexander Cockburn has explained this forcibly and fully in his recent judgment in the Geneva Arbitration. The vpords of the Lord Chief Justice of England are as follows : — " Whatever obligations attach by the general prin- tion de la justice. Le citoyen lese ou offense doit done, mSme s'il appartient k una autre na- tionalite, s'adresser d'abord aux autorites de I'etat oil il tabite. Mais si on refuse de lui rendre justice, alors I'etat dont la partie lesee est originaire pourra in- tervenir. II faut ici eviter deux extremes, I'un consistant a laisser ses ressortissants sans protection contres les injures qui peuvent leur etre faites k I'etranger (c'etait jusqu'a ces derniers temps le cas des citoy- ens des petits etats AUemands), I'autre consistant a s'immiscer dans 1' administration et la jus- tice des pays etrangers, et a agir immediatement par la voie diplomatique en faveur de ses ressortissants avant d' avoir cberche a leur faire rendre justice par les moyens ordi- naires (on a souvent reproche cette tendance k I'Angleterre). Dans le premier cas, on com- promet la surety de ces ressor- tissants a I'etranger; dans le second, on porte atteinte a I'egaHte des etats et a I'inde- pendance des tribunaux. II faut du reste supposer dans tous ces cas la bona fidis des parties. Lorsque les tribun aux d'un etat, tout en respectant les formes se rendent evidemment coupables de deni de justice, et rejettent la demande d'un etranger a cause de sa natio- nalite, ou bien, ne lui faisant droit qu'en apparence, le lais- sent en realite sans protection centre ses perseeuteurs, dans tous ces cas, on pourra inter- venir diplomatiquement en faveur de la partie lesee. CeUe- ci n'a droit a la protection de ce gouvernement que si le droit international a ete foule aux pieds en sa personne, mais non lorsqu'elle a perdu un proces qu'eUe devait gagner dans son opinion, ou lorsque le jugement qui I'a condamne est declare injuste par les jurisconsultes de son pays." — Page 223. OP INTEENATIONAL LAW. 159 ciples of the law of Nations to the State or Com- munity as a whole, are equally binding on its subjects or citizens ; for the State or Community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law is equally forbidden to its component parts. In this sense, and How an in this sense only, can it be said that International international _ ■ ii " 1 J.1 1 i? J.- Law becomes Law — m other words, the common law ot nations — an offence ako forms part of the common law of England ; for the murddpai* greater part of the rules of International Law, by offender's^ which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, as Great Britain forms part of the great fraternity of nations, the English common law adopts the fundamental principles of International Law, and the obligations and duties they impose ; so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them, by reason of which any act done in contravention of such obligations becomes an offence against the law of his own country. "But the subject who infringes the law of his own Extent of Ms country by violating the neutrality which the law individuaUy. enjoins him to maintain is amenable for his offence to the law of his own country alone, except when actually taking part in the war as a combatant, when of course he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International Law knows of no relations between a State and the subjects of another State, but only of those which exist between State 160 FIEST PLATFOEM and State. But this being so, the belligerent against whom a breach of neutrality has been committed by the subject of a neutral State, as distinguished from the State itself, may have a right to hold the State responsible, and to look to it for redress. For the State (that is, the Community as a whole) is bound to restrain its individual members from violating obliga- Extenfcof tious which, as a whole, it is bound to fulfil. Not, state s Be- sponsibiKty. howevcr, that the responsibility of the State for the acts of its subjects is absolute and unlimited. Reason has set bounds to a responsibility which would other- wise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent [i.e. the foreign State] to treat the offending neutral as an enemy, and declare war against him. He [the foreign Sovereign] is not bound to accept pecuniary amends as an alterna- tive. Now reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects when it can reasonably be expected to prevent them. There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly, and in defiance of the law. The open buying of men, and expeditions departing from its territory by land or water, are things which a Government would properly be expected to prevent, and for which, if not prevented, it would be answerable. But a Government could not be so held in respect of things it cannot prevent, such as the conduct of individual subjects in enlisting or serving in the land or sea OF INTERNATIONAL LAW. 161 force of a belligerent — or things done clandestinely or surreptitiously, so as to dude observation or detec- tion, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a Government, and the condition of its immunity. If this diligence has been wanting, a belligerent [i.e. a foreign State] has just cause to hold the neutral State responsible for wrongful acts done by its sub- jects in violation of neutrality, and from which it, the belligerent [i.e. the foreign State], has suffered"*. 170. The observations of Vattel on this subject are Opinions of cited by General Halleck, with the addition of com- HaUeok. ments of his own, in a very valuable passage which I will transcribe!. "The nation ought not to suffer its citizens to do an injury to the subjects of another State, much less to offend the State itself. And that, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of Nature, but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, and, in a word, from every thing that may be of prejudice to others. If a sovereign, who might keep his subjects vi?ithin the rules of justice and peace, suffers them to injure a foreign nation, either in its body or its members, he * The word "Belligerent" America. But the principles is frequently used in this Judg- laid down are generally appli- ment, as the Chief Justice was cable to the relations of States then speaking with special re- towards each other, ference to events that had oc- t Halleck, p. 274. curred during the Ciril War in M 162 PIEST PLATFOEM does no less injury to that nation than if he injured them himself. In short, the safety of the State, and that of human society requires this attention from every sovereign." Again, "As it is impossible for the best regulated State, or for the most vigilant and absolute sovereign to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation, or to the sovereign, all the faults of the citizens. We ought not then to say in general that we have received an injury from a nation, because we have received it from one of its members." The act of the individual is not neces- sarily and of consequence the act of the State ; nor would it be just in all cases to hold a State re- sponsible for the act of each individual member of which it is composed. The responsibility of the State results from its neglect or culpable inability to control the conduct of its subjects, or from its neglect or culpable inability to punish the offences and crimes which they commit. " But," says the same author, " if a nation, or its ruler, approves and ratifies the act committed by a citizen, it makes that act its own ; the offence must then be attributed to the nation as the true author of the injury, of which the citizen is perhaps only the instrument. So, also, the sovereign who refuses to cause a reparation to be made of the damage done by his subject, or to punish the guilty, renders himself in some measure an accomplice in the injury, and becomes responsible for it. If a nation should refuse or" fail to pass the laws necessary to OF INTERNATIONAL LAW. 163 restrain its citizens from aggressions upon other States, or upon their citizens, or if, such laws being enacted, the officers of the State neglect to enforce them, and such aggression by individuals result there- from, the State is unquestionably responsible for the injury *. 171. The discussion of a State's Right to Inde- state's Bight pendence comes next in order. Much, however, of deuce. ^^*"' this subject has already been unavoidably anticipated. We have seen that for a State to have existence in the eye of International Law it must be a State with This is Independent powers of making peace or War, and of entity as'a ' forming alliances according to its own discretion f. We have also seen that every State must have the right to establish, alter, or abolish its own internal form of Government, and to choose its own rulers at its own free will — and that any changes which it may make in this respect do not aflPect its claims upon other States, or the liabilities which it may have contracted towards them|. 172. A State has a right to independence from all Freedom from . . . administrative foreign control in the admmistration as well as in the control ab framing of its laws. How this right may conflict with the right, already adverted to, of each State to protect its subjects, though commorant in a foreign country, from injury, will be discussed hereafter. The frequent recognition by one State of the laws of * The character and the ensuing chapter " On the Con- amount of negligence which fliot of Eights." makes a State liable for the t See p. 93, supra. acts of its individual members J See p. 102, supra. wUl be further discussed in the M 2 164 FIEST PLATEOEM Eecognition ex comitate only of foreign laws. Huber's G-eneral Kules. another State as to contracts made abroad, as to matters of domicile, and other similar things, is a topic coming under that division of International Law which treats of the Comity of Nations, a division which is reserved for notice presently. Suffice it to say here, in the words of a judgment of one of our English Courts*, that " when the tribunals of a State determine the rights of foreigners in accordance with the laws of the countries of those foreigners, the State, in which litigation takes place, does so, not on account of any force which foreign laws have over it, but because it courteously adopts those laws as part of its own law for the purpose of regulating those rights." Although this is a subject more properly belonging to a discussion on the Comity of Nations than to one on a State's perfect rights, I may here usefully quote the principal rules on the subject as they are laid down by the Dutch jurist Huber, and adopted by Story and by Bowyer. The original Latin text may be seen in the note to p. 162 of Sir George Bowyer's work on Public Lawf. The rules are three in number : — " 1. The Laws of every State have force everywhere within the boundaries of the said State, and bind all who are subject to the Government of the said State ; but they have force no further J. * Caldwell v, ValdessUngen, 8 Hare, 426. t And in Lawrence, ' Com- mentaire,' vol. iii. p. 52. X Except over tte State's own subjects to this extent, that such subjects, on coming within the territorial jurisdic- tion of their own country's tribunals, are punishable for or INTEENATIONAL LAW. 165 " 2, All persons who are found within the boun- daries of a State are to be deemed subject to the Government of the said State, whether their residence be permanent or temporary. " 3. The Rulers of States, by Comity, give to the laws of every people, which are in force within the territories of that people, effect everywhere [over matters that have arisen within that people's terri^ tbries], so far as such laws do not prejudice the powers or rights of other governments or their citizens." 173, There is certainly one exception (there are. Exception.?. perhaps, more exceptions) to this general rule that a State has full and absolute jurisdiction over all persons who are found within the boundaries of a State. An exceptional case arises when a foreign Sove- Caseof reign (by which is meant here the individual person Soyereigns. who is the actual chief of a foreign State) is travelling through other countries, or is temporarily resident therein*. In such a case the foreign Sovereign is considered as entirely free from the law of the land, so far as regards its Civil jurisdiction. With regard to his liability to the law of the land for any crimes that he may commit therein, the better opinion seems to be that here also he is exempt from jurisdiction of the local tribunals, though the State whose hospitality he breaches of those laws where- will be discussed elsewhere, ever committed. This subject * 2 PMUimore, 120. 166 FIEST PLATFORM has abused, and whose laws he has outraged, may justly force him to leave its territory, and may compel the country of which he was the representative to make reparation for the wrong which he had com- mitted. This immunity of a foreign Sovereign from local jurisdiction exists only where he is sovereign de facto, not where he merely claims to be Sovereign de jure. A Prince who has abdicated, or has been deposed, has no such rights*. Ambassadora. 1^4. The ambassadors of a foreign State have a similar immunity from the jurisdiction of the local tribunals, criminal as well as civil f. The great pre- ponderance of authorities is in favour of this posi- tion to its full extent, though some Publicists have drawn distinctions between- an Ambassador's liability for Mala in se, and his liability for Mala prohibita. How a State may, and ought, to deal with an Am- bassador who offends criminally against it, and how far the members of an Ambassador's suite partake in his privileges as to exterritoriality, are topics which will be best dealt with when we expressly discuss the rights and usages of Diplomatic intercourse between States. * " Tout Souverain qui a honneurs personnels auquels il abdique, ou a e'te depouille de avoit droit avant son abdication I'autorite supreme, n'a plus ou sa decheance, alors surtout aucnn titre legal aux faveurs que cette derniere pent n'etre at aux droits internationaux. pas irreyocable." — Calvo, vol. i. Toutefois les autres souverains p. 641. restent libres, au gre de leurs t 1 Calvo, 655 et seq. Wool- convenances, de continuer h, lui sey, p. 149 et seq. accorder les distinctions et les OP INTEENATIONAL LAW. 167 175, Certain privileges with regard to jurisdiction are granted by International Law to ships when within the ports of a foreign State. There are in this respect important distinctions between private vessels and pubhc ships, which last class includes the armed and commissioned ships of a foreign State, and vessels chartered by a State to convey sovereign personages or their representatives*. It will be con- venient to speak first of ships belonging to private persons. 176. With respect to these (that is, to ships often called private vessels), " The general rule of Law is that, except under the provisions of an express stipu- lation, such vessels have no exemption from the terri- torial jurisdiction of the harbour or port, or, so to PriTileges of Foreign ships as to terri- torial juris- dietion. Distinction between PriTate and Public Tcssels. General rule as to Private * "Woolsey, p. 101. The following passage from Calvo, as to what constitutes a ship of War (le batiment de guerre) may be useful : — " En principe ce qui constitue le batiment de guerre, ce n'est pas la force de I'armement, le nombre des canons, mais bien le fait de la possession par I'^Etat, et du commandement par des officiera appartenant k I'armee de mer. Toutefois I'usage et les conve- nances mutueUes ont fait com- prendre dans la categorie des batiments de guerre les navires marchands affretes speciale- ment et en entier pour le trans- port de troupes, de vivres, de rechanges ou d'autres objets appartenant au gouvernement et commandes par des offlciers de la marine militaire. " A la verite, ces navires ne sont pas dans la striote accep- tion du mot des batiments de guerre, puisqu'Us n'appartien- nent point a I'Etat et ne sont pas propres au combat; mais tant qu'Us sont exclusivement et integralement employes au service de la marine militaire, tant qu'ils ne se livrent ^aucune operation commerciale, ils sont assimiles aux batiments de I'^tat et autorises comme tels h arborer le pavilion et la flamme de guerre." — Vol. i. p. 469. 168 FIEST PLATPOEM speak, territorial waters {mer littorale) in which they lie." 177. The rule is thus stated, I believe correctly, by Sir R. Phillimore* ; and it is fully estabhshed by Important the reasoning of the American Chief Justice Marshall American . . n ■ i ■ r> i i judgment lu a Very important casef , which is referred to by this rule. Sir R. Phillimore and other publicists as the leading case on the subject. In that judgment it is said that " When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the in- habitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would sub- ject the laws to continual infraction, and the Govern- ment to degradation, if such individuals or mer- chants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the juris- diction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be con- strued to grant such exemption." 178. There is, however, one great Maritime Power * Vol. i. p. 372. V. M^Eeddon and others, 7 t The schooner ' Exchange ' Cranch's ' Reports,' p. 144. OP INTEENATIONAL LAW. 169 whose jurists and judges maintain a doctrine which would introduce a very extensive exception to this general principle. The French regard it as a positive PeouUar doc- rule of International Law that, with regard to matters jurispru-'^^"'' which occur on board private ships when in a foreign ^'^^' port, there is a distinction between offences committed by one or more of the crew against another or others of the crew which do not affect generally the peace and good order of the port, and, on the other hand, crimes and offences committed, even on board the ship, in any one of the three following cases : — a. By any of the crew against strangers. 6. By strangers while on board of the ship. c. By any of the crew against any other of the crew, if in this last -mentioned case the crime or offence be of such a nature as to distract the peace and good order of the port. 179. With respect to the last-mentioned class (em bracing the three cases just particularized), the French jurists admit the jurisdiction of the local tribunals over the private ship and her crew ; but with respect to the first-mentioned class (that in which an offence, committed by one against another of the crew, does not disturb the general good order of the port), the French jurists maintain that the vessel, though a private vessel, is to be considered as part of the territory of the nation to which she belongs, and that neither she nor her crew are, with regard to such offences, under the jurisdiction of the country within whose port the vessel is lying*. * "Wheaton's • Elements,' Halleek, 172 ; Ortolan, ' Diplo- vol.i. p. 172; 1 PhiUimore, 374; matie de la Mer,' Hv. 2, c. 13. 170 PIEST PLATFOEM Erenoh deci- sions on the subject. Case of the 'SaUy.' Case of the ship ' Porsalt- ning.' I will refer to two cases which will show to what an extent the French authorities have carried this doctrine. One is a case in which an American merchant ship was lying in the harbour of Marseilles. The second officer of this ship inflicted a severe wound on one of the sea- men who had disobeyed orders. The French Superior Court decided that the case was one for the jurisdiction of the American Consul, and not for that of the French Local Tribunals. The French judges admitted the general principle of the crew of a foreign merchant ship being amenable to the laws of the place in which she is lying, but pronounced that "the case is diiferent with regard to offences committed on board of a neutral vessel by one member of the neutral crew against another of the same crew. In such a case the rights of the neutral power ought to be respected as taking action with regard to the internal discipline of the ship, in which no local authority ought to intrude its interference, so long at least as its aid and assistance are not demanded, and the tranquillity of the port is not compromised"*. 180. In the other case to which I allude, the crime of poisoning was committed on board of the Swedish vessel ' Forsaltning,' while she was anchored in the river Loire. The French Government directed the French local court to deliver up the criminal to the proper authorities on board of his own ship f. * Case of the ' Sally.' See Com. p. 164, note (edition of the judgment in Ortolan. Its 1858), aadbyPhillimore,vol. i. material parts are given by 375. Wheaton, 1 El. 131. It is re- f Pliillimore, p. 375. f erred to more briefly by Kent, OP INTEENATIONAL LA^. 171 181. M. Ortolan has given a skilful and elaborate Reasons given statement of the reasons which, in his opinion, justify fJr the French this doctrine of Prench jurisprudence. He draws the following distinctions between the position of a mer- chant ship, and that of an individual traveller or tem- porary resident within the territorial boundaries of a foreign country. " On ne peut pas assimiler un navire de commerce et son equipage aux personnes isolees qui voyagent ou sejournent dans un pays etranger, et qui, par cela seul, pour tout ce qui concerne la police et la surete, sont entierement soumises aux lois et aux autorites du pays dans lequel elles se trouvent. " Bien que le navire de commerce ne soit pas une emanation, une representation directe de la puissance de I'Etat auquel il appartient, neanmoins il contient une association organisee et regie interieurement en conformite des lois de cet Etat ; son equipage est enrole sous le controle de cet Etat ; son capitaine ou patron est publiquement autorise, et il est investi de certains pouvoirs. " II y a done la une situation intermediare, qui, si elle n'est pas celle de batiments de guerre, n'est pas non plus celle des simples particuliers, et qui laisse une certaine part d'attributions a deux sou- veraintes differentes : d'une part, celle des eaux terri- toriales dans lesquelles se trouve le navire ; d' autre part, celle de I'Etat dont il a la nationalite. D'oii il resulte que, si le navire de commerce est soumis aux lois et aux autorites de police et de jurisdiction locales, 172 PIEST PLATFOEM Opinions of Halleok. Wheatou. The distinc- tions not generally re- cognized. ce n'est qu'avec un certain partage, selon les objets dont il s'agit, sous certaines restrictions *. "Notre legislation etablit, quant aux faits qui se passent a bord des navires de commerce, dans un port ou dans une rade en pays etranger, une distinction entre — 1° d'une part, les actes de pure discipline in- terieure du navire, ou meme les crimes ou delits com- muns commis par un homme de I'equipage centre un autre homme du meme equipage, lorsque la tranquil- lite du port n'en est pas compromise ; et 2° d'autre part, les crimes, ou delits commis, meme a bord, contre des personnes etrangeres a I'equipage, ou par tout autre que par un homme de 1' equipage ; ou meme ceux commis par les gens de I'equipage entre eux, si la tranquillite duport en est compromise" f. 182. General Halleck quotes and recognizes this doctrine of French jurists. Wheaton, in his ' Elements of the Law of Nations,' explains it, but gives his opinion that the French courts in this respect give to merchant vessels greater privileges than are required by the general principles of International Law. But Mr. Lawrence states that Mr. Wheaton subsequently, in a review of M. Ortolan's work, admitted the di- stinctions established by French jurisprudence to be sound in principle, and such as ought to be recognized by all nations J. 183. They certainly have not hitherto been generally recognized by Publicists. M. Ortolan's main reason * Ortolan, 'Diplomatie de la Mer,' liv. 2, c. 13. t P. 172. t Yol. i. p. 129. OF INTEENATIONAL LAW. 173 in support of them appears to be inconclusive. He Keasons urges tliat the mercliant ship, though not altogether distinctions. a public vessel, has received an organization and rules of conduct for her crew from the Government of her own nation, which she bears with her wherever she may be, and that she has therefore always and every- where a jural connexion with her own State. But the same might be said of the members and agents of many trading companies who visit, and are commorant in foreign countries for the purposes of the commerce or other speculation, which their own Government has sanctioned, and which they carry on to a certain extent under their own Government's control. But such per- sons are unquestionably fully subject to the laws of the foreign State while resident within its boundaries; and it is difficult to see what principle can make the men on board of a merchant ship in the harbour indepen- dent of the local laws, in any case where they would be under them if trading or residing ashore. 184. It is observable that in both the cases of the Eeai effect of 'SaUy' and the Torsaltning' the French courts decided decisions, against French jurisdiction. I am not aware that there is any case in which France has compelled, or even required, the courts of any other nation to abandon the trial of offences committed by members of the crews of French merchant ships within the territorial waters of such nation. The difference is material. A State gives others no fair ground of offence when she merely disclaims rights, the exercise of which would be in favour of her own authority. Unquestionably the reasoning of the French tribunals went much 174 FIRST PLATFOEM Clear recog- nition of rights of local tribunals when the general peace is disturbed. further ; but " alphabets wound not," and this may have passed unheeded without the silence of other States being taken to give assent to it. This is the view apparently taken by the editor of the ninth edition of Kent's ' Commentaires,' He says of the cases of the ' Sally ' and of another vessel that " these cases show a liberal relaxation of the strict rights of the local jurisdiction " *. 185. In practice it would be unwise and offen- sive for the local authorities of a seaport-town to in- terfere in etery case of petty assault or the like that occurred on board a foreign merchantman in the harbour. And, on the other hand, it is always to be remembered that the French jurists strongly uphold the right of the local tribunals to take cognizance of all crimes which disturb the general peace and good order of the port. M. Ortolan cites fully a case in which crimes of serious magnitude were committed on board an American ship in Trench waters by one of the ship's officers against two of the ship's crew, so as to cause great disturbance and excitement in the harbour ; and thereon the French local authorities took prompt action in the case, and sent the accused party for trial before the Court of Assizes of the Lower Seine. The French Court of Cassation upheld the legality of these proceedings f . blesse un autre gri^vement. La tranquillite dii port avait dte profondement troublee, et remotion populaire s'etait meme propagee dans la ville, * Vol. i. p. 164, note. t "Ils'agissaitd'unbatiment americain, k bord duquel le second avait tue de sa main un de ses matelots et en avait OP INTEENATIONAL LAW. 175 186. We have now to consider the status of Ships status oHo- of War when within foreign territorial waters ; and war^ ^ '^ this is a subject of much doubt and difficulty, which par suite de la surexcitation des Equipages des autres navires am^ricains en grand nombre dans le port." — Ortolan, vol. i. p. 275. M. Ortolan gives, in his ' Annexe J/ a full report of the decree of the Court of Cassation, some portions of which I subjoin. They cer- tainly give the impression that the learned French judges who pronounced them would have declared differently from their predecessors in cases such as those of the 'Sally' and the ' forsaltning.' " Attendu que les b&timents de commerce entrant dans le port d'une nation autre que celle h laquelle ils appartien- nent ne pourraient etre sous- traits a la juridiction territori- ale, toutes les fois que I'interet de I'Etat dont ce port fait partie se trouve engage, sans danger pour le bon ordre et la dignite du gouvernement; " Attendu que tout ifitat est interesse h, la repression des crimes et delits qui peuvent etre commis dans les ports de son territoire, non-seulement par des hommes de 1' equipage d'un batiment du commerce en vers des personnes ne faisant pas partie de cet equipage, mais meme par des hommes de I'equipage entre eux ; soit lors- que le fait est de nature h. com- promettre la tranquillite du port, soit lorsque I'intervention de I'autorite locale estreclamee, soit lorsque le fait eonstitue un crime de droit commun que sa gravite ne permet ^ aucune nation de laisser impuni, sans porter atteinte k ses droits de souverainete juridictionnelle et territoriale, parce que ce crime est par lui-meme la violation la plus manifesto comme la plus flagrante des lois que cjiaque nation est chargee de faire respecter dans toutes les parties de son territoire ; "Attendu qu'un souverain etranger n'a aucun interet h, revendiquer qu'il soit fait ex- ception k I'application de ces principes en faveur des bati- ments de commerce, h, moins de traites sp^ciaux intervenus entre Etats et dans les limites de ces traites, puisque ces bati- ments, naviguant en dehors de leur territoire pour fair le commerce, ne sont pas engages dans les affaires publiques, ne sont occupes que d'interSts prives, et que les equipages qui les composent, ne sauraient avoir droit a d'autre protection que celle que pouvait invoquer une personne privee ; 176 ITRST PLATPOEM Geneva Arbi- tration. No practical diiEeulty felt about this formerly. How tlie ques- tion arose in the "Alabama" contrOTersy. the proceedings in the recent Geneva Arbitration have served rather to exhibit than to settle. 187. Ships of War used always to be treated, in point of fact, as exempt from all foreign jurisdiction whatever, whether they were on the high seas or within the territorial waters of a foreign State. The rule was generally laid down by text-writers, without discriminating whether the right of war-ships to exterritoriality was a perfect right, or a privilege dependent on the Comity of Nations only. This important question arose (with many others) in the " Alabama " controversy, I shall have repeated occasion to refer to that memorable international litigation, on coming to the subject of the effect of a statQ of warfare on the rights of Neutrals. But it is desirable and useful to address ourselves now to those portions of it in which the general principle was dis- cussed whether the rights of a ship of war in foreign ports are perfect rights, or whether they are precarious privileges dependent upon the Comity of Nations. A further question arose, which also it will be proper not to pass unnoticed in this chapter — namely, whether, supposing them to be based on the Comity of Nations, there is or is not such & prima facie presumption of a general agreement to allow them that they cannot be " Attendu que, d^s lors, a I'exception de ce qui concerne la discipline et I'administra- tion interieure du bord, dans lesquelles Tautorite locale ne saurait s'ing&er et pour les- quelles ily a lieu de respecter les droits reciproques concedes par un usage general entre les diverses nations, les batiments de commerce restent soumis h, la juridiction territoriale." OP INTEENATIONAL LAW. 177 lawfully disregarded and refused without notice of withdrawal or of disallowance being first given. 188. On the British side it was contended that these rights are Perfect Rights. And this is the view of the subject taken in the celebrated judgment of Sir A. Cockburn, parts of which I will proceed to Sir A. Cock- T m 1 11 bum's I'lidg- quote. It Will be seen that by some of the authori- ment. ties which he cites, the right of exterritoriality is dealt with as arising out of the Comity of Nations ; but most of the authorities adopted by him treat it as a perfect right. The same judgment, however, deals with the alternative, and lays down that, even if the right to exterritoriality depended on Comity only, the right ought not to be denied and the ship interfered with, unless clear warning had been given that the Neutral refused to that ship the Comity usually allowed to foreign ships of war. Sir A. Cockburn's words are as foUows* : — " It is a familiar principle of International Law that the ships of war of a State are entitled to the privilege of exterritoriality. This is a point on which leading publicists are agreed. Wheaton, in his ' Elements de droit International,' writes, ' Une armee ou une flotte appartenant a une puissance etrangere, et traversant ou stationnant dans les limites du territoire d'un autre Etat, en amitie avec cette puissance, sont egalement exemptes de la juridiction civile et criminelle du pays. " ' II s'ensuit que les personnes et les choses qui, dans ces trois cas, se trouvent dans les limites du territoire * Blue Book, p. 149. 178 FIRST PLATFOEM Sir A. Cock- burn's judg- ment. Sir A. Cock- burn's judg- ment. d'un Btat etrafiger, restent soumises a la juridiction de I'Etat auquel elles appartiennent, comme si elles etaient encore sur son territoire. '"S'il n'ya pas de prohibition expresse, les ports d'un Etat sont regardes comme etant ouverts aux navires de guerre d'une autre nation avec laquelle cet Etat est en paix et amitie. Ces navires, entres dans les ports etrangers, soit en vertu de 1' absence d'une prohibition, soit en vertu d'une autorisation expresse, stipulee par traite, sont exempts de la juridiction des tribunaux et des autorites du lieu.' " Heffter declares ships of war to be exempt from the territorial jurisdiction of the country within whose waters they are. Sir R. Phillimore writes as fol- lows : — ' Long usage and universal custom entitle every such ship to be considered as a part of the State to which she belongs, and to be exempt from any other jurisdiction. Whether this privilege be founded upon strict international right, or upon an original concession of Comity with respect to the State in its aggregate capacity, which, by inveterate practice, has assumed the position of a right, is a consideration of not much practical importance. But it is of some importance ; for if the better opinion be, as it would seem to be, that the privilege in question was origi- nally a concession of Comity, it may, on due notice being given, be revoked by a State so ill-advised as to adopt such a course, which could not happen if it were a matter of natural right. But, unquestionably, in the case of the foreign ship of war, or of the foreign Sovereign and Ambassador, every State which has OP INTERNATIONAL LAW. 179 not formally notified its departure from this usage of sir a. Cook- the civilized world, is under a tacit convention to ment. ^" accord this privilege to the foreign ship of war lying in its harbours.' No writer has, however, discussed the subject with so much clearness and force as M. Ortolan in his ' Diplomatic de la Mer :' — " ' Les batiments de guerre armes par I'Etat lui- meme et pour sa defense, en sont les representants a I'etranger; leur commandants et leur officiers sont comme des delegues du pouvoir executif, et sur quel- ques points du pouvoir judiciaire de leur pays. Ces batiments doivent done participer pleinement a I'in- dependance et a la souverainete de la puissance qui les arme i ils ont droit aux respects et aux honneurs qui sont dus a cette souverainete ; c'est ce que recon- naissent et ce que comuiandent les lois inter- nationales. " ' Par cela seul que les batiments de guerre sont armes par le Gouvernement d'un Etat independant, auquel ils appartiennent, que leurs commandants et leurs officiers sont des fonctionnaires publics de cet Etat et en exercent la puissance executive, en certains points meme la puissance judiciaire, enfin que tout individu faisant partie de leur equipage, sans distinc- tion de grade, est un agent de la force publique, ces batiments, personnifies, sont une portion de ce Gouvernement et doivent etre independants et re- spectes a son egal. " ' Ainsi ; quel que soit le lieu ou ils se trouvent, qui que soit au monde, etranger au Gouvernement auquel ils appartiennent, n'a le droit de s'immiscer en N 2 180 riEST PLATFOEM Sir A. Cock- rien dans ce qui se passe a leur bord, et encore moins ment. d'y penetrcr par la force. " ' On exprime generalement cette regie par une metaphore passee en coutume, et tellement accreditee, tellement traditionneUe, que dans la plupart des esprits elle est devenue comme une raison justificative de la proposition dont elle n'est veritablement qu'une expression flguree. On dit que tout batiment de guerre est une partie du territoire de la nation a laquelle il appartient ; d'ou la consequence que meme lorsqu'il est dans un port etranger, les officiers, I'equi- page et toute personne quelconque qui se trouve a son bord, est censee etre, et que tout fait passe a bord est cense passe, sur ce territoire. C'est par une continua- tion, par une expression resumee de la meme figure, qu'on appeUe ce privilege la privilege ou le droit d'exterritorialite.'" Sir A. Cockburn proceeds to say: — Sir A. Cock- " The matter is so well handled by this able writer i^nfc that I am induced to cite one or two more passages : — ' Ce qui est vrai, c'est que le navire est une habi- tation flottant, avec une population soumise aux lois et au Gouvernement de I'Etat dont la navire a la nationalite, et placee sous la protection de cet Etat. Ce qui est vrai, c'est que si le navire est batiment de guerre, il est, en outre, une forteresse mobile portant en son sein une portion meme de la puissance pub- lique de cet Etat, des officiers et un equipage qui forment tous dans leur ensemble un corps organise de fonctionnaires et d' agents militaires ou administratifs de la nation. " ' S'il s'agit de navires de guerre, la continue inter- OF INTBENATIONAL LAW. 181 nationale est constante ; ces navires restent regis sir a. Coek- uniquement par la souverainete de leur pays : — Les r^u ^^ ^ lois, les autorites, et les juridictions de I'Etat dans les eaux duquel ils sont mouilles leur restent etrangeres ; ils n'ont avec cet Etat que des relations Internationales par la voie des fonctionnaires de la localite compe- tents pour pareilles relations. " ' Le navire de guerre portant en son sein uue partie de la puissance publique de I'Etat auquel il appartient, un corps organise de fonctionnaires et d'agents de cette Puissance dans I'ordre administratif et dans I'ordre militaire, soumettre ce navire et le corps organise qu'il porte aux lois et aux autorites du pays dans les eaux duquel il entre, ce serait vrai- ment soumettre I'une de ces Puissances a I'autre ; ce serait vouloir rendre impossibles ces relations mari- times d'une nation a I'autre par batiments de I'Etat. II faut ou renoncer a ces relations, ou les admettre avec les conditions indispensables pour maintenir a chaque Etat souverain son independance. " ' L'Etat proprietaire du port ou de la rade peut, sans doute, a I'egard des batiments de guerre, pour lesquels il aurait des motifs de sortir des regies ordi- naires et pacifiques du droit des gens, leur interdire I'entree de ces eaux ; les y surveiller s'il croit leur presence dangereuse, ou leur enjoindre d'en sortir, de meme qu'il est libre quand ils sont dans la mer terri- torial, d' employer a leur egard les moyens de surete que leur voisinage peut rendre necessaires ; sauf a repondre envers I'Etat auquel ces vaisseaux appartien- nent, de toutes ces raesures qui poiuront etrej.suivant 182 FIEST PLATFOEM Sir A. Cook- les evenements qui les auront motivees ou la maniere ^n^sju g- ^^^^ gjjgg auront ete executees, des actes de defense ou de precaution legitime, ou des actes de mefiance, ou des offenses graves, ou meme des causes de guerre, mais tant qu'il les reyoit, il doit respecter en eux la souverainete etrangere dont ils sont une emanation ; il ne pent avoir, par consequent, la pretension de regir les personnes qui se trouvent et les faits qui se pas- sent a leur bord, ni de faire sur ce bord acte de puis- sance et de souverainete.' Sir A. Cook- " In the case of the ' Exchange,' reported in Cranch's me^f '''^ ^ Reports (vol. vii. pp. 135-147), the principle that a vessel bearing the flag and commission of a bellige- rent Power was not within the local jurisdiction of the neutral law, though claimed by citizens of the neutral country as having been forcibly taken from them as prizes, contrary to international law, was fully upheld on appeal by the Supreme Court of the Unites States. '"By the unanimous consent of nations,' says Chief Justice Marshal], 'a foreigner is amenable to the laws of the place ; but certainly in practice nations have not yet asserted their jurisdiction over the public armed ships of a foreign Sovereign entering a port open for their reception. It seems, then, to the Court to be a principle of public law that national ships of war entering the port of a friendly Power open for their reception are to be considered as exempted by the consent of that Power from its jurisdiction.' Sir A. Cock- " It has bceu ingeniously attempted by the Counsel m"™t ^'"^^' of the United States to place the decision in this case OF INTEENATIONAL LAW. 183 and the judgment of Chief Justice Marshall on the sir a. Coct- footing that a neutral Court has no jurisdiction over i^t! ^'^^' a belligerent vessel as a matter simply of judicial authority ; but this is not so, the eminent Judge who delivered the judgment in that case places the matter not on the footing of jurisdiction in a judicial point of view, but as one of international right. In proof of which the following passages are deserving of the fullest attention : — " ' A nation would justly be considered as violating its faith, although that faith may not be expressly plighted, which should suddenly, and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. " ' If, for reasons of State, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of war of any particular nation, notice is usually given of such deter- mination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all Powers with whom it is at peace. . . . " ' But in all respects different* is the situation of a public armed ship. She constitutes a part of the military force of her nation, acts under the immediate and direct command of the Sovereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from * This refers to private ves- passage in the original judg- sels coming under local juris- ment, p. 144, 7 Craneh, ' Su- diction. See the intervening preme Court Keports,' 184 FIEST PLATPOEM Sir A. Coek- burn's judg- ment. Judgment of other Arbi- trators. Count Sclopis's statement. being defeated by tlie interference of a foreign State. Such interference cannot take place without affecting his power and his dignity. The impUed hcense, therefore, under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign within whose territory she claims the rights of hospitality.' " 189. On the other hand, the joint judgment de- livered by four of the Arbitrators declares : — that " The Privilege of Exterritoriality accorded to vessels of war has been admitted into the Law of Nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual de- ference between different nations,; " And that " The absence of a previous notice cannot be regarded as a failure in any consideration required by the Law of Nations, in those cases in which a vessel carries with it its own condemnation." 190. In the statement delivered by Count Sclopis, the President, before the tribunal, these passages occur" " If we consult the most esteemed authors on public International Law, and especially two writers of great weight, whose authority will be denied neither by America nor by England, namely. Story and PhilH- more, we find that the privilege, usually accorded to ships of war, of being considered as a portion of the * Blue Book, p. 207. I have not quoted any rea- sonings based on the language of the Three Special Kules on which the Arbitrators were required to act. OP INTEENATIONAL LAW. 185 State whose flag they carry, and being thus exempt from all other jurisdiction, was in its origin a privilege only granted by courtesy. As this privilege is only derived from the usage of nations, it can be cancelled at any moment without cause for offence being given." " The opinion of Story, delivered in the case of the count ' Exchange,' and quoted by Phillimore, appears to me stetement. decisive : — " ' It may,' he says, ' be justly laid down as a general proposition, that all persons and property within the territorial jurisdiction of a Sovereign are amenable to the jurisdiction, to himself, or his Court ; and that the exceptions to this rule are such only as by common usage and public policy have been allowed in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights. It would, indeed, be strange if a license implied by law from the general practice of nations for the purposes of peace should be construed as a license to do wrong to the nation itself, and justify the breach of all those obligations which good faith and friendship by the same implica- tion impose upon those who seek an asylum in our ports.' " 191. In the statement of Mr. Adams on the same subject, it is said : — " On behalf of Great Britain it is claimed that the Mr. Adams'a rule is perfectly established that a vessel belonging to ° ^^^ ' any Power, recognized as sovereign or as a belligerent, has, in virtue of its commission, a right to claim a 186 FIRST PLATPOEM Mr. Adams's reception and the privilege of extra-territoriality, with- out regard to its antecedents, in the ports of every neutral Power. " The authorities quoted to sustain this position sus- tain it as an established general rule. I see no reason to question it. But the question that has been raised in the present controversy is an exceptional one, which is not touched by these decisions." Mr. Adams then enters into arguments to show that the 'Alabama,' the 'Shenandoah/ and other vessels whose origin and conduct were discussed before the Geneva Tribunal, were not bond fide foreign ships of war at all, and that the Commissions held by them ought to have been regarded as nullities. But he proceeds also to consider the case on the hypothesis of their commissions having been real, but of these ships having abused the amity of England, and of their having been engaged in gross violations of the Laws of Great Britain and of International Law. He gives his opinion, that by " such fraudulent abuse of the amity of England, by thus setting at defiance England's laws within its own jurisdiction, the per- petrators of such conduct had not only forfeited all right to consideration, but had subjected themselves to the penalties of malefactors if ever they returned within the jurisdiction which they had insulted." He considers that to deny the right to exclude vessels from British ports on these grounds without regard to their commissions "would place every sovereign power at the mercy of every adventurous pirate on the ocean, who might manage to cover himself OP INTEENATIONAL LAW. 187 with the threadbare mantle of the minutest belli- Mr. Adama'a gerent. statement. " It is a perfectly well understood principle of law that no citizen of a foreign nation, excepting perhaps, in certain cases, a representative clothed with diplo- matic privileges, is free from the obligation of con- forming himself to the laws of the country in which he is residing. If he wilfully violates them, he is subject to the same penalties which are imposed upon native citizens. Even though not a citizen, he is sub- ject in Great Britain to be tried for quasi-treason. If, instead of conspiring against the Queen, he enters into combinations which involve the Kingdom in com- plications with foreign Powers with which it is at peace, he surely cannot come forward and plead the possession of a commission from the authorities of his country in his justification. Neither is the com- mander of a ship of a foreign power which comes within the harbour of another, free . from the same general obligation. If he violates any of the regu- lations prescribed for his government, he is Uable to pay the penalty by a withdrawal of his privileges, or by an immediate order of exclusion from the port. Por myself, therefore, I cannot see any reason why the existence of a commission should have stood in the way of a clear expression of Great Britain of its • sense of the indignities heaped upon Her Majesty's Government by the violation of her laws within her various dominions, continuously persisted in during the existence of this belligerent. In my opinion it would have justified the seizure and detention of the 188 FIEST PLATFOEM offending vessels wherever found within the jurisdic- tion. But if that were considered inconsistent with a clear impartiality/, it certainly demanded an entire exclusion from Her Majesty s ports"* . SomePrinei- 192. These Judgments show Considerable clashiugs From the"e^ ^ of high intellects in high places. Nevertheless there to^ehaii^^ are some propositions, material for our present pur- are agreed. pose, which they agree in establishing or confirming ; and there are other matters as to which they give us valuable lights (though they are cross lights), by which we may be aided in forming (as we are obliged to form) independent views of our own. A general 193. Whether we regard the right of a Foreign territoriality Ship of War to the privilege of exterritoriahty as essen- Eight be a ^ tially a Perfect Right, or whether we regard it as or^"Ex Comi- dependent on Comity only, and therefore as amount- admitted by ™g ^0 uo more than a Moral Right, such right ought subjectTo two *° ^^ allowed and respected, unless (1) notice has been wMoh*'aiT'°" given of its disallowance, or (2) unless the Foreign agree. Ship, after admission to the Port, grossly abuses her privilege of admission to the Port for purposes vio- lently aggressive, internationally illegal, and flagrantly injurious to the State whose hospitality she enjoys. A Third case Thus far all are agreed. But a third state of things * See " Statement of Mr. Geneva," piiTDlislied by the Adams " in the Blue Book American Government. Argu- (J^"orth America, Ko. 1, 1873), ments on the British side ■will p. 200. The arguments of be found on pages 296 and 427 counsel on the American side of the same volume. See also as to this subject wiU be found " British Counter Case," Blue in pages 152 and 451 of the Book (North America, No. 4, Keport of " The Argument at 1872), p. 18 et seq. OF IJSTTEENATIONAL LAW. 189 may arise, which (or the hypothesis of which) created of Exceptions much of the discussion in the Alabama question. It somTautho-^ may happen that the so-caUed Foreign Ship of War a^fed by is tainted by some congenital fraud as to her equip- °^^^^^- ment, and as to the mission on which she navigates, and that she has only come into existence as a war ship by means of a violation of the laws of the very Nation whose ports she enters. Some of the high authorities, who took part in the Geneva argument and decision (including a majority of the Arbitrators), maintained that under such a condition of circum- stances the offending vessel has no right to be treated as a bond fide Foreign ship of war, that she has no privilege of exterritoriality, and that no notice of refusal or withdrawal of any privilege is in her case necessary. The judgment of Sir Alexander Cockburn (as already quoted in these pages) contains the fullest exposition of the contrary opinion ; and it will be seen that the American Arbitrator, Mr. Adams, though he does not withdraw from the position taken by the majority of his colleagues, namely that such a vessel has no right to any privilege of exterritoriality, and that no notice of denial or withdrawal of it is neces- sary, yet evidently considers that the best course in such a case would be to give such notice, a warning not to enter the Port being sufficient notice. 194. The question of notice being or not being Question of necessary forms the main practical question. But no Notice the one asserts that the Privilege of Exterritoriality is uni- ^Ttion?''' '"" versal or perpetual : all agree that this Privilege may 190 FIRST PLATFOEM be denied or withdrawn upon due notice *. By " due " notice I mean a notice sufficient as to time and circumstance, so that it shall be impossible for those in command of the ship in question reasonably to allege that they were entrapped into entering or remaining in the port by a belief that the customary privileges would be extended to their vessel. The real motive, the causa suasoria, of such a denial or with- drawal of exterritoriality might be frivolous, or it might be even vexatious ; but if due notice were given, it would only amount to cause for moral com- plaint of want of the Comitas Gentium. It would be like the withdrawal and refusal of rights usually allowed to foreigners to travel, or reside, or carry on commerce — a species of that Xenelasia, which we shall speedily have occasion to speak of as being within the strict right of a State to enforce, however alien it may be from that spirit of Comity by which, as a matter of moral right, the conduct of nations towards each other ought to be regulated. 195. The copious extracts which I have made from the ' Alabama ' judgments, and the arguments of counsel which I have referred to, give the reader full Means for materials for coming to an opinion of his own whether opinion, ™ the Right of Exterritoriality is a mere privilege granted ex comitate, in which case it may be refused without notice, provided that under the circumstances those commanding the ship in question have not been * This is not to be misunder- of one Belligerent less favour- stood as meaning that a neutral ably than the war ships of the State may treat the war ships other Belligerent. OF INTEENATIONAL LAW. 191 unfairly deluded into the belief that th^ would be allowed the privilege — or whether the Right of Ex- territoriality is a Perfect Eight, in which case it cer- tainly cannot be legally withdrawn without notice, save and except in the possible case that the Foreign War ship, after her admission to the port, is guilty of such outrageous violations of the local law and Inter- national Law that prompt action against her, without any formality of notice, is absolutely necessary. I do not purpose to enter on the arduous and presumptuous function of balancing and criticising the arguments used by or before those high authorities who gave judgment at Geneva. But to give no opinion at all might be taken to imply that I think the reasoning on the two sides to be of equal weight, whereas I believe the arguments on this subject brought forward by Sir Alexander Cockbum to preponderate greatly over what has been said by the eminent Jurists who differed from him. At the same time I may state that, according to the principles of Utilitarianism (to As a matter which the greatest heed should be paid in all cases of utility such real difficulty and doubt in International Law *), it be given and will be practically best to follow the course evidently Mr. Ad^ams preferred by Mr. Adams, and to give notice of denial ^°" of the privileges of Exterritoriality to aU war ships of the character which the opinion of the great majority of the members of the Geneva Tribunals (if not all of them) ascribed to the ' Alabama.' This would be just and desirable, whether Perfect Right or the Comitas Gentium is regarded ; and by following such * See supra, chapter 3. 192 PIEST PLATFOEM a course no foundation would be given for any reason- able complaint of disregard of Positive International Law, or neglect of International courtesy and fairness. Bight of ex- 196. Whatever maybe the extent of the immu- emption from ■ p i i i i ■ t i lioeaiLaws nity from local law to which the crew and others tend to mis- officially employed on board of a war ship are entitled crews on shore. wHlc shc is in foreign territorial waters, such privi- lege does not extend to misconduct commited on shore. Calvo quotes an award of the King of the Belgians, upholding the jurisdiction of the authorities of Rio Janeiro over certain officers of the English ship ' La Forte ' in respect of matters which had occurred on land*. Bluntschli (p. 194) states that when any of the officers or crew of a foreign ship of war go ashore, and commit offences there, they are subject to the ordinary tribunals of the place; but the matter ought to be brought to the notice of the commanding officer of the offenders, and measures should be taken in concert with him for the punish- ment of the offenders, either by the local tribunals or by the military authorities of the ship. " According to strict reasoning, the exclusive jurisdiction of the local tribunals ought to be maintained; but the desire of keeping on friendly terms with other nations has caused in such a case an extension of the maritime jurisdiction of the foreign state to which the ship of war belongs." Ortolan's words are : — " Mais si c'est a terre en pays etranger que des individus, quels qu'Us soient, apparte- nant aux etats-majors ou aux equipages des batiments * Calvo, i. p. 794. OF INTERNATIONAL LAW. 193 de guerre, se rendent coupables d'infractions aux lois de ce pays, nul doute que les autorites locales n'aient le droit de s'en emparer, tant qu'ils sent a terre, et de les livrer aux tribunaux de leur nation pour etre juges et punis suivant ces lois "*. 197. On board of the foreign war-ship, the local Extent of a tribunals have no jurisdiction whatever. The privi- shiys^rivT" lege of exterritoriality not only operates to the ritorfaUty. exemption of those on board of her from the action of the local criminal tribunals as to charges of crime committed by members of her crew or other regular officials on board of her, but it forbids the local tribunals from serving any judicial process or exercising any act of jurisdiction on board of her. Locally she may be within the limits over which such The loeai Courts have power ; but juraUy she is to them foreign in°So way^to territory into which they have no right to intrude bos^lofTc™ their writs, their officers, or any badge of their autho- rity. This is laid down very explicitly by Ortolan ; his words are as follows : — " Les commandants des ortolan's batiments de guerre doivent reserver aux tribunaux ^_ ^ "^ *° de leur pays la connaissance des crimes ou delits commis a leur bord, meme dans des eaux etran- geres, non-seulement lorsque la repression de ces crimes ou delits touche au commandement mihtaire, mais aussi dans tout autre cas." He proceeds to state that " Les autorites etrangeres du port ou de lia rade ou est mouille le navire de guerre n'ont aucun droit de venir a bord faire aucun acte de police, d'ai Testa- tion ou de juridiction quelconque, soit pDiu* les faits * Ortolan, 'DiplomatiedelaMtr,' p. 208. O 194 FIEST PLATPOEM passes a bord de ce navire, soit pour tous autres ; les navires de guerre etant totalement exempts de la jviridiction etrangere." Caivo's state- 198. Calvo is equally explicit as to "the Principle ment of same , . ■, in- , j. i • e doctrine. wmch Under all circumstances exempts snips or war from the jurisdiction, civU as well as criminal, of the tribunals of the foreign State where they are anchored/' He says that " penetrer a leur bord par force est une violation de pavilion, qui pent entrainer les plus graves consequences, et justifierait pleinement une rupture de relations entre deux Etats "*. 199. This caution as to the Local Tribunals abstain- ing from all attempts, even from attempts to effect ser- vice of their processes, on board of foreign ships of war. Practical im- is a matter of practical importance. Not very many portance of • i i» t i i • p i • caution in this years ago a judge ot a local court m one ot our colonies ™* ^' ordered a writ of summons in a suit brought in his court to be served on the defendant and alleged debtor, who was at the time on board of a foreign war-ship in the harbour, the harbour being locally included within the District-Court's jurisdiction. The commander of the man of war refused to allow the process-server to come on board. That official endeavoured to force his way in ; and when he was repelled, the local judge sent him back with a threat that the military force of the port (a garrison town) should be called in to aid and assist the civil authorities. The captain of the foreign man of war replied by ordering his guns to be loaded, and his decks to be cleared for action. On the commandant of the port hearing of the * Vol. i. p. 676. OE INTERNATIONAL LAW. 195 apprehended disturbance? he prudently and properly counselled the angry local judicial dignitary to give up his attempt to serve the process, and the matter passed off quietly. 200. Perhaps an attempt might he made to distin- Possible di- .,, , . „ . T • 1 n stinotion be- guisn between the services oi various kinds or process, tweenthe In most cases the process is only effective, if served various kinds within the actual territory over which the local court " ™'^^^' has jurisdiction. Under such circumstances the at- tempt to serve such process on board of the foreign man of war is a clear denial of the ship's extra-exterri- toriality, and might be properly resented as a national insult. But there are also cases, where a Court directs summonses to appear, or notices to return to be served avowedly in foreign territory on subjects who belong to the nation to which the Court itself belongs. In such cases, if an attempt were made to serve process on board of a foreign war-ship, it might be said that there was no denial of the war-ship's extra-territoriality, and that consequently no offence ought to be taken. But it is apprehended that even in such cases the Sovereign of the foreign territory, or his representative in de- tached parts of it, must be held to give, by the Comity of Nations, an implied assent to the action of the Court whence the summons or other analogous pro- cess emanates. Such sanction might be refused or withdrawn. At any rate, to avoid the risk of armed Best to avoid collision, and possible warfare, it is clearly best on all to ^erSFe principles of general expediency for local tribunals tion. """^ '" not to attempt the exercise of any jurisdiction on board of foreign ships of war. o2 196 ^ PIEST PLATPOEM Nations have 301. The perfect Right o? a State to Independence a Perfect right . . ^ ° . . t- . , to impcBe gives it the power, according to Positive International restrictions on _ t ■ ■ i foreign com- Law, to make what regulations it pleases as to its the aciess of trade and its commerce with other nations. It may their teTri-" placc what restrictions it thinks fit on the access of foreigners to its coasts or to its interior territories for mercantile or for any other purposes. It may do this without being considered to inflict by those restric- tions such an injury as amounts to a Casus Belli; The with- thouffh Undoubtedly the withdrawal of ancient cour- clrawal of cus- . _ "^ tomary indui- tcsics and of indulgences which had become matters gences on such subjects may of loug custom, would be a breach of the Comity of he a breach of t-t . .■,,.„.., the Comity of Natious, cspeciaUy if similar indulgences were still Nations, but does not allowcd to the members of other Foreign States. Casus Belli. But no Casus Belli would arise. The State or States towards which such exclusion was practised, must retaliate only by refusing in turn to the denying Nation all courtesies and beneficial intercourse under the Comity of Nations *. A stale has an 202. A State's perfect right to regulate and restrict entirely to the commcrce of foreigners with it, and their access acrasa of " to its territories, extends also to an absolute Right to lOrfi^ PTl ftrs Q.iicl foreign com- * " The Violation of Eights has failed, must be a corre- merce. stricti juris may be redressed spending reciprocity of practice by forcible means, by the opera- on the part of the nations tion of war, which in the com- whose subjects are so- treated, munity of nations answers to " Illud quoque sciendum est," the act of the Judicial and observes Grotius, " si quis quid Executive Power in the com- debet, non ex justitia propria, munity of individuals. But the sed ex virtute alia, puta libe- departure from the usage of ralitate, gratis, misericordia, Comity cannot bo legally re- dilectione, id sicut in foro exigi dressed by such means. The non potest, ita nee armis de- remedy, where expostulation posci." — 1 PhiUimore, p. 161. OP INTEENATIONAL LAW. 197 forbid foreign commerce, and the access of foreigners altogether. Attempts have been sometimes made to call in question the right of any one nation thus to isolate itself from the rest of mankind, and to renew the churlish spirit of the Xenelasia, by which ancient Sparta strove to keep its peculiar institutions intact and uncorrupted. But the balance of authority is Authority and clearly in favour of the existence of such a strict fn faTouTof"™ right ; and the balance of convenience is in its favour *'^ doctrine. also. The annoyance and disappointment, which the speculative and inquisitive members of other States may suffer by such exclusions (exclusions which from the nature of things, and from human nature, have always been and always must be of very rare occurrence), are trifling in comparison with the mischief, with the amount of quarrelling and hostility, which would be caused, if a strong adventurous State had a right under pretext of general good, of the advancement of civiliza- tion or the like, to send its ships or its subjects into another State against that other's will. For authorities on the subject I will cite Sir George Bowyer and Vattel. The first says : — " A State may, without violation of Bowyer's international law, exclude all foreigners from its terri- tie subject. tories ; though there may be particular cases in which to exclude them would be cruel, and contrary to the common duties of humanity " *. Vattel's words are as foUows f : — " Le Souverain Vattei. pent defendre I'entree de son territoire, soit en general * Bowyer, • Public Law,' Puffendorf, ' Droit des Gens,' p. 173. He refers to Vattel, 1. 3, ch. 3, § 8. as cited in the text, and to t Liv. 11. c. vii. § 94. 198 ITRST PLATPOEM a tout etranger, soit en certains cas, ou a certaines personnes, ou pour quelques affaires en particulier, selon qu'il le trouve convenable au bien de I'Etat. II n'y a rien la qui ne decoule des droits de domaine et d' empire ; tout le monde est oblige de respecter la defense ; et celui qui ose la violer, encourt la peine decernee pour la rendre efScace. Mais la defense doit etre connue, de meme que la peine attachee a, la deso- beissance ; ceux qui I'ignorent doivent etre avertis, lorsqu'ils se presentent pour entrer dans le pays. Autrefois les Chinois, craignant que le commerce des etrangers ne corrompit les moeurs de la nation, et n'alterat les maximes d'un gouvernement sage, mais singulier, interdisaient a tous les peuples I'entree de I'empire. Et cette defense n'avait rien que le juste, pourvu que I'on ne refusat point les secours de I'hu- manite a ceux que la tempete, ou quelque necessite contraignait de se presenter k la frontiere. Elle etait salutaire a la nation, sans blesser les droits depersonne ni meme les devoirs de I'liumanite, qui permettent en cas de collision de se preferer soi-meme aux autres." Contory 203. Vattel's clear doctrine on this subject ought found in to be taken as overruling the inferences v^hich might be drawn from some of the expressions in the second book of Grotius, chapter 2, sections from xiii. to xxiv. inclusive. Great part of the observations of Grotius apply to claims of transit for persons and for goods through a State's territory. He makes also distinctions as to various incidents in traffic and in commorancy in a foreign territory, which distinctions it would be very difficult to maintain in practice, and which, Grotius. OP INTEENATIONAL LAW. 199 therefore, it would be inexpedient to recognize in theory. Thus he would give the foreigner a right to purchase necessaries, but not superfluities ; and, even as to necessaries, it would be open for the native rulers to stop the traffic if the natives had special need of such articles. Grotius would not give the foreigner any absolute right at all to sell his (the foreigner's) goods, as it always ought to be in the choice of every party to decide what he wiU acquire and what not. 204. HefFter, in his essay, 'Le Droit Interna- Heffter'sEuies tional,' has denied the right of a State to isolate itself completely as to commercial transactions*. Hefi'ter's proposed rules on the subject are very correctly stated by Principal Woolsey, who accompanies his state- ment of them with comments and limitations so very sensible and just that I will cite them collectively. Principal Woolsey has inserted a passage in the com- as modified by mencement of his own work in which he draws the °°^^^' conclusion that "Sovereignty, in the strictest sense, authorizes a nation to decide upon what terms it will have intercourse with foreigners, and even to shut out all mankind from its borders." In his third chapter he reverts to this topic and observes as follows : — " And yet some kind of intercourse of neighbour- ing States is so natural, that it must have been coeval with their foundation, and with the origin of law ; it is so necessary, that to decline it involves often ex- treme inhumanity ; it is so essential to the progress of mankind, that unjust wars have been blessings when they opened nations to one another. There * P. 67. 200 FIE8T PLATrOEM could, of course, be no international law without it. The following maxims relating to the so-called right, are, in substance, laid down by Heffter. '"I. Entire non-intercourse shuts a nation out from being a partner in International Law. [This, however, is not true, if International Law is taken in its broad- est sense ; for to treat a nation or its subjects, when these latter are fallen in with, as having no rights, because they have no intercourse with us, is not only inhuman but unjust.] " '3. Nonation can, without hostility, cut off another from the use of necessaries not to be obtained else- where. [But necessaries must not be confounded with articles highly desirable.] " ' 3. No State has a right to cut another off from the innocent use of its usual ways of communication with a third State.' The older writers called this the jus transitus oy jus passac/ii innoocii; but they disputed whether it is a perfect or imperfect right. Only neces- sary wants create a definite right. The refusal of something merely useful to one party, to grant which does the other no harm, is at most an unfriendly pro- cedure. Many, as Grotius (II. 2, sect. 13) and Vattel (II. sects. 123, 132-134), decide that there is a right in this case, but naturally have to reserve for the owner the decision whether he will be harmed or not by parting with his commodities. " ' 4. No State can, without violation of right, ex- clude another from intercourse with a third State against the will of the latter. " ' 6. No State can exclude the properly documented OF INTEENATIONAL LAW. 201 subjects of anotlier friendly State, or send them away after they have been once admitted, without definite reasons, which must be submitted to the foreign go- vernment concerned.' " 205. This last rule, which Principal Woolsey takes from Heffter without qualification, seems in part at least to be an attempt to transmute a claim of Comity into a Perfect Right. In most of the other cases it will be seen that Principal Woosley limits Heffter's Wooisey narrows down rules, till they become claims based on the right of Heifter-s rules AT • i-i- T«. f !•/• to claims based JN ecessity ; which is a very dinerent foundation from that on the right of H^ GCSBSltv which Heffter assigns to them. Rights of Necessity ' • will be separately considered in another chapter. 206. Without agreeing with all Heffter's rules Consequences . . /. • 111°^*^^ breach about giving reasons to foreign governments, we shall without due be safe in holding that it is a heinous wrong to withdraw promise, ex- suddenly privileges, such as we have been describing, pifed, to allow d, ,- T J.- • • J. ■ the continu- to practice spoliation, imprisonment, or ruinous anceofsuct expulsion upon those foreigners who have been exer- ^"^' ^^^^' cising them, in all cases where long usage has nurtured a well-founded expectation on the part of the foreign- ers that such privileges would continue to be respected. In such cases there is an implied promise on the part of the recipient nation to continue to respect those privileges. And the breach of that promise would justify the State, whose subjects were thereby injured, in exacting reparation for such wrong by measures of retaliation such as have been described*. This ob- * Seesitpra,p.l96,andn.ote. be so gross as to amount to a It is quite possible for the out- casws helli. rages to person and property to 202 HEST PLATPOEM servation does not apply to cases where the com- morant foreigners are guilty of misconduct which requires instant repression. 207. It is to be remembered also that there is a judicial presumption in favour of the Comity of Na- tions being always observed*. Diplomatic 208. Claims also which are connected with diplo- matic usages and courtesies, are matters of the Comity Extradition of of Natious and not of Perfect Right. The same is Criminals. . {• • ■ ^ rm ■ ^ the case as to the extradition oi crimmals. This last- mentioned matter (namely the right, real or alleged, of injured States to have criminals given up to them, who have sought asylum abroad) has sometimes been treated as a Perfect Right ; but the better and the now prevalent opinion is, that it is a matter of Comity only. This, of course, means that it is matter of mere Comity where there is no express treaty between the State which reclaims and the State which has received the criminal. If there be such a Treaty, its provisions will give the rule and practicef. * See Greenleaf on Evi- treaty-engagement, or by some dence, § 43. special circumstance, to sur- t Sir William Molesvorth, render a fugitive criminal. The in his essay on Foreign Juris- majority of modern writers diction and the Extradition of adopt a similar view, and make Criminals, after citing the extradition a question of na- opinions of some jurists that tional comity, in the absence of it is a positive duty to deliver express stipulation. Accord- up fugitives, who are charged ing to the generally received on reasonable grounds with doctrine, if a person commits atrocious crimes, proceeds to a crime, of whatever character remark (p. 37) that " On the or magnitude it may be, in one other hand, Puffendorf holds State, and escapes into another that a State is only bound by State, the former State cannot OE INTBENATIONAL LAW. 203 209. We now come to a State's Right of Owner- Eights of ship (that is, of "Dominium"), and to its Right of SZinionf Empire over Territory — things which are not always """^ "^"^"^' coextensive. 210. When a State, by means of its citizens, occu- Property. pies a country, all things, says Vattel, " susceptible of "^a***! '^*^^- being property are considered as belonging to the nation which occupies the country, and they constitute the total or mass of its possessions there. But the nation does not possess all in the same manner. Those things which are not divided among communities or municipal bodies politic, or individuals of the nation, are called puUic property . Some of these are reserved for the use of the State, and are the property of the Crown, or of the Commonwealth, while others remain common to all the citizens, who use them, each ac- cording to his wants, or according to the laws which regulate their use ; and these things are called com- mon things. There are others which belong to some body or community ; they are called property of a community, res univerdtatis, and they are for the particular body what public property is for the whole nation. As the nation may be looked upon as a great community, the property belonging to it so that all the citizens may use it, and that possessed by bodies or com- munities, maybe called common property; the same rules demand his extradition as a which would be held to justify matter of right from the latter menace, or reprisals, or war, in State. The refusal of such a the case of powers of equal demand might he an unreason- magnitude, or to justify coer- able or an unfriendly act ; but cion by a stronger over a weaker it could scarcely be an act Power." 204 PIEST PLATPOEM How I may acquire property. apply to both. And the things belonging to indivi- duals are called private property, res singulorum"*. 211. It is to be remembered that the State has over all private property, and over all property of every kind within its boundaries, a Paramount Rightf of Property, sometimes called Dominium eminens, some- times called Jus preeeminens." 212. The modes in which a State can acquire Pro- perty according to International Law closely resem- ble those by which Individuals can acquire Property * Vattel, Ub. 1. c. 20. § 235. Cited in Bowyer, 'Public Law,' p. 371. ■f" Dominium eminens is de- fined by Grotius in his ' De Jure Belli et Pacis,' lib. 1. cap. vi. sec. 2, thus: — '^Dominium eminens, quod civitas habet in cives et res civium ad itsum publicum." Questions as to when and how the State may justly exercise this right over its own citizens within its territory, belong to the Consti- tutional Jurisprudence of the particular State, and not to International Law. Sir E. PhiUimore, vol. i. p. 166, makes these observations on Dominium eminens " : — " A State in the lawful pos- session of a territory has exclu- sive right of property therein ; and no stranger can be entitled, without her permission, to enter within her boundaries, much less to interfere with her full exercise of all rights incident to that supreme dominion which has obtained from jurists the appellation of Dominium eminens. > " No individual proprietor can alienate his possessions from the State to which they belong, and confer the property of, or the sovereignty over them to another country. " This general principle of Dominium eminens is applicable to all possessions, whether ac- quired (1) by recent acqui- sition through the medium of discovery and lawful occupa'- tion, (2) by lawful cession or alienation, (3) by conquest in time of war, duly ratified by treaty, or (4) by prescription." The State right of Dominium eminens extends also to the property of strangers within the State. See Field, ' Inter- national Code,' p. 21. OP INTERNATIONAL LAW. 205 according to the Roman Law, Title by Descent being, of course, excepted as inapplicable to the case of a State. Indeed, as Sir Henry Maine has remarked in a passage already quoted, Grotius and the Jurists of his school almost copied their rules as to a State's Rights of Property out of the ' Institutes' and the ' Digest.' But it is to be observed that there is in International Law a mode of acquiring territory, to which there is nothing precisely* analogous in Municipal Law — that is, " Acquisition by Conquest," which will be alluded state's Eight to in the present chapter, but more fully discussed co^ue'st! ^ when we come to consider the subject of Rights con- sequent upon a condition of warfare. 213. On the other hand, it is at least very ques- tionable whether States can acquire territories by Testamentary disposition, or by Succession ab intestato. sembie. a In former ages, when Kingdoms were regarded by a^S™ by°' many as the patrimonial properties of their princes, it fuecession ^^ was not uncommon for Kings and other sovereign personages to assume the right of bequeathing their * " Conquest " (Jus vie- sition by ConqTiest as peculiar torioe) is mentioned by the to States. I have said that old writers as one of the modes there is nothing in Municipal by which territory may be Law precisely analogous to it. acquired or lost. Grotius I qualify the phrase thus, be- discusses the subject fully in cause it seems to me that the the sixth chapter of his third effect of a judgment and exe- book. It is unnecessary to cution in invitum in Municipal refer here to more authorities. Law, by which a piece of land as the nature and amount is taken from one litigant and of this right must be care- given to the other, is in many fully examined in another respects analogous to the con- place. M. Calvo (vol. i. p. quest of territory by one Bel- 289) treats the right of acqui- ligerent State from another. 206 I'IBST PLATFOEM dominions to whom they pleased ; and such bequests often took effect with Httle or no gainsaying, especi- ally in cases where there were no direct descendants of the bequeathing Prince or of his near ancestors*. But the decided tendency of modern International Juris- prudence is to hold that no country, at least no Euro- pean country, is the patrimonial property of its Prince, so as to pass by the exercise of any bequeathing power in himf. * Instances are cited by Halleck, p. 129. Many more might be added. t Mr. Dudley Field, in his ' Draft Outlines of an Inter- national Code' (p. 17, para- graph 37), classifies the inter- national modes of acquiring and losiQg territory as follows : — "A nation may lose terri- tory— 1. By abandonment ; 2. By destruction ; 3. By transfer ; or 4. By conquest. " A nation may acquire ter^ ritory — 1. By occupation; 2. By accession ; 3. By transfer ; or 4. By conquest. " No provision is made for devise or succession after death, inasmuch as the Devise of a Cro-wn cannot be deemed to destroy the identity of the State; and the power of the monarch to alienate any part of the national territory by will should not be admitted." See also PhiUimore (vol. i. p. 284), commenting upon Grotius (lib. 2. c. vi.), and Yattel (Kb. 1. c. xxi. and Pre- face). Much of what will be found in PhiUimore and Vattel appears to deny that any Prince can in any way alienate, even by transfer, inter vivos, any part of the national territory. The sanction of the nation to the transfer is said (and in one sense is correctly said) to be necessary. But where a nation lives regularly under the rule of a single absolute ruler, that single absolute ruler is, to all intents and purposes, the na- tion's executive organ, and its representative in all dealings with foreign powers. The sanction of the nation must be taken to have been given before- hand to its absolute ruler's ac- tions. It is, however, a widely different matter to hold that the absolute Prince has a right to make testamentary disposi- tions of the nation's territory or other property, which disposi- OP INTBENATIONAL LAW. 207 214. When it is said that a State cannot acquire a Prince may, property by Descent, it is, of course, not meant to ignore rapaciFy.To""' the numerous cases where the Prince of one country DesMnf. has claimed the crown of another country as his in- heritance. But in such cases it is the individual Prince, and not the State that claims the new crown ; and his acquisition of it (if obtained) does not blend one country with the other. The case becomes one of personal union, in which (as was explained in a previous chapter*) the two States are under the same person as their Political chief, yet each of them con- tinues to be a distinct Political Society or State. 215. The generally recognized modes by which a The generally . . recognized State may acquire domain are : — modes of ac- 1st. Occupation, which may involve title by Acces- sion, or by Prescription ; 2ndly. By Treaty and Convention ; 3rdly. By Conquest. 216. The acquisition of title to lands by Occupancy Acquisition by applies in strictness to the taking possession of unin- '"'"i'''''''y- habited or deserted places only. In such cases Occu- pancy gives the best of titles. Grotius says of this, " Occupancy, or the taking possession of that which previously belonged to no one, is the only natural and original mode of acquisition ; that is to say, it is the only mode of acquiring by the natural law without tions would come be operative of the State. "When the time after his death. Such a testa- comes for its taking effect the mentary disposition could not Prince who made it is dead and possibly take effect as an act of gone. In leaving life he has the Jrinoe in his capacity of exe- abdicated Eoyalty. cutive organ andEepresentative * See p. 136, su;pra. 208 FIRST PLATPOEM European Oc- cupants and Native Pre- occupants. Territorial Rights of Heathens ignored by Europeans in the 15th and 16th centuries. deriving a title from any other person." Yet neither England nor any other European State could make out a good title by " occupancy " to much transmarine dominion, if this definition were to be rigidly applied. The cases in which the territories beyond Europe, now held by Europeans, were quite " desert and un- inhabited " when first visited by Europeans, are rare and exceptional. In the vast majority of instances the European "occupants" found native tribes already existing in the countries which were new to Europeans, but not new to human beings. It might have been, and may be fairly thought, that in cases where large territories were merely roved over by a few sparse savages, such countries ought not to be considered as already "occupied," and that the European new- comers gained a new title by occupancy. But in many cases the natives were in considerable numbers : they were often more or less agricultural ; in some cases they had attained a high degree of peculiar civilization. But the interpretation of the Law of Nations, as between European new-comers and old natives, was always pronoimced by the European — that is, by the stronger party ; and the stronger party natu- rally interpreted according to its own interest. In the fifteenth and sixteenth centuries statesmen and churchmen in European Christendom held doctrines which got rid of all difficulties in such matters. Heathens were considered to be beyond the pale of the Law of Nations. The Pope, according to some mysterious but certainly widely prevalent mediaeval theory, claimed paramount dominion over all islands, OP INTEENATIONAL LAW. 209 and over all territories discovered beyond remote seas. The well-known Bull of Pope Alexander VI., in 1493, granted to the united monarchy of Castille and Arragon dominion over all lands discovered, or thence- forth to be discovered, westward of an ideal line, traced from pole to pole, so as to pass a hundred leagues westward of the Azores Islands. The rulers of other States did not altogether acquiesce in the titles thus given to the favoured nations of Castille and Arragon ; and after the Reformation the English and the Dutch mariners scoffed, and did more than scoff, at the Pope's pretensions and at the rights of his grantees. Even at an earlier time our Henry VII. authorized Cabot to sail under the banner of England towards the east, north, or west, and to take possession, in the name of King Henry, of all countries discovered by him, which were not occupied by the subjects of any Christian Sove- reign. Cabot had express power given him to trade with the inhabitants ; which shows that much more than the occupation of desert countries was designed. 217. The charter granted in 1579 by Queen QueenEiiza- Elizabeth to Sir Humphrey Gilbert (the founder of toSrHum-'' our North- American Empire) authorized him to occupy p"^™^ Gilbert. and to colonize any parts of the North- American con- tinent that were not already in the possession of any of the Queen's allies. The Queen of England granted to her subject to take as his own " all such heathen and barbarous countries as he might discover ;" but he and his successors were to do homage to the Queen and her successors, and the " rights of Eng- lishmen" were promised to settlers in the new colonies. p 210 FIEST PLATFOEM Not to accumulate instances, the vast expanse of terri- tory known in modern times as Prince Rupert's Land, or the Hudson's-Bay Company's Territory, extending from Labrador to the Pacific, and from the frozen regions of the Arctic circle to the French and Spanish settlements then existing in Canada, Louisiana, and Mexico, was granted in 1670 by King Charles II. to the Hudson's-Bay Company, with Prince Rupert at their head. An exception was made as to lands already possessed by other British subjects, or the sub- jects of any other Christian Prince or State ; but the native tribes and nations were no more regarded as to proprietary rights than were the herds of elks and the families of black beavers. In some in- 218, In some instances (notably in New England) stances terri- .i i-ji ii i t p j_i i*pr torypiirchased the colomsts honourabJy purchased irom the cmeis or natives.^ the native tribes the strips of territory on which they first settled. Thefoundation of Pennsylvania has always been justly considered memorable by reason of the equity with which Penn bargained with the natives for the domains of his colony, and also by reason of the good faith with which his treaties with them were observed*, But frequently the system of purchase was grossly fraudulent on the part of the civilized new comers, who knowingly bought large regions from chiefs or others who had no right to alienate them, and who interpreted the boundaries of their acqui- sitions according to their own convenience and rapa- city. Sometimes there was not even any pretence to the formality of acquisition by purchase or voluntary * Vattel, lib. 1. c. xviii. sect. 210. OF INTEEISTATIONAL LAW. 211 grant. The new comer took by the strong hand, and disdained the hypocrisy of setting up any other title. 219. Altogether the processes, by which civihzed Mode by Christians have supplanted heathen savages in many territories of the fairest parts of the globe, reflect little credit tlkm°i8^gene-^ 1 1, T -1 i i> rally indefeu- on our creed or our culture. In a judgment oi sibie. the Supreme Court of the United States will be American ju- found an able apology, not for the mode in which Sonofretain- the Indians lost their property, but for the policy, territories. which the modern Anglo-Americans now pursue toward^ them as to retaining that property*. Chief Justice Marshall says, "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 hmits. Humanity, however, acting on pubHc opinion, has estaWished 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 incorporated with the victorious nation, and become subjects and citizens , of the government with which they are connected. The new and the 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, * Johnson v. Mackintosh, 8 Wheaton, 589, citedbyTwiss, p. 186. P 2 212 PIEST PLATFORM humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired, that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexioiis, and united by force to strangers. "When the conquest is complete, and the con- quered inhabitants can be blended with the conquerors, 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 fame and hazard to his power. " 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 ? The Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of prin- ciples adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distiilct Society ; or of remaining in their neighbourhood, and exposing themselves and OF INTEENATIONAL LAW. 213 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 skill prevailed. As the white population advanced that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists 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 occupied by its ancient inhabitants, was parcelled out according to the will of the Sovereign Power, and taken posses- sion of by persons who claimed immediately from the Crown, or mediately, through its grantees or deputies. " That law, which regulates and ought to regulate in general the relations between the conqueror and conqueredj 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 sug- gested will be found to be attended with great difficulty. " However extravagant the pretension of converting the discovery of an inhabited country into conquest 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 originates in it, it becomes the X^aw of the Land, and cannot be ques- tioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be coo- 314 MiRST PLATFORM sidered merely as dccupaiits, to be protected indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to Natural Right and to the usages of Civilized Na- tions, 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 peoples, it may perhaps be supported by Reason^ and certainly cannot be rejected by Courts of Justice." 220. It does not become any European Power, it does not lie in the mouth of a frenchman, or a Spaniard, or a Portuguese, a Hollander, or a Dane, arid certainly tiot of a Briton, to be censorious towards Conduct of the United States in this matter. In the first place, the Europeans . . . ■ n- i generally to- primary wrougs agftinst the Red Indians were mnicted wards Natives. , , i i • p -n • i bymen who were then subjects ot our own Empire ; and there is much in the history of our settlements at the Cape, in Australia, in New Zealand, and elsewhere, which it is impossible to read without disapproval and Better spirit shame. A better spirit is now shown (so far at least as now shown by * ^ the British regards the Imperial Government and the Colonial Gorernment. u i. Governments) in our treatment of the natives in our colonies. This is especially the case in New Zealand ; and we may hope (though with but faint expectations) for success to the efforts which for the last few years have been so honestly and wisely made by Governor Bowen and othei?s to conciliate, to preserve, and to amalgamate with the English race the yet surviving remnant of the brave, the inteUigent, and the once numerous Maori nation. OP INTEENATIONAL LAW. 215 221. International Law has busied itself far less with the rights of the Barhari, of the natives of lands discovered from time to time by Em-opeans, than with the disputes among European States themselves, as to Disputes ,..,,-. , 1 1 • among i^al their titles by discovery and occupancy, and their European titles by occupancy of lands left derelict by their first occupancy. civihzed discoverers. Many questions have also arisen as to the extent of the title acquired by settlers on the coasts, or along the lower courses of great rivers. 222. "Discovery, according to the acknowledged Effect of mere practice of nations, furnishes an inchoate title to ^^°^^- possession in the discoverer. But for this to inure inchoate Title, „,,„„_, IT 1 • ^ ■ • Servitudes, express compact, or they may be based on Prescription, how created. International Servitudes have the effect of restrain- ing a State from the full and entire exercise of rights of dominion in one of two ways : — 1 . The Servitude Two kinds of may prevent the Servient State (i. e. the State which is subject to it) from free action in some particular matter. This is called a Negative Servitude — a Ser- vitude by which the party, on whom the onus of it lies, is under an obligation non facere. 2. A Servitude may be a Servitude Pdti, that is, may impose on the party subject to its onus the duty of suffering that the party, who possesses the rigbt to put the Servitude in force, who has the beneficial Jus ServUutis, shall be at liberty to do something on the territory of the servient party, which would not be lawful without express permission if no such Servitude existed. 258. Bluntschli gives as instances of the first kind of International Servitudes, of Servitudes non facere, the following cases : — a. A State's being under an obligation not to keep instances of ,, , . , /. . PI- International up more than a certain number oi troops or oi ships servitudes of War, or not to fortify certain places within its own territory. b. The obligation of a State to abstain from exer- cising any or full jurisdiction over the subjects of some other State within its territories. c. The obUgation to levy no duties, or only duties according to a specified limited scale, on things im- ported by specified foreigners, or on specified foreign articles. 258 PIEST PLATFOEM InstanoeB of International Servitudes How Inter- national Serritudes may be terminated. Unsound new Theories on this subject. d. The obligation on a State not to set up custom- houses on its territory along the frontier of some other State. 259. He gives as instances of International Servi- tudes of the other class (Servitudes pati) to which a State may be liable : — a. The being obhged to allowr passage of the troops of another State through its territories, or any portion of them. b. The being bound to suffer the troops of another State to occupy any portion of the territory of the Servient State ; or to allow another State to exercise jurisdiction, or to levy duties or taxes in such terri- tory, or to organize and regulate postal services therein. 260. International Servitudes may come to an end,— a. By agreement between the two States ; b. By the dominant State renouncing its right j c. By non-user sufficient to raise the presumption of international abandonment. 261. Bluntschli adds some very ill-considered dogmas, that International Servitudes ought to be treated as obsolete and defunct when they become, what he terms " incompatible with the development of International Right, or with the constitution, the public order, and the wants of the Servient State"*. If this were to be allowed, every State, which found itself burdened by a Servitude, would easily discover (and probably convince itself of) the validity of. reasons why such Servitude should be looked on as * P. 2] 2. OF INTEENATIONAL LAW. 259 opposed to the spirit of modern International Law, or to some new constitution which the dissatisfied State might be pleased to adopt, or to such State's political proclivities. To disregard treaties and pre- scriptive rights on such speculative grounds as these would shake the security of Property as between nation and nation, and would furnish a perilous pre- cedent for the disregard of pubhc faith in other matters. 262. Before we finally quit the subject of Rights Question as to . . the Inter- as to Property, we must take some notice oi a subject national which has been regarded by civilized Mankind in slavery and general, and especially by Englishmen and Anglo- Trade. . . fiiiii' /• i- Can man have Americans or the last tour or nve generations, as one property in of deep importance and painful interest. It is a ™*° subject involving questions which very recent events have induced many Jurists, as well as many Politicians, to urge and discuss with redoubled zeal, and in a very bold spirit of innovation on long established usages. I mean the subject (or rather the connected subjects) of Slavery and the Slave Trade, and the question whether human beings can ever be regarded as the property of other human beings, as Bes posites in Commercio, according to either International Moral Law or International Positive Law. 263. Of the recent events to which I allude as Effect on the agitation of having stimulated the agitation of this question, the this question . , . produced by first, and incomparably the greatest, is the general recent events. Abolition of Slavery throughout the United States of of slavery in America. The second is the Emancipation of the states™^ Russian Serfs by the present Emperor Alexander II. patioTTthe n Serfs of ° * EuBsia. 260 FIEST PLATFOEM The late reyelations of the horrors of the inland African Slave Trade, as well as of the coast traffic in Blares. How the subject is now dealt with by Blimtschli. By Hefftcr. Thirdly, I place the revelations which Livingstone, Baker, and other travellers have lately made of the hideous amount of desolation and cruelty vphich the Slave Trade causes throughout the greater part of the interior, as vrell as along the coasts of Africa — of the brutalization, as well as of the physical misery, which it inflicts upon the inhabitants of that continent. 264. I will quote some instances of the manner in which many PubHcists now speak of such topics. In 1874, we find Professor Bluntschli, in his 'Droit International Codifie,' maintaining as a fixed proposi- tion of Jurisprudence that : — " II n'y a pas de pro- priete de Thomme sm- homme"*. He says that " Ce Principe, indique par la nature, et connu deja des Jurisconsultes Romains, a ete meconnu pendant des siecles par les peuples, a leur plus grand prejudice. . . . On ne devra plus a I'avenir laisser les etats, sous pretexte qu'ils sont souverains, introduire ou con- server chez eux I'esclavage; on devra cependant re- specter les mesures transitoires prises par un etat pour faire arriver graduellement les esclaves a la liberte." In other paragraphs t he says : — " Le Droit inter- national ne reconnait a aucun etat et a aucun parti- culier le droit d' avoir les esclaves." " Le commerce des esclaves et les marches d'esclaves ne sont toleres nulle part. Les Etats civilises out le droit et le devoir de hater le renversement de ces abus partout ou ils se rencontrent." HefFter, in his treatise on * P. 213, ed. 1874. t Paragraph 361, p. 214, and paragraphs 362, 363, ib. OP INTERNATIONAL LAW. 261 ' Le Droit International de I'Europe ' (p. 116, edition of 1867), speaks of " the principle that Slavery exists no longer " as being nearly enregistered in European International Jurisprudence. Mr. Dudley Keld, in By Dudley his ' Draft Outlines of an International Code ' (pub- lished in 1872), inserts a clause* declaring that " Man is not the subject of ownership. Every human being is a person — that is to say, a being capable of acquiring rights and exercising them ; and no one is subject to slavery or involuntary servitude, except in punishment for crime, whereof the party shall have been duly convicted." The next paragraph in his projected Code ordains that " If by the Law of any nation, not a party to this Code, the slavery of human beings is permitted, such slavery is local, and the slaves become free on coming within the jurisdiction of any free nation or State ; and such nation or State is bound to respect and defend their liberty." In an earlier part of the same Code, which defines the crime of " Piracy," it is declared that every " person is to be deemed a pirate who, beyond the territory of any nation, reduces to slavery, or holds in slavery, any person whatever ; or conveys, or receives with intent to convey, any person whatever as a slave "f. 265. I am not going to introduce here an essay on the History of Slavery and the Slave Trade ; I will only briefly remind my readers of the wide difference * Paragrapt .539, p. 377. mitted -within the territory of t P. 33. Mr. Dudley Pield any nation, are tp be left to adds that " the Acts specified in local law." -this subdivision, when com- 262 FIEST PLATPOEM Different between the spirit of the passages just laid before form°eriy them, and the spirit in which even just and wise men aes™subje°te. in England generally regarded such subjects down to the last part of the eighteenth century*. And long * " FoT a very long time England, while considering it- self to be highly enlightened and civilized, looked (as other enlightened and civilized Euro- pean States looked) compla- cently and approvingly on the existence of slavery in the "West- Indian colonies, and on the vigorous practice of the slave trade, by which these colonies received fresh supplies of servile negro population. It was even thought laudable policy to be- come slave-carriers for other nations. Statesmen of all parties in the early part of the last century thought it patriotic to obtain for England the ' Assiento,' as it was termed — -that is, the lucrative monopoly of bringing negToes from West Africa to the Spanish American Dominions. Towards, however, the end of the century, men were found who thought and spoke differently ; and they were men whose words were weighty. Dr. Johnson was one of the first of them. Wilber- force and other statesmen also came forward, who gave a practical cooperation in Parlia- ment to the strong efforts which Clarkson, Zachary Macaulay, Stephen, and others were making against the main- tenance of the slave trade. An Act prohibiting British subjects from engaging in any way in the slave trade was passed in 1807. Then the struggle was continued for the overthrow of slavery itself, which was effected in 1833. In that year an Act was passed by the imperial Parliament, by which slavery was abolished in aU British colonies, and £20,000,000 sterling were voted as compensation to the slave-holders." — Imperial and Colonial Constitutions, p. 361. A great blow to Slavery had been dealt in England in 1771 by the judgment of the Court of King's Bench (Lord Mans- field being Chief Justice) in the case of " Somersett the Negro." - Before that time the sale of negroes by bargains made at the Eoyal Exchange in London, and similar public places, was not uncommon. But the Court then declared that no kind of Slavery could be recognized by the English law as valid in England, except the ancient and long obsolete status of vU- leinage. Lord Mansfield said that " The state of Slavery is of such a nature that it is in- OF INTERNATIONAL LAW. 263 after England had freed herself of slave-holding and slave-traffic, the most active States and the most energetic politicians in the great Anglo-Saxon com- munity westward of the Atlantic maintained and advocated Slavery with indomitable zeal, and gene- rally successful vehemence. It is true that the Mari- African slave time Slave Trade (that is, the importation of fresh gmeraiiy negro bondmen from Africa into America) was pro- °^ ' hibited by the United States not long after they became independent, and was declared by their legis- lature in 1820 to be Piracy. Brazil prohibited it in 1830 ; and nearly all the powers of Europe have done the same. But the traffic in home-bred negroes (in- Traffic in eluding hundreds and thousands of unhappy beings sk^s ^^ in whom the admixture of African blood with Euro- pean was hardly perceptible) flourished in America capable of being introduced on " When they [the Negro Slaves] any reasons, moral or political, got out of the territory where but only hy positive law." "It they became slaves to the is so odious that nothing can Plaintiff, and out of his power support it hut positive law." and control, they were by the (See the comments on this case general law of nature made in 1 Phillimore, 336, and free, unless they were slaves Wheaton, ' Histoire du Droit by the particular law of the des Gens,' t. 2. p. 353.) In place where the Defendant the subsequent case in the received them." The French King's Bench of Forbes v. Courts had long previously re- Cochrane, 2 B. C. 463, uphold, cognized the principle that fo- ing the same doctrine, it was reign slaves became free on said by the Court that a right touching the sbil of France, in persons in their character See 1 Phillimore, 340 ; Whea- of Slaves cannot be " considered ton, ' Histoire,' vol. ii. p. 355. as warranted by the general Other cases on this subject wiU law of Nature." " The law of be referred to presently. Slavery is a law in invitum." 264 EIRST PLATFORM American Civil War between Northern and Southern States. Abolition of Slavery not originally designed by the Northern leaders. But it became a necessary result of the War. Liberating Proclamation of January 1, 1863. until the third year of the recent Civil War between the Northern and Southern States. 266. That war, although it led to the abolition of Slavery in the United States, was not undertaken or carried on by President Lincoln and the other chief Statesmen of the North for that purpose. Their declared object was to save the Union, and not to meddle with Slavery*. The President considered that he had no lawful right to interfere with Slavery in the States where it existed. But as the struggle was prolonged, and the gigantic powers of the Slave- holding South developed themselves more fully and more formidably, the Northern chiefs found that new measures in order to weaken those powers were in- dispensable, and "mihtary events by degrees ren- dered the abolition of Slavery an unavoidable ne- cessity." This was effected by a Proclamation issued on the 1st day of January, 1863. 267. President Lincoln himself said of this great liberating measure, " I claim not to have controlled events, but confess plainly that events have controlled me. It is the work of God""!-. And in one of the last clauses of the Proclamation itself he uses the words (which to us, who know how soon his assassi- nation followed, seem spoken from out of the shadow of the grave), " Upon this act, sincerely believed to be an act of Justice, warranted by the Constitution upon military necessity, I invoke the considerate * See Draper's ' History of the American Civil "War,' vol.iii. pp. 596, 597. t Draper, vol. ii. p. 611. OP INTEENATIONAL LAW. 265 judgment of mankind, and the gracious favour of Almighty God." 268. The practical question for those, who believe Present prac- . I'll ^'"^ questiona this act to have been both lust and good, is whether for the ab- , . horrers of Civilized States should now promptly and energeti- siareryto ., . , . . , „ . . deal with. cally act m the same spirit, by retusing to recognize Apparent any rights of Property as created by Slavery, by strong " ^ ° forcibly liberating Slaves, and by forcibly suppressing measures. Slave-trading in every part of the globe where it is found to be practised ; treating it as a self-evident crime against humanity, for which all who take part in it are justly liable to suffer severest punishment at the, hands of any one who has the power to inflict it. 269. Desirable as such summary measures may Eeasonsfor 1 • 1 1 1 c (• 1 cautious appear to be in order to purge the earth from foul procedure, evil, there are grave reasons for caution as to adopting them. 270. Here, as in so many other cases, we shall 'Xhe great Boman Jurists gain valuable light, both theoretically and practically, may be con- by consulting the great ancient masters of Roman Law. 271. Far wiser in this respect than the highest Greek Philosophers, the Roman Jurists taught ex- pressly that all men are free by nature*, and that * Ulpian, as cited in the 1st Sed posteaquam jure gentium Book of the ' Digest,' Title 1, servitus invasit, secutum est says of Manumission : — " Quae beneficium manumissionis ; et res a jure gentium originem quum uno naturali nomine ho- sumsit, utpote quum jure na- mines appellarentur, jure gen- turali omnes liberi nascerentur, tium tria genera esse coeperunt : nee esset nota manumissio — liberi ; et his contrarium quum servitus esset incognita, servi ; et tertium genus, liberti. 266 PIEST PLATFOEM What the " Natural Law " was which the Boman Jurists considered to be violated hy Slave-holding. What the Jus Gentium was by which Slavery was instituted. Slavery is contrary to Natural Law. Indeed they went further, and maintained that by Natural Law all men are equal*. 272. The Natural Law here spoken of in the ' Digest ' means that Law of Nature, which the Jurists of the golden age of Roman Jurisprudence (that is, from Cicero's time down to the conclusion of the reigns of the Antonine Emperors) adopted from the Stoic Philosophy, and which was believed to embody the dictates of Right Reason, from which Nature — that is, the whole orderly system of the Universe (Koo-juoc), moral and intellectual, as well as material and sensual, receives its being and its government. 273. The Roman Jurists believed that the leading principles of this Natural Law are to be traced in the Laws of all Nations, thus making up a Law common to all Nations. But although this " Law common to all Nations," this Jus Gentium, is generally derived from the Law of Nature, and therefore to a very great extent is identical with it, it is not so altogether, nor in all instances. Foreign elements — elements some- times alien from, sometimes hostile to, Natural Law — have been added by human legislatures and tri- id est hi qui desierant esse servi." See also the passage from the Jurist Florentinus in the same title. According to him Slavery is " Constitutio juris gentium, qua quis alieno domiuio contra naturam sub- jicitur." * "Quod ad Jus Naturale attinet, omnes homines sequales sunt." — Ulpian, cited in the 50th book of the ' Digest.' Austin (vol. i. p. 398) has ex- posed forcibly the " gross mis- conception" of some modern writers, who have railed at the Eoman Jurists for degrading the slave to a level with things. OF INTEENATIONAL LAW. 267 bunals, contra rafionem juris. And in some cases so many nations have concurred in the adoption of certain usages and institutions not springing from the Law of Nature, that such usages and institutions have become parts and parcels of the Jus Gentium, and must be recognized as such, until right reasoning persuades the nations to renounce them, and to purify the Jus Gentium from the tainting dross. But this purifying process is to be eflfected by How this Jms PI p iiiiT'ii 11 Gentium is to peaceiul reiorms, conducted by Legislatures and by be restored to 1 . , i 1 1 J. • i- 1 i- harmony with Jurists, not by hasty innovations or revolutionary jm Natures. violence. Such were the principles and such was the practice of the great Jurists of old Rome. They avoided conceited temerity in working out The splendour theories. They showed deep respect for sentiments during yaiue „ , „ . , p , T . . of the Golden 01 order, tor ancient usage, tor public opinion, Roman juns- and especially for the general opinion of the legal to'the'prudent profession. At the same time they kept steadily in weUasVthe view an ideal pattern of Jural excellence, by which ofEomX"^ prudent and much-needed reforms might be fashioned, ^'■^' J«"9ts. and according to which deficiencies might be filled up at convenient seasons. From the spirit also of this ideal perfect Law they could always obtain right canons of interpretation for the solution of doubts, and for practical choice among difficulties. By thus abstaining, and by thus acting, the intellectual chiefs of Rome's golden Jural age,- from AquilUus* and * C. Aquillius Gallus, Ci- the new school of Jurists at cero's colleague in the Prsetor- Eome, who changed the cha- ship, B.C. 66, seems to have been racter of the Eoman legal one of the earliest and sagest of system, in which arbitrary di- 268 PIEST PLATFOEM Consistency of the Roman Jurists in their treat- ment of Slavery. General prevalence of Slavery. Cicero down to Ulpian and Modestinus, acquired for their country's law its unrivalled lustre, and its undying powers of benefiting the human race*. 374. The Roman Jurists were therefore thoroughly consistent with the general rules of their best school when they taught that the servile bondage of human beings is a violation of the Law of Nature, and yet they did not deny its legality so long as it formed part of the Jus Gentium. 275. No one, who is even moderately conversant with history, can doubt that as a matter of fact the Romans were right as to the early and the general prevalence of Slavery, and as to its recognition by the laws of all, or of almost all nations, including the most as well as the least civilized. Roman Juris- prudence necessarily acknowledged, even while it stinotions and teclinicalities had previously worked as exten- sively and iniquitously, as we have seen them operate in the law-courts of England. Some of the most valuable of the law- reforms of AquiUius are re- ferred to by Cicero in the ' De Offlciis,' lib. 3. We may hope that we now (1875) are about to see the promised blending of Law and Equity make legal improvement here as rapid' as it was in the law of Eome, after " the stimulus of the theory of Natural Law was applied to it " (see Maine, p. 57). But for this to be ensured, our laws must be administered as well as framed in the true liberal Praetorian spirit. * With respect to the opi- nions here expressed as to the occasional opposition between Jus Naturale and Jus Gentium, and for the spirit in which the Eoman Jurists worked out or refrained from changes, see p. 12, supra, and note, and the authorities there cited, espe- cially the chapters of Sir H. Maine's 'Ancient Law.' See also Savigny, ' Traite du Droit Eom.' vol. i. ch. 2, cited by Sir George Bowyer in 'Public Law,' p. 123. OV INTBENATIONAL LAW. 269 stigmatized, the relationship of owner and bondman ; and however much we may value the now common and rapidly growing change of pubhc opinion on the subject, it is impossible to find any such general Slavery never ... /• m 1 ,1 i-i T T renounced by renunciation oi biavery by the great Commonwealth the great of States, or even by the civilized portion of it, as can wealth of justify us in assuming that it is no longer to be regarded as an institution, such as it was viewed by the Statesmen and Judges of Rome. The subject of the lawfulness of trafficking in Slaves is to a great extent part and parcel of the main subject, whether there can be lawful property in a Slave ; although violences and horrors have been, and are, connected with certain branches of Slave-trading, which (as we shall see) may justify, even in a strictly international view, the forcible interference of foreigners to put an end to such crimes under special circumstances. But, as a general principle, the right to deal in Slaves must depend upon the right to have Slaves. 276. It would occupy an undue amount of space Numerous i-pT 1 i ii 1 ■,■ decisions of in this volume it 1 were here to go through senatim European and all the cases on this subject, that have been brought tribunals. before various European or American tribunals, or cases t^be"^ have formed the subjects of public discussion by here.'""^ Statesmen. The leading case has always for the last J-eading ease ° ■' Lord Stowell s half century been considered to be the case of 'Le judgment in '' . ' Le Louis.' Louis'*, in which "the wrhole subject underwent a most full, elaborate, and profound discussion"!, and in which I^ord Stowell delivered one of his most * 2 Dodson's ' Admiralty t Kent, 1 Comment, p. 208. Eeportfi,' 210. 270 FIE8T PLATFOEM Leading case in the American Courts. 'The Antelope.' luminous and masterly judgments. He pronounced that the Slave Trade, though unjust and then con- demned by the statute law of England, was not piracy, nor was it a crime by the universal law of nations. He said that " to make it piracy, or such a crime, it must have been so considered and treated in practice by all civilized States, or made so by virtue of a general convention. On the contrary, it had been carried on by all nations, even by Great Britain herself, until within a few years, and was then carried on by Spain and Portugal and not absolutely prohibited by France. It was therefore not criminal traffic by the law of nations ; and every nation, independently of treaty, retained a legal right to carry it on. No one nation had a right to force the way to the liberation of Africa hy trampling on the inde- pendence of other states, or to procure an eminent good hy means that were unlawful, or to press forward to a great principle by breaking through other great prin- ciples that stood in the way." 277. Chancellor Kent says that the final decision of the question in America has been the same as in the case of the ' Le Louis.' " In the case of the ' La Jeune Eugenie ' it was decided in the Circuit Court of the United States in Massachusetts, after a masterly discussion, that the Slave-trade was prohibited by universal law. But subsequently, in the case of ' The Antelope,' the Supreme Court of the United States declared " that the Slave-trade, though contrary to the law of Nature, had been sanctioned in modern times by the laws of all nations who possessed distant OF INTEENATIONAL LAW. 271 colonies ; and a trade could not be considered as contrary to the law of nations which had been autho- rized and protected by the usages and laws of all commercial nations" *. 278. We must therefore not only confess that there is a want of proof that the old Jus Gentium as to Slavery has been reversed, but we must admit the fulness and clearness of the judicial decisions which acknowledge, even while they deplore, its continuance. Progress has been made thus far, that the civilized what progress . . has been made nations of liurope and America now concur in re- towards a Jms garding Slavery as being contrary to Natural Law tainted by and morality t. ™'^" * Kent, vol. i. p. 209, The case of ' The Antelope ' is re- ported in 10 Wheaton's ' Su- preme-Court Reports,' p. 66. An important extract from the judgment will be found cited in a note to a page infra of this chapter. t See the English decisions as to Somersett the Negro and Forbes v. Cochrane, and the old French decisions, already cited in note to p. 262. Add to these the case of ' The Amedie,' 1 Acton's Reports, 240, in which Sir "W. Grant, in his judgment, maintained that " the claimant [for restoration of a cargo of slaves], to entitle him to restitution, must show affirmatively a right of property under the municipal laws of his own country ; for if it be unprotected by his own muni- cipal law, he can have no right of property in human beings carried as his slaves ; for such a claim is contrary to the princi- ples of Justice and humanity." See also the similar case of ' The Fortuna,' 1 Dodson, 31. Add to these the American deci- sions cited by Principal Woolsey, page 113, n.from the 'Louisiana Reports;' and see the State Papers that passed in 1841 be- tween the English Government and that of the United States in the case of ' The Creole,' a vessel belonging to a citizen of Virginia, then a slave-holding State. He had on board of her 135 negro slaves. The Slaves rose upon the crew, overmastered them, and compelled them to take the ship into the British port 272 'FIRST PLATFORM The chief States of the civilized world also the Air Maxim reoog- 279. "xheA^r now generally recognize the principle that makes free,'' of Nassau, where the slaves landed. The Americans claimed that they should be given up to their master. This was re- fused by the British Govern- ment, except as to the extradi- tion to the American authorities of certain individuals who were charged with murder. The rest remained in freedom on the British territory. The com- ments on this case of Mr. Wheaton (' Histoire,' vol. ii. 358) on the one part, and of Sir E. Phillimore, vol. i. p. 343, deserve attention. Principal Woolsey (p. 113) evidently considers that the British Go- vernment WM in the right. See also the (2icv\riv, ri birola Sici riiv oirXaiv t^v »/\ \ur6u)s."— Vol. i. p. I. " Tci aTTOTeXeafiaTa rrjs 'E\- XrivtKrjs eTravaaraireuis eSeiydBri- aav yiyavTiaia Kai kut &Wov TpoiroV SiOTi at'iTpetpav rds vo\vdpvWrjTOVsapj(as r^s'lepas ^ifi/xaj^las, KaTaStKal,6vdri Trpb aiiii'wy els tov Ta(j)ov TTJs alo^ias Kai ttJs SovXeias, avvirpe^av Kai els to ko Sta- XvaiotTi fiiav fieyaXrii' Kai jraXaidv avTOKparoplav yevvqdeXauv av- SpioOetarav, yripaaaaav Kai airo- OyfitTKOvaay iLveirKrTrifxova dirt- KoivioviKijy Kai fidpj3apov." — lb, p. 4. Intervention to compel the observance of the Laws of War will be spoken of in a subsequent chapter. 302 PIE8T PLAirOEM of this kind of right of interposition, that it " must depend upon the special circumstances of the case. It is not susceptible of precise limitations, and is extremely delicate in the application. It must be submitted to the guidance of eminent discretion, and controlled by the principles of justice and sound policy. It would clearly be a violation of the law of nations to invite subjects to revolt who were under actual obedience, however just their complaints; or to endeavour to produce discontents, violence, and rebellion in neighbouring states, and, under colour of a generous assistance, to consummate projects of ambition and dominion"*. stronger 313. Sir Robert Phillimore (all whose sympathies Phmimore. are evidently with the Greeks, and with the States- men who effected their liberation) says of the sup- posed right of Intervention in behalf of the interests of humanity, that " it may possibly arise from the necessity of Intervention by Foreign Powers in order to stay the effusion of blood caused by a protracted and desolating civil war in the bosom of another State. This ground of Intervention, urged on behalf of the general interests of humanity, has been fre- quently put forward, and especially in our own times, but rarely, if ever, without others of greater and more legitimate weight to support it. " As an accessory to others, this ground may be defensible; but as a substantive and solitary justifica- tion of Intervention into the affairs of another country it can scarcely be admitted into the code of Inter- * I Kent, Com. p. 25. OF INTEENATIONAL LAW. 303 national Law, since it is manifestly open to abuses tending to the violation and destruction of the vital principles of that system of jurisprudence — such abuses as generated the several partitions of Poland, the great precedent so often quoted, and so often imitated by the violators of International Law"*. 813. If we now look back on what has been said General as to Intervention in another State's internal poUty, Principles. and if the various rules which have been propounded are tried by us (as they should be) by the test of general utility, as well as by the balance of authorities, we shall, I think, find that the following principles are deserving of adoption. As a general rule, all such Intervention is un- As a rule .•n 11 Interrentiou justmable. is unlawful. 314. But Intervention may be justifiable, and even Exceptional , , . . . ,. , rnt cases stated a duty, m certam exceptional cases. These are : — andoon- 1st. Where some other foreign power has inter- h mere we vened already, so that our purpose is not to introduce ehec7inter- but to check Intervention. ™° '°"' 315. 2ndly. Where the rulers of the State, with 2. where our the aff'airs of which we intervene, are plainly and ^nacedwith .•1,1 J.- ■ 1 J. actual hostility unmistakably acting m such a manner as to menace by the party other States with actual hostility. wTinte^ene. 316. 3rdly. Where we intervene in behalf of a 3. Wierewe , 1 1 1 • 1 1 1 intervene in grievously oppressed people, which has never amalga- aid of a mated with its oppressors as one nation, and which oppressed its oppressors have systematically treated as an alien hT opprclsoT race, subject to the same imperial authority, but in ^^eommr4y other respects distinct, the distinction being the dis- '^^ ^^e™"*^*' * 1 Phillimore, 441. °'^"'- 304 FIEST PLATrOEM tinction between privileged and burdened, between honoured and degraded, between fully protected and ill protected by law in primordial rights of security for person and property — and the distinction being hereditary, permanent, and practical. Extreme 317. And cvcn whcu a case appears to fall within needed as to this third class of cxceptions, we must scrutinize it exception." Very Carefully, before we admit it to that character ; and great care must be taken lest there be a violation of the principles of Rights of Property, of Domi- nion, or of Empire, whether acquired by compact or by Prescription. The inherent sanctity of these rights, and the importance of respecting them for the sake of the interest of general Utility, have been set forth in preceding parts of this work *. Requisites for 318. Before we approve of Intervention in behalf a case to come <. i i • i. -j. i i. j. i i ii / within it. 01 an Oppressed subject race, it ought to be clear that the non-amalgamation of the two races has been due entirely to the haughty injustice of the dominant race, and that no fair hope of equal laws and equal franchises has been held out to the subjugated and down-trodden nation. Unless these limitations to the exception are strictly attended to, interventions in behaK of what it is now common to term oppressed nationalities are likely to prove the sources of as much unjust war and misery to mankind, as have ever been brought about by interventions in behalf of what used to be termed the Right Divine of Kings, and of the sacred cause of Legitimate Government f. * See p. 252 et seq., suprd,. unlawfulness of the interference t The subject of the general by one State with the form of OF INTEENATIONAL LAW. 305 319. One more exception to the general doctrine An additional of Non-intervention may, I think, be fairly added. ZT'""^^ It is where the King, or dominant party of a nation keeps up, in defiance of the State's fundamental Laws, a mercenary army of regular troops, especially if carefully organized and officered by men who are of creed, of politics, and of feelings alien from those held by the great majority of the population, and where, by this being done, all eff'ective manifestations of the popular will, and the formation of a truly national force are rendered utterly impossible*. When a Litervention King or a faction does this, and systematically tramples against a" ' on a people's constitutional rights, relying on the uphlidb™'"^ support of the hireling army, in such a case a patriot of o7bf a''™'^' the nation and a foreign ruler are fully justified, the ^0^^ in one in seeking, and the other in affording temporary reepeciTfrom armed intervention, so as to enable the national party *^g ^ationf to rise, and to organize their strength, without the imminent peril of being instantly crushed by the trained instruments of arbitrary power. Under these circumstances, the employment of such a mercenary army as I have described, by the King or dominant government and the internal tempted to be exercised on polity with another is closely European States by the Pen- connected with the topics which tarchy, and by the Holy Al- have been discussed su^trd liance ; and also as to the Ame- (chap. vi. pp. 99-107, and rican Monroe doctrine, and as notes), as to every govern- to the intervention of the ment de facto being a govern- French Emperor Napoleon III. ment de jure for international in the internal affairs of Mexico, purposes. See also the same * See Mamiani, p. 124 ; and chapter, pp. 117-124, as to the Mill, as cited in appendix to influences exercised, and at- Mamiani, p. 359. 306 PIEST PLATFORM Interference of William of Orange in English affairs, and our " glorious " EeTolution of 1688. As to treaty obligations to intervene. Such Treaties are wrong in themselves. faction, is equivalent to having called in foreign forces on the King or dominant faction's side, Counter-In- tervention on the national side becomes then just and laudable. But the foreigner who so intervenes must be strictly cautious not to impose measures of his own on the nation which he comes to liberate ; and he must allow that nation to use its own restored free- dom of will in determining its own future Polity. Such was the nature of what we truly terra the Glorious Revolution of 1688 *. 320. It has sometimes been attempted to justify wars of intervention on the ground that the inter- vening State had bound itself by treaty to uphold a particular dynasty, or a particular form of govern- ment in the State which is the subject of its inter- vention. But this only opens the question whether such contracts to interfere with the internal affairs of another nation are not in themselves contrary to sound moral principles, and to those cardinal rules of International Law, which make a State's right to self- government an essential element of its existence as a Sovereign State. There can be no doubt as to how this question should be answered. A treaty-obliga- tion of such a kind is wrong in itself, and cannot generate any right. As General Halleck has well * See again Mackintosh, ' Eeview of the Causes of the Eevolution of 1688,' ch. ix. I have not thought it neces- sary to allude to the old dis- cussions as to a State's right to interfere by arms in the internal government of another State on account of Religion. Fo such claim is now ever heard of, unless when based on special treaty, and even then its validity is regarded as very doubtful. OF INTEENATIONAL LAW. 307 stated the case, if such interference is in itself un- lawful, no previously existing stipulation can make it lawful. "A contract against public morals has no binding force ; and there is more merit in its breach than in its observance"*. 321. Passing away from the subject of Intervention other cases of in the classes of cases which are usually before the Eights. mind when that phrase is used, we will proceed to consider certain other cases, in which the Rights of one State may lawfully require acts to be done, which acts may limit or impair the Rights of another State. And herein we will take first the class of conflicts of Claims of a state for Right which arise when a State considers itself bound redress for to require satisfaction for wrongs done to members of to its members ., , ., i • J- • while abroad. its community while commorant m a loreign country. 322. This subject has already been alluded to in the last chapter. We have seen that it is a State's right and duty to protect its members wherever they may bef. We have also seen that every State is * P. 86. reasonable protection for such ■f See p. 156, supra, and the resident strangers, and is an- passage from Bluntschli cited swerable to the parent State of in the note at p. 157. those residents if that obliga- Besides the general obliga- tion is broken. This is very tion incumbent upon all States forcibly and lucidly set forth to respect the general duty and in the speech of Sir EoundeU right of every State to protect Palmer (now Lord Selborne) on its citizens wherever they may the " Greek Massacre," which be a State which, either ex- was delivered in the House of pressly or by the implication Commons on May 20, 1870, arising from long sufferance, and is reported in Hansard, invites the residence of stran- vol. cci. p. 1123. "With re- gers within its territories, comes gard to all Englishmen travel- under an obligation to provide ling in a friendly State pre- X 2 808 FIRST PLATFOEM under a correlative duty to prevent its citizens from •injuring other States ; and that if a State fail to do this, it is in general bound to make reparation for such injuries*. We have seen also that a State's right to Inde- tending to civilization, we have a right to look for the obser- vance and the enforcement by that State of the principle which is briefly stated by Chancellor Kent, in his ' Commentaries on Public Law,' where he says ' that when foreigners are ad- mitted into a State upon free and liberal terms, the public faith is pledged for their pro- tection.' That does not, of course, mean that an excep- tional- protection, greater than that which well-constituted go- vernments ordinarily extend, and ought to extend to their own citizens, is pledged to the citizens of foreign States ; but it does mean that those fo- reigners who come within their limits have the public faith pledged to them for the pro- tection of a bond fide settled government, capable of re- pressing violence, outrage, and crime, in that manner and in that degree in which human governments in civilized coun- tries ordinarily are capable of discharging those functions. And it is manifest that if foreigners were not entitled to look for that protection, all possibility of respecting the independent territorial sove- reignty of foreign States would be at an end, and every nation would be compelled to apply its own power for the protection of its own citizens in foreign countries." * See p. 159, supra. The reader of this chapter is espe- cially requested to read the extracts there made from Sir A. Cockburn's Geneva judgment, and the quotations from Vattel and Halleek which are given in the text of that page and the subsequent pages. With respect to what is said in the extract from HaUeck at p. 162, about the act of an individual citizen becoming the act of his State if it approves and ratifies that act, reference may be made to the observa- tions of American as well as of English Publicists on the case of the 'Caroline' ("The People V. M'Leod," Wendell's Reports, XXV. p. 596). It is discussed by Mr. Lawrence in his ' Com- mentaire,' t. iii. p. 432, by Mr. Wheaton in an essay referred to by Mr. Lawrence, and by General Halleek, p. 303 et seq., OF INTEENATIONAL LAW. 309 peiidence gives it the exclusive right of providing its own system of government, and of administering justice -within its own territories*. 323. It is this last-mentioned branch of a State's One state's Right to Independence (a State's right to provide independence its own system of government, and to administer ^thaMther justice within its territories) that comes into conflict toSMurity'"' with those Rights of other States to Security, to which we have just adverted. 324. This conflict may arise, 1st, from compli- Forms which ,. 1-1 . • ill i? • tiifl Conflict cations which are sometimes created when loreign may take. residents receive gross ill-treatment ; 2ndly, from complications which arise when individual members of a State commit injuries to foreign States. 325. In order to prevent verbiage, the State by Tei-mstobe which redress is sought will, in this chapter, be called " the Plaintiff State," and the State from which redress is sought will be called the "Defendant State." 326. The complaint of the Plaintiff State, when it Nature of relates to wrong suffered abroad by its members, may '^"' " ' be that the Defendant State, within whose territories such wrongs have been perpetuated, although it has laws and a system of legal process sufficient, if honestly administered, to give protection against such wrongs who cites other American au- 2 Ex. E. 167, and Secretary thorities. of State in Council v. Eam- Eeference as to the ruling machee Boye Sahaba, 13 Moore, principle on this subject may P. C. 22. also be usefully made to the * See swpnl, p. 163. cases of Burun v. Denman, 310 MEST PLATFOEM Another Form. Another Form. as those complained of, does not choose to administer them honestly in behalf of the injured foreigner. 327. Or the complaint may be that the Defendant State does not provide itself with a system of laws and process sufficient to give the needful protection. 328. Similarly, in cases where the complaint is based upon wrongs committed towards the Plaintiff State by members of the Defendant State, the charge may be that the Defendant State does not honestly put in force the laws which it possesses for the purpose of preventing, or giving redress for, such wrongs ; or it may be charged that the Defendant State fails to provide itself with a system of laws and legal process, sufficient for the purpose of protecting neighbouring States (including the Plaintiff State) from wrongs done by members of the Defendant State. Mixed Form. 329. The Complaint may be, and often is, a mixed one, that the legal system of the Defendant State is internationally defective, and also a complaint that such legal system is not honestly enforced to the extent to which it might do good. This need not prevent the distinct grounds of complaint from being separately considered. 330. Let us begin by dealing with the first head of the first class of cases that has been suggested : let us first take the case where the Plaintiff State complains that one of its members, while resident in a foreign State, has suffered grievous wrong without redress. Here the unquestionable general right of the De- fendant State to Independence, and to exclusive juris- First head of Complaint. Nature of sonism. OF INTERNATIONAL LAW. 311 diction within its own territory is antagonistic to the right claimed by the Plaintiff State to call it to account for the mode in which it conducts its internal administration, and administers its laws. 331. This right of Independence is a very im- importance of portant right ; and it is moreover one in respect of which powerful States are very prone to encroach upon weaker States. If a strong State were to be at liberty to employ its armed forces against its weaker neighbours whenever one of the strong State's citi- zens, who had a lawsuit abroad, got an unsatisfactory judgment, or whenever such citizen received, while within any such State, harm or annoyance, for which he could not punish the wrong-doer, the causes and the pretexts for wars of ambition and oppression would be very mischievously multiplied. At the same time, the right and duty of each State to secure fair pro- tection for its members, wherever they may be, is, as we have seen, equally undeniable. 332. The result is (special regard being had to As a general true Utilitarian principles) the establishment and to be sought -, .,. p ., • • 1 ii i. e • from the local general recognition ot the principle that a toreigner tribunals. who is wronged must, as a rule, first seek redress from the municipal laws and courts of the State in which the wrong has been done to him. If justice is Exceptional . , - , cases. plainly denied to mm there, or very unreasonably delayed, or if the administration of justice be so grossly corrupt, inefficient, or unfair as to make such application worse than useless, his own government may and ought to demand compensation in his behalf from the sovereign authorities of the offending nation. 312 FIEST PLATFOEM Need of caution in 3uch eases. Force not to be employed until tem- perate demand and remon- strance have failed. Kind of force that is first to be employed. " Although the presumption of law is clearly in favour of the decisions of the lawfully constituted tribunals of a State, yet if it is plain that justice has been administered partially and in a different manner to the foreigner than to the subject, the government of the injured party may, notwithstanding such decision, demand justice, and, if it be refused, resort to reprisals. Subjects must submit to the authority of the law, however great the injustice : but foreigners are under no such obligation ; for their own State may by force compel the execution of justice in their behalf"*. 333. But before such a step is taken, it ought to be perfectly clear that the private wrong, which it is thus sought to redress by public arms, was a very great and a very gross wrong. And the denial, or delay equivalent to denial of justice shown by the local tribunals ought to be equally manifest. Even in such a case there ought first to be a temperate and exphcit statement of grievance, and a request for re- dress, made by the State of the injured individual to the sovereign power of the State in which the wrong has been done ; and it is not till such sovereign power has refused inquiry and redress, or has re- sorted to a series of frivolous subterfuges, which amount to refusal, that forcible means for obtaining satisfaction are justifiable. When force is employed for such a purpose, it is never (in the first instance at least) general warfare, but the hmited kind of warfare called Eeprisals, which will be explained presently, * Halleck, p. 298, and see in note to p. 157, svprd. the remarks of Bluntschli cited OP INTEENATIONAL LAW. 313 and which must not be excessive, having regard to the injury vphich prompts them. 384. The general law on the subject is tersely and aenerairuie plainly set forth in the celebrated State-paper of theEngKsh Great Britain in reply to the King of Prussia in 1753.^^^^"° 1753, which has been so often cited. " The law of nations, founded upon justice, equity, and conve- nience, and the reason of the thing, and confirmed by long usage, does not allow of Reprisals, except in cases of violent injuries directed or supported by the State, and of justice absolutely denied in re minime dubid by all the tribunals, and afterwards by the Prince." 335. We have been considering chiefly the com- Cases of plaints, by one State against another, which arise Municipal when there is no inherent defect in the laws or system of legal process of the State within whose terri- tories the wrong has been perpetrated, but where there is refusal or neglect to put such laws and system of process fairly in force. But a complaint of the State to which an injured person belongs may be based on somewhat varying circumstances. It may be im- possible for the State within which the wrong has been done to provide, in the particular instance, protection and redress for the injured commorant foreigner ; and this impossibility may be due to the insufiiciency of the laws and legal process. In this case, the demand for redress made by the parent State of the injured individual involves a demand that the State, within whose territories the injury has been done, shall alter its laws or system of legal 314 FIRST PLATPOEM process, or both. Cases of this kind so closely re- semble in principle the class of complaints on which we are next to enter, that it will be easy to apply to them most of the results of the discussion, which we are now about to institute, as to the cases in which a State claims redress from another State for wrongs committed by individuals belonging to the Defendant State. It is to be remembered that all persons resi- dent within a State are bound by its laws, and amenable to its legal processes. The State is there- fore responsible for them, whether they are of native or of foreign birth. Por the purpose which we are con- sidering, both classes are to be regarded as subjects, and as members of the State. Defendant 336. I liavB already quoted some very valuable not u^imited! observations by Vattel, by General Halleck, and by Sir Alexander Cockburn, on the general principles of International Law, according to which it is the duty of a State to prevent its subjects from injuring other States, or to make reparation for such injuries if they have been committed. The same quotations point out that this duty is not absolute or unlimited. The obligation attaches only when the wrongful acts com- mitted by individual subjects might have been pre- vented by their government, if the State had provided itself with reasonably sufficient laws and legal process, and if it had enforced those laws and employed that legal process with honest earnestness and reasonable vigilance *. * See Buprd, pp. 157-163. ter is requested to refer to the The reader of the present chap- passages there cited, and to OF INTEENATIONAL LAW. 315 337. Complaints against States for the acts of their Difference individual members are generally charges of Neglect. and'actiTe" If the imputation be that the State encouraged or ""*' ratified the wrongful acts of its members, the charge becomes one of direct State-hostility, and it assumes a simpler though a sterner character*. 338. There is another distinction, which must not of Culpa be passed over, though it apphes rather to the extent ^^'^^^ ^^ of the liability incurred by the peccant State, than to the existence of " Feccatum" and hability — rather to the amount of damages than to the cause of action. It is the distinction between a case where the peccant State's omission to use a proper amount of care lest its subjects should injure another State is caused by ill- will on the part of the peccant State towards the injured State, and a case where there is no taint of malice. To employ the technical language of Roman law, there is an important distinction between a case where there is dolus as well as culpa, and a case where there is culpa onlyf. take them as incorporated in used generically, signifies " ma- this chapter. lice" or " criminal design." * See as to this the case " Ovlpa (which generally, of the ' Caroline ' (People v. though not always, is opposed M'Leod), 25 Wendell Eep. to dolus) has three signifiea- 483, commented on by Gene- tions. 1°. Taken with its ralHalleck, p.303ofhis work; large signification, culpa is Buron v. Denman, 2 Ex. E. equivalent to the English guilt. 167. These have already been 2°. Taken with its narrower referred to in this chapter, signification, it denotes gene- supra, p. 308. rally the ground of imputation. f In Eomau-Law language, 3°. Taken with its narrowest ^' Dolus" ot" Dolus Malus" wheTi signification, it denotes crimi- 316 riEST PLATFOEM What negli- gence is actionable ? 339. The main practical matter for consideration is, whether we can fix any, and what, principles as to the nature and the amount of such negligence on the part of one State towards another, in not controlling its nal knowledge short of criminal design, or negligence. It there- fore excludes and is opposed to dolus " (Austin, vol. ii. p. 1092, note). It is in this last-men- tioned sense, that of negligence without actual malice, that the word " culpa" is used in the discussions to which we are now referring. There is an essential differ- ence hetween dolus and culpa, although the phenomena of very heinous culpa sometimes so closely resemble those of dishonest intention that they are undistinguishable by a court of law. This is all that is meant by certain passages in the ' Digest,' which seem to make culpa and dolus identi- cal ; as, for instance, the pas- sage in Digest, 44. 7. 1. 5. " Magnam negligentiam pla- cuit in doli crimen cadere." A sure proof that Homan Law observed keenly the difference between them is found in the fact, that the Law held a cove- nant valid which relieved from the liability of making good such losses as were caused by culpa however gross ; but a covenant was held invalid as contra bonos mores, which pur- ported to give a similar immu- nity when the losses were occasioned by dolus (see Poste's Gains, p. 382, and Professor Goudsmidt on the Pandects (De Tracy Gould's translation). When an actionable injury has been done to one party through the negligence of another, the measure of da- mages is much ampler if there has been dolus mixed with the culpa, than if there has been mere culpa without dolits. If I were to enter here on the details of the complicated and much controverted law as to measure of damages, I should be obliged to consume an amount of space and of my readers' time inconsistent with the general scope of this book. I wiU refer those who wish minute practical information on the subject to Sedgwick on Damages, as edited by Maine ; to the German civilians Hasse and Haenel, who are quoted by Sedgwick ; to the very valuable commentary on the Digest xix. tit. 1. 13, by Pothier, contained in his work on Contracts, vol. i. p. 90, Evans's translation; to 1 Phillimore, International Law, p. 68 ; to the notes to OF INTEENATIONAL LAW. 317 members from injuring that other State, as will authorize the injured State, according to International Law, in demanding redress from the State of the wrongdoers. This subject has acquired great interest by reason of occurrences in very recent history. The The Alabama most important of these occurrences has been the '^^' International Arbitration held at Geneva in 1873, to adjudicate on the claims of the United States against Great Britain for alleged negligence in suffering ships of war to be built, and equipped, and armed in British territories, which were designed to cruise against the commercial marine of the United States, and which did, in fact, commit grievous devastation. Many of the matters which were debated in that Arbitration had special regard to certain rights and liabilities and usages connected with a condition of warfare, which would be out of place in this chapter. But there was large and learned discussion of the general topics of, first, a State's duty not to neglect to provide itself with laws, and a system of process, by which it may control those within its territory from injuring other States, and, secondly, its duty to enforce those laws and process with honesty, vigilance, and vigour. 340. The Award made in the Geneva Arbitration Smith's Leading Cases, vol. ii. Roundell Palmer's Argument p. 430 (4th edition) ; to the as to Literest in the course of " Argument of the United the same Arbitration (Blue States" in the Geneva Arbi- Book, No. 1, 1873, p. 353); tration, p. 212 et seq. of the and an American Treatise, there Eeport published by the Ame- quoted, by Messrs. Shearman rican Government ; to Sir and Eedfield. 318 FIRST PLATPOEM The GeneTa Arbitration. Extent of its value as an authority. Reference to Eoman Law. will, perhaps, not be regarded as a generally applicable authority. It is (to use Austin's language) too much "implicated with the peculiarities of the particialar case" — especially with the fact that the Arbitrators were bound to follow and to obey three particular rules or canons, promulgated at the time of submission to reference, as if those rules had existed and had been recognized by both parties to the dispute at the time when the events occurred out of which the dispute originated. The circumstance is also to be remem- bered, that the Award was not unanimous ; though this would go rather against the weight of its autho- rity, if applicable to other cases, than against its applicability. Still the eminence of the Arbitrators, and the great amount of historical and jural erudition, of statesmanship, and of strong practical sagacity dis' played in many portions of the judgments delivered in the course of that reference by the several Arbitra- tors, are such as to command our respectful attention to their doctrines relative to many important points of generally recognized International Law. The Hecords of the Geneva Arbitration contain many expositions of such doctrines by the Bench, besides many valuable and suggestive arguments by the respective advocates. The fact that the opinions of the Arbitrators differ materially one from another makes the function of commenting on them less presumptuous than it other- wise would be. 841. The authority of the Roman Law was much appealed to ; and analogies were drawn between the liability of one member of the Commonwealth of States Eoman Law. OF INTEENATIONAL LAW. 319 to another State for negligence, and the habihty of one member to another member of the same State for negligence^this last being a topic so very copiously dealt with by the old Roman Jurisconsults, as well as by their commentators and their imitators among the lawyers and lawgivers of modern times. It was, indeed, quite necessary to enter into those subjects at Geneva ; and I must be permitted to treat of them in these pages with more minuteness than I should gene- rally consider to be allowable as to legal details, in a treatise which is not exclusively designed for forensic practitioners*. 342. According to Roman Jurisprudence, every one Faulty who was engaged with another in some matter of aTOortorto Obligation, especially if resulting from an agreement or contract, or from any thing that was assimilated to an agreement or contract, was bound to take certain precautions, the neglect of which (whether resulting in an act or in an omission) was imputable as a Fault. 343. I am quoting in substance Goudsmidt's de- * In drawing the sketch in Sir A. Cockburn's judgment, which follows in the text, of Blue Book, IS". America, No. 2, Eoman and of modern law 1873, p. 32 et seq.) ; of the generally as to the liability of comments of the Chief Justice citizen to citizen for negligence, of England himself; and, above I have chiefly made use of all, of the very valuable obser- Poste's Gains, p. 388 to p. 397 ; vations on " Culpa, Diligentia, of Ayliffe as cited in the note Custodiamprcestare" contained to " The Case of the United in the Treatise on the Pandects, States," Geneva Arbitration, by Dr. Goudsmidt, Professor of Blue Book, No. 2, 1 872, p. 41 ; Jurisprudence in the University and of the text of that part of of Leipsic. This Treatise has the " American Case," pp. 41, been translated by Mr. De 42 ; also of the authorities cited Tracy Gould. 320 FIRST PLATPOEM Quotation from Pro- fessor Goud- smidt. Poste as to Standard of Diligence. scription of this part of Roman Law. Let us pause here, and call to mind that all members of the Com- monwealth of States are under obligations to respect each other's right to Security and each other's right to Independence. I return to Goudsmidt, who proceeds to observe that " the measure of the care to be taken was not always the same ; and it depended chiefly upon the nature of the legal relations between the parties, whether the faulty negligence committed was or was not legally imputable to its author. For this reason the Roman Law established in these cases two degrees of fault — the gross or serious fault, culpa lata, and the slight fault, culpa levis." Some writers add further gradations into culpa latissima on one hand, and into culpa levissima on the other j but the distinc- tion into culpa lata and culpa levis is all that is prac- tically 'important. 344. As Mr. Poste remarks, " The terms ' Gross' and ' Slight,' like other quantitative terms, have no positive signification until we fix upon some unit of measurement or standard of comparison to which any given instance may be referred, and by which it may be measured"*. Two standards are frequently em- ployed by the Roman Jurists : — first, the care be- stowed on important affairs by a diligent and intelli- gent man of business ; and, secondly, the amount of care which the individual, who is charged with neglect of another's interests, habitually bestows on his own interests. " Although there is no necessary antithesis * Poste's Gains, p. 395. OP INTERNATIONAL LAW. 321 between these two standards, yet practically in Ro- man Law they serve to fix the meaning of gross and slight negligence." Gross negligence was the omis- sion to take even that amount of care for another's interests which the party charged took of his own, though he might not be a model man of business. Slight negligence was the omission to take that amount of care which intelligent and vigilant men of business habitually took of business-matters in general. 345. There were some cases, chiefly connected with the bailment of property, in which, from the special relationship between the parties, a liability arose to be accountable for all loss or damage, whether caused by any negligence or not {custodiam prcestare) ; but cmtodiam as there is nothing analogous to these cases in the ^'^'^^ "'^^' dealings of one State with another, it is needless to enter into that subject here. 346, For a like cause it is needless to enter here Culpa ata. further into the subject of the restriction to liability for culpa lata. The cases in which the Roman Law allowed a man charged with neglect to excuse himself by showing that he had done as much for his neigh- bour as he did for himself, are in no respect analogous to any matters that are Ukely to arise for discussion in International Law*. Indeed modern Publicists, and * Professor Goudsmidt says been called to occupy himself of this limited liability, " This with the affairs of others only restriction of responsibility by necessity, or that the rela- seems to me founded either on tions established with another, the fact that he who is sub- instead of being casual and jected to it, and to it only, had temporary, had formed a per- Y 322 HEST PLATrOEM the tribunals of England and the United States, have expressed their disapproval of the usage of the Modern doc- epithcts " Ittta" and "levis" as to "culpa," with a ia?aa^ Levis view to determine whether the inculpated party is or Culpa. .g ^^^ legally responsible for it. The current opinion now is, that it is only material to ascertain the amount of diligence which ought to have been bestowed. A failure to bestow that amount is faulty negligence [culpa), for which the defaulter must answer; and there is no need to add mere words of vituperation*. manent character, so that it was supposahle that the credi- tor had reckoned in advance only on the aptitude and capa- bility which he had remarked in the debtor with reference to his own affairs." * See the numerous extracts from Jural writers of the high- est authority, which are col- lected in Sir A. Cookburn's judgment, pp. 32-34. See the English cases cited in the same judgment, p. 34 ; and the case (referred to in the Ameri- can argument) of " Steamboat ' NewWorld' and others v.King," decided by the U.S. Supreme Court in December Term, 1853, and reported in 16 Howard's Eeports, p. 469. The reference given in the American argu- ment is wrong. The material passages of this judgment will be found at pp. 474, 475. See also the recent very important case of EaUway Company v. Lockwood, "Wallace's Eeports, Supreme Court, U. S., p. 357. The Court, near the close of its judgment (pp. 382, 383), com- ments on " the tendency of judicial opiuion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence, which is due from a party, and which he fails to perform, than of the amount of inattention, careless- ness, or stupidity which he ex- hibits." * * * "In each case the negligence, whatever epi- thet we give it, is failure to bestow the care and skill which the situation demands ; and hence it is more strictly accu- rate perhaps to call it simply ' negligence.' And this seems to be the tendency of modern authorities. If they mean more than this, and seek to abolish the distinction of de- OF INTEENATIONAL LAW. 323 347. As we have seen, the best practical standard Difficulty lies of " amount of diligence" is the amount which a good tion'^ofTuf "^ man of business would give to the administration of ^^^''^■ his own affairs. But no hard-and-fast Une can be drawn here. The standard may be in itself the proper standard ; and if the conduct of the party in question cannot stand the test of that standard when properly applied, a cause of action is proved to exist. But it often may be questionable how the standard ought to be applied. As Sir A. Cockburn has said. Sir a. Cock- " The application of that standard must depend on the on'ittiiB?'"*' circumstances of each individual case, and on the view which the judge may, in his conscience, form of how far the conduct of the individual complained of may or may not have been that which ordinary prudence and sense of duty would have prescribed. I entirely agree with what is said by the learned editors of Zacharise's ' Droit Civil Fran^ais,' on Article 1137 of the French Code : — " ' L' article 1137 se resume en un Conseil aux grees of care, skill, and dill- actwhateverofman that causes gence required in the perform- datoage to another obliges him, ance of various duties, and the by whose fault it happens, to fulfilment of various contracts, repair it.' TouUier, in his Com- we think they go too far, since mentary on the Code, regards the requirement of diiferent this as a happy thought, and a degrees of care in different situa- return to the law of nature, tions is too firmly settled and But such an iron rule is too re- fixed in the law to be ignored gardless of the foundation prin- or changed. The compilers of dples of human duty, and must the Prench Civil Code under- often operate with great severity took to abolish these distinc- and injustice." tions by enacting that ' every y2 324 FIEST PLATFOEM Juges de n'avoir ni trop de rigueur ni trop d'indul- gence, et de ne demander au debiteur que les soins raisonnablement dus a la chose qu'il est charge de conserver, ou de faire, soit a raison de sa nature, soit a raison des circonstances, variables a I'infini qui mo- difient son obUgation pour la rendre ou plus large ou plus etroite.' " What is here said by the learned editors of Zacha- rise appears to me to afford the true criterion. It is for the judge to determine, according to the best of his judgment, with reference to the facts of the parti- cular case, and with reference to the thing to be done or left undone, whether what has been done or left undone, as the case may be, has been what could reasonably and justly have been expected from a per- son of ordinary, capacity and prudence in the affairs of life. More than this is not to be expected. "1 have cited these authorities because, in the absence of any reference to the question of diligence among writers on International Law, it seems to me that the principle that prevails as to men's conduct in the affairs of life may by analogy be well applied to the discharge of its duties by a Government. Applying this standard, one nation has a right to expect from another, in the fulfilment of its international obliga- tions, the amount of diligence which may reasonably be expected from a well-regulated, wise, and conscien- tious Government, according to its institutions and its ordinary mode of conducting its affairs ; but it has no right to expect more"*. * Pago 34 of Blue Book. OP INTEENATIONAL LAW. 325 348. Before we proceed to consider further how Howtheana- this analogy is to be employed in International Law, habmtjoia. let us remember that we are considering a State's prtofemUias" liability to another State for wrongs not ordered and pHe°d toTeai- committed as acts of State, and not subsequently soTeref^'*" adopted so as to become equivalent to acts of State. ^*^^^^' A State's liability for its acts of State is of course absolute and unlimited. But we are now considering a State's liability for acts committed within its terri- tories by individuals, who (by the fact of their being within its territories) were amenable to its laws and subject to its Government. As we have seen, " The responsibility of a State for the acts of its subjects is not absolute and unlimited. The Government of a country can only be held responsible for breaches of International Law committed by its subjects when it can reasonably be expected to prevent them"*. 349. The majority of the Geneva Arbitrators have Views of the held that this limitation as to " reasonableness" applies Genera as to to questions of fact only — such as questions whether a state's°re- certain acts were or were not done, and questions such for acts of ^ as whether so much deception was or was not prac- ^" ^^ ' tised by the individuals perpetrating those acts, as to beguile and baffle the local authorities, though exer- cising very great vigilance, and though armed with all possible preventive and punitive powers by their municipal laws, and by their systems of legal proce- dure and of government. 350. I venture, though with all due deference to that learned majority, to express a belief that they * See p. 160, supra. 326 HEST PLATFOEM The limitation of Eeasonable- uess goes further. Difference between de- fects in Sub- stantive Law and limita- tions of the power of the Exeeutire aa to Process, narrow too much the extent to which the hmitation of Reasonableness ought to apply, and that it is erro- neous to make a State's habihty unconditional when it has experienced difficulties in repressing international wrong-doers, not through defects in its substantive laws, but through the character of its institutions as to criminal procedure ; and it is to be remembered that criminal procedure includes such matters as law- fulness of arrest of person or of detention of property on suspicion, as the requisites of admissible evidence, as the right to trial by jury, and as the powers of the jury at the trial*. 351. If a State's substantive laws were defective, and did not recognize grave International offences as crimes, it would be quite just and proper for other States on receiving injury from the individual citi- zens of such a State, to refuse to allow that State to shelter itself under the excuse of the insufficiency of its municipal laws. * " Every system of crimi- nal law must be composed, first, of laws forbidding specified acts under specified punish- ment, and, secondly, of laws by which, these general provi- sions may be applied to parti- cular cases. The first of these divisions may be described as the law of crimes and punish- ments, the second as the law of criminal procedure. * * * "The law of criminal pro- cedure consists of four parts : — first, the preliminary proceed- ings, including the taking se- curity by imprisonment or otherwise for the appearance at the trial of the suspected person, the collection of evi- dence against him (called in the French system the instruction of the process), and his formal accusation ; secondly, the regu- lation of the trial ; thirdly, the rules governing the evidence produced at the trial ; and, fourthly, theinfliction of punish- ment. These divisions are in- herent in. the subject, and must OF mTEENATIONAL LAW. 827 Let us try here the suggested analogy of the bonus As to Subatan- ac diligens Paterfamilias. Let us imagine the head ^^l^^^\i of a household, who established as a principle in his t'ie.^«^«'/«- household that it was not a wrong which he would trouble himself to prevent or punish, if any of the inmates, or even of the temporary lodgers in the house, plotted and prepared and carried on, while under his roof, nuisances to any of the neighbours. It may be said that this would amount to virtual authorization of injury. But if, instead of a positive declaration to this suggested efifect, he were to draw up a list of rules of the house, specifying the acts which, and which alone, he would prevent or punish, and the list did not include offences against the neighbours, the injurious effect towards the neigh- bours would be much the same. In such case, if the neighbours complained, the " Paterfamihas " would not be listened to, if he tried to excuse himself by saying that the rules of his house did not forbid such conduct. The short reply would be either this, "Then you ought to take care that your rules do forbid it ;" or they might rejoin, " We care nothing about your private rules and regulations ; we mean to protect ourselves under the public law." There is no difference of opinion in the Geneva Absence of Judgments on this point. Sir A. Cockburn said: — protelt* neigh. " It is quite clear that the obligations of the neutral sufficient"" exist in some form or other in View of the Criminal Law every nation and under every of England, by Ktz-James conceivable system." (General Stephen, p. 7.) 338 riEST PLATPOEM The require- ments of International Law must be obeyed. Sir A. Cock- burn's dictum. Count Staempfli's. Difference as to Eight of Poreign States to object to a State's system of Criminal Procedure. State spring out of, and are determined by, the principles and rules of International Law, indepen- dently of the municipal law of the neutral. They would exist exactly the same, though the Neutral State had no municipal law to enable it to enforce the duties of neutrahty on its subjects. It would obviously afford no answer on the part of a neutral government to a complaint of an infraction of neu- trality, that its municipal law was insufficient to enable it to ensure the observance of neutrality by its subjects — the reason being that international law, not the municipal law of the particular country, gives the only measure of international rights and obligations." 352. Count Staempfli (the Arbitrator appointed by the Swiss Confederation), in his judicial statement of General Principles of law, pronounces that " the ab- sence of all municipal laws, or the want of sufficient laws on the subject, does not in any way detract from the law of nations, either as regards international rights or obligations"*. 353. I believe that the true International Law on the subject has been correctly explained in a very recent discussion in the British Parliament by the pre- sent Secretary of State for Foreign Affairs. On the 1 3th of July last, the attention of the House of Lords was called to the following passage in a despatch of the German Minister to the Minister for Foreign Affairs of the King of the Belgians, dated the 3rd of February last : — " They are incontestable principles of International * Blue Book, North America, 1. 1873, p. 3. OP INTEENATIONAL LAW. 329 Law that a State ought not to permit its subjects to disturb the internal peace of another State, and is bound to take care by its laws that it is in a position to fulfil this international obligation." The noble and learned Lord who brought the sub- ject forward, appeared to deny that a Foreign State could ever have a right to claim more than the en- forcement of actually existing municipal laws. Lord Derby, in his answer, at first commented as follows on the opening part of the paragraph in the German State-paper : — " A State ought not to permit its subjects to dis- Lord Derby turb the internal peace of another State. Very well ; international but what is disturbing the internal peace of another respect oAt" State ? If the proposition is put in this way, ' All uma^^ "^ acts committed by the subjects of one State which have a tendency, however indirect and remote, to cause disturbance in another State, ought to be for- bidden,' — then it amounts to a claim so monstrous and unreasonable that one may safely affirm that it never has been put forward by European diplomacy, and that it probably never will be. To take an ex- ample : — The abolition of slavery in one country may have a strong tendency to disturb the internal peace of a slave-owning community in an adjoining country. A political revolution, in whatever sense it is made, tends, by the sympathy it creates, or by the alarm which it excites, to produce important changes beyond the frontier of the State in which it occurs. But no one has ever said that in altering its own institutions a State was bound to take into account the efiect 330 FIEST PLATFOEM which such change might have on its neighbours. That interpretation of the words must therefore be put aside as extravagant. But if we put an opposite construction upon them — a construction which they will equally well bear — and read them in this way, ' There are some acts, tending to disturb the internal peace of another State, which by International Law a State is bound on that ground to forbid ' — if, I say, the claim is carried no further than that, it is a claim which, within certain limits more or less defined, I conceive that every civilized Government has in practice admitted." Lord Derby then added the following valuable remarks on a State's International obligations towards other States as to the sufficiency of its Substantive Laws : — " The noble lord seemed to lay it down as an abs- tract and general proposition — and I did not under- stand him to admit exceptions to it — that each State is necessarily supreme in the making of its own municipal law, and that no other State has a right to call upon it to make alterations in that law. That doctrine no doubt represents the general rule ; but if laid down unconditionally, it seems to me open to criticism, because it shuts you up to the conclusion that every State must be the sole judge for itself what its international duties are. Now that is equi- valent to saying that there are, or soon will be, as many different systems of International Law as there are independent States ; and that, again, is very much like saying that there is no such thing as International Law at all. It seems to me, speaking with great or INTEENATIONAL LAW. 33 L deference, that if a State lies under recognized inter- national obligations towards another State, it is no answer to a charge of non-fulfilment of those duties that they were not fulfilled because municipal law did not allow of their fulfilment. The State aggrieved might surely reply to that plea, ' What is that to us ? If your law is defective you can mend it ; but the bad- ness of your municipal legislation does not lessen our rights or our claims as against you.' Once admit that no nation can be called upon to amend its internal laws, however defective, by any other nation, and you put an end to all international compacts. Por, on that hypothesis, a State, wishing to free itself from an in- convenient obligation to another State, has nothing to do except to alter its own laws in such a manner as to make the fulfilment of that obligation impossible, and then, according to the theory, the obligation itself ceases. Surely that is very like saying that no State is ever to be bound to any thing ; and then what are treaties worth ?" 354. It may therefore be admitted that Foreign States may have the right to treat grave defects in the substantive criminal law of a particular State as wrongful, and to ignore excuses founded on such defective conditions of substantive muni- cipal law. But there seems to be a very wide distinction when we come to the State's municipal law of criminal process. I have already explained how much is embraced under the phrase " Criminal Process," or " Criminal Procedure," If complaint is made against a State that some of its subjects have 333 FIEST PLATPOEM Weed of attending to nature and amount of preTentiTe and punitivepower possessed by the Govern- ment. Sir A. Cock- burn's obser- vations on this. The more despotic the Goyermnent, the more efficacious its done acts injurious to another State, and the incul- pated State replies that, by reason of the nature of its constitution, and of its legal system, it could not prevent or punish the alleged wrongdoers, the De- fendant State thereby sets up an answer, which ought not to be summarily got rid of by saying, " You are screening yourself under the faulty condition of your municipal law, and in international disputes such excuses are not to be listened to." Sir A. Cockburn has justly said that in such cases regard must be had to the preventive and punitive means which the in- culpated government had at its disposal. He forcibly observes that, " when we come to the question of the means which by law should be placed at the disposal of the Government, difficulties of a very formidable character immediately present themselves. " The more despotic and unlimited the power of a Government, the more efficacious will be the means at its command for preventing acts which it is desired to prevent. Is this a reason, in a country where absolute and unlimited power is unknown, where every power is exercised in subordination to the law, and where, for any interference by the Government with the rights of person or property, redress may immediately be sought, for investing the Executive with an absolute and irresponsible power, at variance with the whole tenor and spirit of the national institutions, in order to protect a belligerent from the possibility of injury from a violation of neutrality * ? * Sir A. Cockburn was speaking with special reference to the Alabama claims ; but the principle of his reasoning applies or INTERNATIONAL LAW. 333 355. "Again, a nation has a system of procedure Sh-A. Cock- which is in harmony with its institutions, and with co^inued"'^ which it is satisfied. According to that system, persons against whom the law is to be put in force cannot be subjected to be interrogated in order to establish their criminality. Proof must first be pro- duced, from which, while it remains unanswered, a presumption of guilt arises, before they can be called upon for a defence. Because a difierent system might be more efficacious in enabhng the Government to establish a case for confiscating a suspected vessel, is the legislature called upon to change the law be-' cause other nations become involved in War ? "Again, the government of a country has been carried on for years according to an established system of official routine. This system may be somewhat complicated, and may render the action of the Executive less speedy than it might otherwise be. But it is safe, and has been found to work sufficiently well in carrying on the affairs of the nation at home and abroad. Because a more rapid and a more direct action on the point to be reached might be obtained by a simplification of the official machinery, is a Government to be held guilty of negligence, because, not foreseeing what was about to happen, it had not altered its ministerial arrangements accor- dingly ■? "A Government, in all matters involving legal consideration, is in the habit of consulting and acting to all conflicts between one another State's right to Inde- State's right to Security and pendence. 334 FIE8T PLATFOEM under the advice of lawyers specially appointed to advise it. The purpose is the laudable one of en- suring the perfect legality of the proceedings of the Government ; but this advantage necessarily involves some loss of time, during vrhich the action of the Executive is for the . moment suspended. Is this practice inconsistent with the diligence required of a neutral Government "i Honestly intending to do what was right, is it to be held responsible because a vessel equipped for war has taken advantage of such a delay, though, perhaps, in the particular instance accidentally prolonged ? The same. 356. "I cau Only auswer these questions in the negative. I do so on the ground, as to some of them, that they are things which no Government could reasonably be asked to do, — as to all, that they were not such things as a Government of ordinary prudence and sagacity, carrying on its affairs in the usual way in which the affairs of Governments are carried on, could have foreseen the necessity of pro- viding for. The same. 357. " Passing from the law, and the means which the law should place at the disposal of a Government, to enable it to repress intended violations of neu- trality on the part of its subjects, to the action of the Government in the use of such means, it seems to me that two things are incumbent on a Government : — " 1st. That it shall use due diligence to inform itself, by the use of the means at its disposal, whether a violation of the law is about to be committed ; and " 2ndly. That, being satisfied of the fact, it shall OF INTEENATIONAL LAW. 335 use due diligence in applying its means and power of prevention. " These conditions honestly and bond fide satisfied, no Government, as it seems to me, can be held liable for the acts of its subjects ; but such acts must be deemed to be beyond the reach of any control y/hich. it can reasonably be expected to exercise." 358. In truth the doctrine maintained by those The contrary whom Sir A. Cockburn, in this part of his judgment, wtcs the is opposing, would, if admitted, involve the necessity Institution of of the universal establishment of Despotic Govern- d^sp"''^""- ments. Until a State had placed itself under a ruler armed with the greatest practicable amount of execu- tive power, and free from every constitutional check whatever, it could not be said to have done all that was possible in order to ensure the prompt arrest and the speedy condemnation and punishment of indivi- duals who had broken, or who seemed likely to break the requirements of International Law as to not injuring foreign nations. Such a conclusion is really a Bedwctio ad absurdum, which demonstrates the unsoundness of the dogma virtually enounced by four of the Geneva Arbitrators — the doctrine that in inquiring whether a State is, or is not, chargeable with culpable fault or negligence for not having pre- vented certain acts by individuals, no regard what- ever is to be paid to the system of Criminal process which, and which alone, is recognized and permitted by the fundamental institutions of that State. Of course, I do not mean to say that a State is to obtain international impunity, if its system of Criminal pro- 336 FIE8T PLATFOEM cess is so grossly defective, or if it is worked by such notoriously dishonest or inefficient functionaries, as to make proceedings before its tribunals mere costly and mischievous farces. To quote again from Sir Roundell Palmer's speech on the Greek Massacre*, a State is bound to have " a bond fide settled government, capable of repressing violence, outrage, and crime in that manner, and in that degree, in which human governments in civilized countries ordinarily are ca- pable of discharging those functions." But a free constitutional State cannot be held bound to sacrifice for the convenience of a foreign government prin- ciples of the character and value, which Englishmen and their kinsmen in the United States of America ascribe to the principle of Trial by Jury, to the principle that men are not to be convicted except upon lawful evidence, and to the principle that officers of the executive government cannot defend them- selves from liability for acts of force which they cannot prove to have been lawful, by merely showing that they were acting in obedience to their superiors in the executive department of the government of the State t. * See supra, p. 307, n. living under a German mo- t Professor Lieber's work on narchy, and of living in the Civil Liberty and Self-Govern- Anglo-American Common- ment (p. 91) deserves to be wealtb. But this principle referred to for its exposition of undoubtedly fetters materially the immense practical value of the power of a government to this maxim as a safeguard of prevent infractions of Law by Constitutional Freedom. Lieber arresting merely suspected of- had practical experience of the fenders without risk to the of- difference in this respect of ficials who execute the arrest. OF INTERNATIONAL LAW. 337 359. Indeed the advocates of the doctrine that a State's responsibility for the acts of individuals is in no way affected by the limits which its constitution places on the arbitrary action of its executive ofl&cers, do not shrink from asserting that a State is re- sponsible for the verdicts of its Juries in State Trials, when Foreign Governments are interested in the result of such proceedings. M. Bluntschli, for in- stance, not only requires that the substantive criminal laws of a State shall embrace all offences against foreign governments, but he maintains that the State, in order to escape international responsibility, must exercise an amount of interference with the formation and with the behaviour of its Juries, which would be regarded as intolerable in any country of ancient freedom*. Liability of a State for verdicts of ifa Juries asserted by some Publicists. Bluntsehli's doctrines on the subject. * This eminent Jurist ap- jparently recognizes the duty of a foreign government to ac- quiesce in the acquittal of a Defendant in a political trial ; but he adds reservations and provisoes which give to his chapter on the subject a very different aspect. To prevent the possibility of misrepresen- tation, however unintentional, I quote the whole passage. It wiU be found at pp. 264, 265 of Laboulaye's translation, edi- tion of 1875 :— " Lorsque les lois penales d'un Etat ne permettent pas de fournir une satisfaction suffi- sante, la partie lesee peut rendre I'etat direetement res- ponsable.. " Les crimes ou deUts sont punis conformement aux lois pdnales du pays ou ils ont et^ commis. Le pouvoir executif de ce pays n'a pas dans la r^gle le droit de s'immiscer dans I'administration de la justice. Les tribunaux criminels ou correctionnels ordinaires de- vront done eonnaitre de tons les crimes ou delits qui constituent une infraction au droit inter- national, k moius que les lois ne prescrivent une autre mode de proceder. Le gouvemement etranger ne peut pas exiger qu'on suspende en sa faveur le cours regulier de la justice, et U doit se declarer satisfait, meme si I'accuse est acquitte ou est condamne a une peine infe- 338 PIRST PLATPOEM InadmisBible extremes. 360. We may consider that when a State is charged with actionable neglect, in not having provided itself rieure a celle qu'il estimait devoir etre appliquee. Cepen- dant on suppose toujours dans ce cas : — "(a) Que les lois du pays sont en harmonie avec les prinoipes du droit international, et punis- sent les particuliers qui violent le droit des gens ou amenent la guerre. Si la legislation du pays ne contient pas de dis- positions sur la matiere, en d'autres termes, si elle ne re- connait et ne respeote pas le droit international, les autres etats auront pleinement le droit d'exiger que les lois du pays soient modiflees et raises en harmonie avec les principes intemationaux. Note du Mar- quis de Moustier, ministre des affaires etrang^res de Erance, du 10 decembre 1868, dans le conflit greco-turc (ArcMv, 3646) : — ' Un etat ne saurait s'affranchir d'une obligation de droit des gens, par ce motif qu'elle n'aura pas ete prevue par sa legislation interieure. En pareil cas, la voie est toute tracee ; le moyen de rem^dier au mal, c'est de combler la laoune en deoretant les mesures legislatives necessaires.' Ce remede n'est sufflsant que pour I'avenir, non pour le passe. « (6) L'^tat doit veiUer k ce que les tribunaux criminels ap- pliquent les lois destinees a proteger le droit international. Le fait que I'accuse aura ete liherS ou condamne d une peine leg^re, arrUe toutes les pour- suites qui pourraient itre subse- quemment dirigees contre celui-d, mais ne degage pas la responsa- bilite de Tetat. II y aura con- nivence entre I'etat et le cou- pable, si Ton constate qui les juges ou les jures se sont laisse entrainer par la passion politi- que ou la haine de I'etranger. V administration de la justice est une des branches de I'admi- nistration de I'etat, et ce dernier est r.esponsable des actes de ses tribunaux. Ne pas rendre la justice ou la rendre meil, c'est violer, dans les deux cas, les prinoipes du droit international, et I'etat peut dtre rendu res- ponsable de cette violation. Les tribunaux doivent done agir, dans les affaires de ce genre, avec les plus grandes precautions et la plus entiere impartialite ; il sera prudent de faire en sorte que les tribu- naux appeles k se prononcer offrent, par leur connaissance du droit international et I'honora- bilite de leurs membres, des garanties toutes speciales ; on devra tout au moins les rendre attentifs k la gravity de la mission qu'ils ont a remplir, les OF INTEENATIONAL LAW. 339 with a system of Criminal Process adequate to pre- vent its individual subjects from injuring other States, there are two opposite extremes as to the methods of Two inadmis- testing its conduct, neither of which is admissible. '^^' '^'™"""' 361. (1 ) The complaining State has no right wholly The extreme to ignore the character and the details of the Defen- ignoring^ dant State's system of Process. Prtl^"" °^ 362. (2) The Defendant State has no right to The opposite excuse itself summarily by reason of defaults in its aUowkrg°a criminal Process, if those defaults are gross, grievous, itstif by th^ and easily remediable. wthowetr 363. Still we are left in search of a standard of a Kssary still State's "due diligence" in this respect; and here *lidard for again we must have recourse to our old analogical ■'^hethfr a line of argument, to be drawn from the conduct of d^'dm'en^'^ the ideal Paterfamilias of the Romans*. astoproTiding ■^ itself with a 364. We must, however, take care not to be P'"°p^'' ^y^*^™ of process. misled by the wording of our analogical test. The The word use of the term Paterfamilias is apt to suggest the Paterfamilias erroneous idea that the government of every civilized Sptive. State has necessarily the ample power over all who are members or subjects of that State, which the old Roman head of a household possessed over all the other members of that household. This is a fallacy which we have already dealt with. It is probably engager h. s'entendre prealable- * He is ttus described in ment avec le pouvoir executif, the 'Digest': — "Homodiligens et leur faire remarquer qu'ils et studiosus paterfamilias, cujus peuvent compromettre leur personam incredibile est in patrie par une decision prise a aliquo facile errasse." — Lib. la leg^re."— Bluntschli, p. 264. xxii. Tit. 3. sec. 25. z 2 340 FIEST PLATFOEM with the design of avoiding this fallacious suggestion that modern Statesmen and Jurists, when they are applying these parts of Roman Law to International questions, translate Paterfamilias by the term " Man Proper idea of of business." This is, indeed, the proper way in the managing i-i i-iz-i pci i'i committee, which to think of the government of a State — to thmk which is „ . T • 1 1 • j.n analogous to 01 it as Corresponding with the managing man, or tne mentofa managing men of business, in a great firm. The state " o ii i conduct of the moral reasons for which it may be justmable and necessary to engage in War. With regard to the general principles, on which war should be conducted, our primary authority may be found in the maxim Montesquieu's which Montcsquieu considers to be the natural foun- dation of International Law. That maxim has been already cited, and partly discussedf. The branch of it that bears on the present portion of our subject, declares that " Nations ought to do each other as little harm in war as possible, without prejudice to their own true interests." "True inter- 386. Now the " Truc Interest " of a State engaged BeUigerent in morally lawful warfare must be to obtain one or both of the undermentioned two objects : — 1st. Safeguard against a wrong ; 2nd. Redress for a wrong. Every deed of destruction or of damage to person or property, and, generally speaking, every act of harm whatever to an enemy, which does not directly and substantially tend to obtain one of the above- mentioned objects, is blamable under Montesquieu's * See supra, pp. 44-48, and dans la paix le plus de Men, et notes. dans la guerre le moins de t See p. 35, sitpm. I re- mal qu'il est possible sans peat Montesquieu's -words : — nuire k leurs veritables in- " Le droit des gens est naturel- terets." — De VEsprit des Lois, lament fonde sur ce principe, 1. 1. c, 3. que les diverses nations doivent State. OF INTEENATIONAL LAW. 365 maxim, and is contrary to the principles of Interna- tional Law. 387. I wish to draw particular attention to the Suoh injuries Y.1111T i?i • ^ to aji enemy postulate that belhgerent acts oi harm must, m order only lawful as to be internationally lawful, be acts that directly and substantially substantially tend to effectuate one of the lawful pur- n°^g°inter- poses of the war. Without this limitation almost EeUigerent every kind of cruelty and destruction would be per- them" missible. Any and every act, that causes damage of importance property or of person to any member of a belligerent directness and State, may be said to weaken indirectly the State itself, and therefore to make it more easy for the other Belligerent to enforce the realization of its purposes in the war. But practically there is an im- portant distinction, and one that is generally (though not always) to be drawn without much difficulty. I will first illustrate my meaning by instancing clear cases. Everybody sees at once that, if War is ever illustration justifiable, it must be lawful in such War to attack, cases*. ^ to rout, to destroy or capture your enemy's army or fleet, or to besiege, storm, and occupy his fortresses. Such acts tend substantially and directly to compel him to desist from the wrongful course which caused the war, and to make peace on terms which will give you fair compensation and reasonable security. But to shoot a quiet citizen in a perfectly submissive enemy's town, or to burn an inoffensive peasant's crops and homestead in a tranquil district, which had not been, and was not likely to be, the scene of any military operations, would be universally regarded as an act of wanton and lawless barbarity. It is of 366 PIEST PLATPOEM Occasional difficulty of applying the test does not disprove its general soundness. Further exa- mination of Jural meaning of word " War." course possible that the citizen or the peasant might at some time join his comitry's forces, unless prevented by the shooting or the starvation inflicted on him. It is probable that, if spared, he might pay taxes at some time to his country, and so recruit its financial power. It is indisputable that a numerous population of citizens and peasants has much to do with a State's strength, and that whatever diminishes that popula- tion must pro tanto weaken the State and render it easier to conquer. But the influence of such deeds on the main course of the War is indirect and un- substantial, and therefore cannot be justified by a condition of Belligerency. 388. Unquestionably, cases may be easily imagined, and unfortunately cases do sometimes occur, in which it is hard to draw the line ; but so in municipal law it is sometimes very hard to say whether the damage which a plaintiff proves is substantial and direct, or whether it is indirect and too vague or slight for the law to notice. Yet the general test of Directness and Substantiality is found to work reasonably well for all practical purposes in Municipal Jurisprudence; and so it will in International Jurisprudence, if it is care- fully and honestly applied. 389. It will now be useful to revert to the meaning of the word " War," as understood in International Jurisprudence. We have already accepted generally Mr. Dudley's Field's definition of " War," as signi- fying " a hostile contest with arms between two or more States, or communities claiming sovereign rights." It is necessary now to consider whether OP INTEENATIONAL LAW. 367 any, and, if any, what kind of restraints are imposed by International Law on the Belligerents, as to the persons who are actually to wage " the hostile con- test," as to the means of damage which they may employ, and as to the persons and things that are lawfully liable to undergo the direct violences of Warfare. 390, Most writers concur in stating that, by the Harshness of . ° ' -^ Old Strict old strict theory, " a state of War puts all the sub- theories of jects of the one nation in a state of hostihty with those of the other"*. And " as it was also a received rule that the persons and goods of my enemy belong to me if I can seize them, there was no end to the amount of suffering which might be inflicted on the innocent inhabitants of a country within the regular [i.e. without exceeding the lawful] operations of War"t. VattelJ lays down broadly two general principles, one of which is that " Tous les sujets de deux etats, qui se font la guerre, sont ennemis." He proceeds to say that " Quand le Conducteur de I'Etat, le Souve- rain, declare la guerre a un autre Souverain, on en- tend que la nation entiere declare la guerre a une autre nation. Car le Souverain represente la nation, et agit au nom de la societe entiere; et les nations n'ont affaire les unes aux autres qu'en corps, dans leur qualite de nations, Ces deux nations sont done ennemies, et * Xent, vol. i. p. 105. tical mitigation of the old t Woolsey, p. 199. war-tlieories in many impor- X Lib. iii. ch. v. sect. 70. tant respects ; but lie fully ad- Vattel gives many sage and mits them as primary rules. humane reasons for the prac- 368 PIEST PLATFOEM Such theories, if fully worked out, "would lead to mon- strous conse- quences. Extreme views adopted by a few PubUoists. tous les sujets de Tune sont ennemis de tons les sujets de I'autre." Another principle which he enunciates is that " Des que Ton a determine exactement qui sont les ennemis, il est aise de connaitre quelles sont les choses appartenantes a I'ennemi {res ho'stiles). Nous avons fait voir que non seulement le Souverain avec qui on a la guerre, est ennemi, mais aussi sa nation entiere, jusqu'aux femmes et aux enfans ; tout ce qui appar- tient a cette nation, a I'Etat, au Souverain, aux sujets de tout age et de tout sexe, tout cela, dis-je, est done au nombre des choses appartenantes a I'ennemi "*. 391. The inference from these principles, if fully worked out, would be, that Lord Bacon was mistaken in saying that " Wars are no massacres and confu- sions, but the highest trials of right." Indeed some Publicists have gone the length of maintaining that every thing in War is lawful against an enemy as suchf. But these assertions are regarded as the * Lib. iii. ch. v. sect. 72. t See Bynkerslioek, as cited and confuted by PhUlimore, vol. iii. p. 70. Mr. Wheaton, at the commencement of the second chapter, the 4th part of his ' Elements du Droit Inter- national,' says, " En general on pent etablir que les droits de la guerre relativement k I'ennemi doivent se mesurer par le but de la guerre. Pour arriver a. ce but, et jusqu'ti ce qu'il Fait atteint, le beUigerant a, strictement parlant, le droit d'employer tous les moyens qui sont en son pouvoir. Nous avons deja vu que I'usage de I'ancien monde, et meme 1' opi- nion de quelques publioistes modernes, ne font pas de dis- tinction quant aux moyens a employer pour cet efFet ; meme des juriscousultes com- me Bynkershoek et Wolf, qui vivaient dans les pays les plus savants et les plus civilises de I'Europe au commencement du. dix-huitieme si^cle, soutien- nent le large principe que tout OP intbenatiojstal law. 369 paradoxes of individuals; and (with the rare excep- tions which they make) modern Publicists concur in Growth of recognizing a body of Secondary laws of War, which Laws of War, have grown up, and which have been adopted by all ?Sry? ^^^ civilized nations, the effect of which is materially to qualify and limit those Primary principles of a condition of Belligerency, which have been first re- ferred to. 392. Indeed, if we look back to the great nation TheBomana of antiquity to which civilized mankind is so largely warfareTa indebted for the foundations and the main rules of vSLl?^''^''' almost every department of Jurisprudence, we shall find that the Romans were far from regarding War as a condition of licensed promiscuous violence to be prac- tised by all or any of the members of one Belligerent Community against all or any of the members of the other Belligerent Community. In their judgment the Declaration of hostilities between nation and nation was not a remitter of the human beings on either side, as against each other, to a supposed natural state of pri- mitive savagery. On the contrary, War was consi- War regarded dered by their great Jurists to be itself an Institution j^gts as an'^ of Law, of the Jus Gentium, of the Law common to i^w, all civilized nations. The words of Hermogenianus ce qui est fait contre un en- quis par le vainqueur but sa uemi est legitime, que cet personne at sur sa propriete. ennemi peut gtre detruit quoi- Tels n'etaient pas cependant le que sans armes et sans defense ; sentiment et la pratique de qu'on peut employer contre I'Europe eolairee a Tepoque ou lui la fraude et meme le poison ; ils ecrivaient." et qu'un droit Ulimite est ac- 3 B 370 FIEST PLATFOEM Hermogenia- nus cited. Comment on this passage. Comment oon- tiuued. on this subject, as cited and adopted in the Digest*, are very remarkable and suggestive. 393. Hermogeniauus, speaking of the Jus Gen- timn, says, "Ex hoc jure gentium introduda bella, discretae gentes, regna condita, dominia distincta, agris termini positi, sedificia collocata, commercium, emptiones, venditiones, locationes, conductiones, obli- gationes institutse, exceptis quibusdam quae a jure civili introducta sunt." In considering this juridical account of the origin of War we must attend to the other institutions which Hermogeniauus groups with War, as products of the Jus Gentium. The greater part of them have regard to complete and practical recognition of the Rights of Property, and to the facilitation of commercial inter- course and industrial coope'ration among civilized mankind. The two which are placed with the Intro- duction of War at the head of the list, are of still more general importance. I mean the two institutions which were before the mind of the Roman Jurist when he wrote of " Discretes gentes and regna con- dita." 394. In the words " Begna condita " we have that branch of International Law which deals with the amount and kind of self-government necessary for a political community in order that it may be a Sove- reign State, and which also deals with its rights of Jurisdiction. The words " Discrete gentes" do not merely mean the territorial or ethnological division of nations one from another, but they involve the deter- * Book i. tit. 1, sect. 5. 0¥ INTEENATIONAL LAW. 371 mination and definition of a man's peculiar relations to the State of which he is a member — of the ties which bind him to his fatherland. As soon as there is a " Biscreta gens" and a " Conditum regnum" there is a State, a IloXec, a country, towards which arise the feelings and obligations of Allegiance, of Loyalty, of Patriotism. If we bear this in mind, we shall better comprehend Hermogenianus when he says, " Ex hoc jure gentium introduda Bella." The Roman Jurist is not speaking of all kinds of forcible strife and forcible seizure. He does not mean to say that fighting and slaughter and rapine did not exist in the world before the establish- ment of a general law of nations. The real import Eeai meaning of this celebrated text is as follows : — When States the Digest." had been formed, inasmuch as they acknowledged no common superior who should decide such differ- ences as arose between them, the only possible mode for an injured State, which could not obtain redress by persuasion, was to seek it by War — not, however, by War waged in any manner and with any amount of ferocity, but by War carried on according to such rules as the general opinion and consent of civilized mankind should from time to time ordain — that is to say, according to Jus Gentium, understood as the Law common to all civilized nations. And it is also to be remembered that the great Roman Jurists, in the spirit of the Stoical Philosophy, regarded the Jus Gentium as emanating from, and almost identical with the Jus Naturale, notwithstanding the admix- 2b2 372 PfEST PLATFOEM ture of some baser elements*. When War as waged between civilized States is thus understood, the text of Hermogenianus is seen to be full of truth and signi- ficance. If, on the contrary, it should be taken to mean that human beings never quarrelled and fought before there was a Jus Gentium, it would be self-evident nonsense. But when rightly received it serves to impress deeply on our minds the important principle that' War, as waged by civiHzed States, so far from being a condition of lawlessness, is in every respect subject to the requirements of Jurisprudence as to its inception, its conduct, and its terminationf . * See sv,;pra, p. 12, and notes. t I subjoin parts of the Commentary of Cujaoius on this celebrated text. They are to be found in the 7th volume of his works, p. 28 et seq. They wiU serve not only to ex- plain Hermogenianus, but also to show the opinions as to many of the most important laws of War held in the six- teenth century, as they were ex- pounded by the great commen- tator who is the special glory of French Jurisprudence. Cujacius says of the text of Hermogenianus (inter alia), that " In hac lege enumeran- tur multa alia introducta ex jure gentium, et primo loco Bella. Bella ergo justa et pia. Nihil enim hello injusto est k ratione natural! alienius * * * * * Ergo justa tantum bella sunt juris gentium. Et reote Jugurtha apud Sallus- tium se ab jure gentium pro- hiberi ait, cum populus Eoma- nus prohiheret helium gerere cum Hasdrubale [lege " Ad- herbale"] k quo Jugurtha sit lacessitus injuria, qua de caus4 Principes potissimum suscipi- unt bella. Justa bella sunt, quibus repetimus res nobis ablatas, vel debitas, vel earum rerum nomine pignora, quae alio nomine repetere aut repe- tita obtinere non possumus : quod non sit nobis cum iis, quibus beUum inferimus, com- munio legum. Et justa item sunt bella, quibus injurias et pecoata admissa in Eempubli- cam, imperium aut rem nos- tram vindioamus et persequi- mur. Quod alia ratione perse- OF INTEENATIONAL LAW. " 373 Some observations have been made in an earlier part of this vohime on the reasons v?hich there are for behaving that the Eoman Laws of war, as they were practised and studied during the ages of Rome's con- Eoman Laws tests with other nations for the mastery of the world, were much more copious and explicit than can now be gathered from the extant compilations of Roman Law, — compilations made from treatises written during or near to the age of the Antonines, when Rome had for centuries monopolized dominion over nearly all the civilized countries that were known to her, and when there was no longer any practical reason why her magistrates and lawyers should study and teach that " prcestabilem scientiam in foederibus, pactionibus, con- ditionibus populorum, regum, exterarum nationum, in universo denique belli jure et pads" which the states- men and Jurisconsults of the Republic had learned and expounded*. We can, however, discern enough qui non possumus, atque ita bella esse oportet, quae nos cogimur manu ac viribus agere, dioimus jus gentium introdux- quod non possumus jure ju- isse, sed etiam juste geri, non dicioque civili. Nam ubi acerb^, non ad internecionem, licet experiri jure civili, sane non Isesa fide, si quae datur in- non licet bello aut duello. Sed terim, vel post finitum beUum, ubi non licet jure civili et non ruptis foederibus, induciis, judicio, et sequitas intervenit pactionibus, non viola tislegatis, aliqua, san^ licet vi et armis. * non alio quam miUte. * » * * « * * " Sed et ut justa sint beUa " Jure gentium non tantum necesse est publico consensu captivi, sed etiam omnia quae decernere, vel imperio Princi- capimus ex hostibus nostra pis, in quern omne jus populus flunt." contulit. * * * * See page 89, swpm, and " Verum non tantum justa note. I will cite here one 374 PIEST PLATPOEM of the old Roman war-system to know that it repudi- ated license*, that it required that none should engage in battle except regularly enrolled soldiersf, that it forbade breach of faith towards an enemy, and the practice of treachery or assassination. But we have also proof that the Roman laws of War were in many matters harsh and cruel to an extent which modern civilization refuses to imitate. The conqueror had a right to take the lives of those whom he conquered, or, if he spared them, to make slaves of them. It was, indeed, customary to spare the lives of those who sub- mitted without resistance ; but this was regarded as a concession out of mercifulness, and not as a matter of right I . The same dreadful doom of slavery might be inflicted on the whole population of a conquered dis- trict or town. And it was even part of the Roman passage out of many that might Plutarch (Qusest. Eom. 39) be added to the citation given cited in Mr. Holden's notes, there from Cicero's speech J See the passage in Csesar, ' Pro Balbo,' to prove the ex- B. G. ii. 32 : " Csesar respon- istence and the copiousness of det Aduaticissemagisconsuetn- the Eoman war-code. Cicero, dine sua quam merito eorum in the De Offioiis, iii. 29. civitatem conservaturum, si 108, says that in respect of a prius quam aries murum atti- '' Justus et legitimus Tiostis gisset, se dedidissent." There [such as Carthagewas to Eome] is, on the other hand, express et totum Jus fetiale et midta sunt authority to show that the jura communia." slaughter in cold blood of those * Grotius (Prolegomena, 26) who had previously been ad- " Yeteres Eomani, ut mitted to surrender, was a Varro notabat, bella tard^ et breach of the laws of "War. nulla licentia suscipiebant." See Sallust de Pell. Jugurth. t See Cicero, De Ofllciis, e. 96. xi. 36, 37, and the passage from OP INTERNATIONAL LAW. 375 law that commoratit foreigners, who in time of peace had come to a country between which and their own country a war afterwards broke out, were hable to be seized and made slaves*. With respect to property, all the goods and chattels of any member of the popu- lation became liable to seizure by any member of the hostile community. The immovable property of the conquered passed to the conquering State ; and the conquering State was also considered to acquire pro- perty over booty taken in military operationsf. 395. I have already stated that it is not purposed influences that to include in this volume a regular history of the pro- the old Rules gress of International Law. A general statement here will suffice, that many causes, different in their natures but concurrent in their effect, have materially mitigated the sternness of this old primitive war code. The diffusion of Christianity has been the most im- portant of these causes ; although it must not be forgotten that the prevalence of hostilities on account off differences in religious opinion among Christians has too often caused warfare to be' waged with more ferocity and faithlessness than had been usually exhi- * " In pace qui pervenerunt tur, prseter res soli, quse occu- ad alteros, si beUum su'bit6 patse ipsius popiili belligerentis exarsisset, eorum servi effici- proprise fiunt, sicut et prseda untur, apud quos jam hostes coILeeta." 'Warnkoenig Inst. suo facto deprehenduntiir." Jur. Eom. sect. 324, citing Dig. xlix. tit. XV. s. 12. Digest, sect. 17. 1. 2. l..]i. t. t " Ess hostiles quoque oe- p. 5 ; sect. 7, p. 71 ; sect. D. ib. cupantis flunt. Belli tempore p. 13 ; D. 48. 13 (ad leg. Jul. res, quae hostium sunt, nullius Peculat.), pp. 2, 3 ; D. 49, 15 esse finguntur, et cuique civi- (de Captivis et Postlim.). um occupatio earum permitti- 376 PIEST PLATPOEM bited in merely secular strife, and thereby tended to embitter the general character of belligerency. Other civilizing influences have materially humanized Euro- pean nations, and their descendants in the Nevr World, during the last three centuries ; and the softening process has extended to the usages of war. In some matters (and those of considerable importance) en- lightened self-interest has aided in making statesmen and generals inchne to merciful innovations. Many Mitigations of tliese mitigations (probably all) were at first de- of Comity, be- signed and regarded as personal indulgences and come matters . , .. n ■ i , -t-.i ,i of Eight. exceptional remissions ot right. i3y degrees they grew to be so frequent as to be considered and expected as customary courtesies ; and, as Sir R. Phillimore has observed*, that which has taken place so extensively in other departments of International Jurisprudence, is to be observed as to the laws of Warfare also. The practice and usage of nations is perpetually trans- planting the concessions of Comity into the domain of Growth of Right. Hence has arisen what is sometimes termed Lawsof''war. a Secondary Code of the Laws of War. But before A state not auv particular State can be regarded as bound bv anv boundbythem „ , , . J J unless it has of thcsc sccoudaiy or customary rules it must be proved them. to have assented, either expressly or by implication, to such rule. 396. We shall have to consider these topics in detail when we deal with the laws of War under sepa- rate heads, discussing them, first, as they affect the Two opposite Belligerents themselves, and, secondly, as they affect extreme Theo- - - , . . riestobe JNeutraJs. Jbor the present it is enough to state that avoided. * Vol. iii. p. 72. OF INTERNATIONAL LAW. "377 there are two extreme views as to the conduct of Warfare, each of which is fallacious. One of these is First PaUacy, the theory of Bynkershoek and Wolff*, that War is remitter to 1... /. T T • 1 • 1 • 1 11 general lawless a condition oi licensed violence, in which all means, violence. fair or foul, of injuring any enemy may be taken. I should not have thought it necessary to repeat a repu- diation of this savagery, were it not for the contemp- tuous lawlessness which some Statesmen and some writers have lately avowed as to the obligation of Treaties! . They who can thus trample on the most ancient and sacred principle of faith between nation and nation, are not unlikely to show equal cynicism as to any other international restraint upon violence towards an enemy, if such violence seems likely to subserve their vindictiveness or their rapacity. The other and the opposite error is one far more plausible in appearance ; and it is one which now finds favour with many well-meaning theorists, besides the politicians of the great military States, who advocate it out of more astute motives. I mean the doctrine Second Fai- that War is a relation between Government and is a mere duel Government only — not between people and people, or Governments. nation or nation, or between State and State, except so far as regards the actual executive rulers of the States and the professional military and naval fighting- men whom those executive rulers respectively employ. The other persons who make up each State have, ac- cording to this theory, nothing to do with the war. They are not mutual enemies as men, they are not such even as citizens ; they only become such when * See p. 368, su^rd. f See sujird, p. 40 et seq. 378 PIEST PLATPOEM Contradicted by the Fact that a State is a Moral Agent, they take position in the regularly organized forces of each State. According to this view a War is nothing more than a kind of duel, in which the Governments are to be looked on as the combatants, and their fleets and armies as the weapons employed in the con- flict*. All this is diametrically contrary to the principles of Ethics and Jurisprudence already explained, according to which a State is to be regarded as a Moral Agent, being a Community of human beings, each of whom is a moral agent, and who by combining into a State acquire additionally the attributeof joint moral right and joint moral responsibilityf . To quote again the words of Chancellor Kent, " States or bodies politic are to be considered as moral persons having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with * M. Calvo (Le Droit In- ternational, torn. ii. p. 109) has well exposed this theory : — ■ " C'est tomber dans Fextrgme oppose que de soutenir, comme le fait Pinheiro-Perreira, que la guerre n'a jamais lieu entre nations, mais seulement de gouyernement k gouvernement; et que Ton ne doit considerer comme parties belligerentes qu'un certain nombre d'indivi- dus assooie's aux projets de ceux qui ont engage la lutte. C'est ]A en effet une distinction es- sentiellement illogique. En principe, il y a solidarite ab- solue entre le gouvernement et la nation; et de nos jours le droit public confond d'une maniere indivisible I'Etat avec ceux dont il est rorgane et le repr^sentant par une delt^ga- tion plus on moins directe. En resume, nous disons qu' a nos yeuxlesactesgouvernementaux reflechissent necessairement sur la nation tout entiere, et qu'il serait aussi contraire k I'his- toire qu'^ la raison d'admettre que les guerres pussent ne pas traduire I'esprit national, c'est- a-dire I'esprit du pcuple qui les fait." t See suprd, p. 23. OP INTEENATIONAL LAW. 379 him into the service of the community the same binding law of morahty and religion which ought to control his conduct in private life "*. 397. This doctrine is not more illogical than it is This theory inexpedient, according to the true principle of having toround muif^ regard to the interest of all concerned. It is cer- '"''*'"*"■ tainly very plausible, and much favour is naturally at first felt towards its advocates when they assert that they are advocating a limitation of Warfare, the effect of which would be to exempt absolutely the persons and the property of all private individuals from violence and spoliation. But a little reflection will point out it would esta- : -. . . _ - . -, blish the per- to US that the recognition oi such a system would manent main- infallibly lead to such an increase in the permanent enormous military and naval establishments of every State, as SishmJnts.* would make the burdens of taxation, even in peace- time, worse than the evils caused by the occasional outbreak of hostilities conducted as has hitherto been customary. It is to be remembered that this sug- gested new scheme of War, while it offers to private individuals immunity from the sufferings caused by * Kent's ' Commentaries,' pie, and acts for the whole vol. i. p. 3. The same great society. This is the theory in Jurist, at p. 66, expressly says, all Governments ; and the best " Every man is, in judgment of writers on the law of nations law, a party to the acts of his concur in the doctrine that own' Government ; and a war when the Sovereign of a State between the Governments of declares War against another two nations is a war between all Sovereign, it implies that the the individuals of the one, whole nation declares War, and and all the individuals of that all the subjects of the one which the other is composed, are enemies to all the subjects Government is the representa- of the other." tive of the wiU of all the peo- 380 FIEST PLATFOEM Mischief of overgrown permaneDt military esta- blishments. Vattel's com- ments on this. hostilities, inevitably requires from them total absti- nence from cooperation in the defence of their comitry. Trained troops cannot be extemporized ; and this becomes more and more true in propor- tion to the more and more scientific and elaborate character which the art of destruction and the implements of destruction are novr continually acqui- ring. A State's hopes of safety would depend on the amount of regularly disciplined forces and of costly war material which it constantly kept on foot. We must here consider, besides the financial oppressive- ness of such a policy, the manifold mischief of with- drawing a large proportion of a country's population from productive employment, and of imbuing them with the habits of the professional soldier. Vattel pointed out these evils more than a century ago, as they then had begun to display themselves in Europe in consequence of the pride and ambition of the French Court, in the increase of the Trench standing armies, and in the necessity which was consequently imposed on other Continental Powers of maintaining troops in peace-time on a then unprecedented scale*. But * " Quelle ctarge pour un ifitat ! Autrefois, et sans re- monter plus haut que le siecle dernier, on ne manquait guere de stipuler dans les traites, que I'on desarmerait de part et d'autre, qu'on licenoierait lea troupes. Si en pleine paix un prince voulait en entretenir un grand nomtre sur pied, ses voisins prenaient leurs mesures. formait des ligues contre lui, et I'obligeaient h, de'sarmer. Pour- quoi cette coutume salutaire ne s'est elle pas conservee ? Ces armeesnombreuses, entretenues en tout temps, privent la terre de sea cultivateurs, arretent la population, et ne peuvent servir qu'^ opprimer la liberty du peuple qui les nourrit." (Livre iii. ch. iii. sect. 50.) OF INTEENATIONAL LAW. 38 L where States in Vattel's time kept up soldiers by Suoh a system hundreds, they now maintain them by thousands ; uie wofid to ^ and if the proposed new system became general, the tarj'^mona'r- ^' increase would be in myriads and in millions. States °^^' of small or of moderate resources would vainly engage in rivalry of armaments with powerful empires ; and the ultimate effect would be, that the great military monarchies would wholly domineer over the rest of Europe. We should also bear in mind what a tempta- tion to wars of ambition and aggrandizement must be created by the constant possession and contempla- tion of huge armies in perfect readiness for action, av^ naturally eager for opportunities of distinction : — " How oft the sight Of means to do ill deeds makes ill deeds done !" Let not sanguine Liberals suppose that the expected progress of Republicanism will put an end to warfare of this description. Those who study history and watch mankind know well that feelings of national vanity and vindictiveness and of adulation towards martial glory are by no means limited to Kings. They are to be found in " the fierce democracy" as Democracies well as in the Courts and Cabinets of sceptred Sove- ^gresaTT reigns. Nay, with the increased action of the ten- '"'"^®- dency which has begun already to show itself in communities where the right of suffrage is universal or nearly so, of the tendency to throw the burdens of taxation wholly on the classes that possess land or other capital, the proletarian majorities are likely to grow more and more ready to push international jealousies and quarrels to the worst extreme, and to 382 HEST PLATFOEM By whom and how this new Theory was introduced. By Napoleon I, when in the Zenith of his military triumphs and ambitious Address of M. Portalis. vote for war-measures, of which they will enjoy the excitement and the expected triumphs, while they reckon that the cost will fall upon other members of the community. 398. It is worth while to look to who were the originators of this new theory, and to the manner in which it was first promulgated. It was introduced to public notice by the first Emperor Napoleon and his Ministers, at a time when the soldiery of Imperial France was enormous in number, perfect in organiza- tion and discipline, naturally proud of its victories, and justly confident in its own valour and in the genius of its great commander. It was paraded also at a time when Prance, notwithstanding her victories and her preponderant military power on land, was suff'ering grievously in consequence of the blows dealt to her mercantile marine as well as to her regular war-ships by the British navy. Perhaps, too, even then the prescient eye of Talleyrand foresaw the altered charac- ter of the resistance which French armies were likely to encounter, should they have to contend against the hostile populations of the countries which they invaded, and not merely against the professional troops that were levied by those countries' Sovereigns. In 1804 M. Portalis, as President of Napoleon's newly consti- tuted Prize-Court, delivered an inaugural address, in which he stated that " It is the relation of things, not of persons, which constitutes War. It is a relation of State to State, and not of individual to individual. As between two or more belhgerent nations the par- ticular persons who compose those nations are enemies OP INTEENATIONAL LAW. 383 only by accident ; they are not so as men ; they are not so even as citizens : they are such only as soldiers." Talleyrand, in a despatch addressed to the Emperor TaUeyrand's _ Despatch in Napoleon in 1806, said in the same spirit, "Three isoe. centuries of civilization have given to Europe a law of nations for which, according to the expression of an illustrious writer, human nature cannot be suffici- ently grateful. This law is founded on the principle, that nations ought to do to one another in peace the most good, and in war the least evil possible. Ac- cording to the maxim that War is not a relation between a man and another, but between State and State, in which private persons are only accidental enemies, not such as men, nor even as members or subjects of the State, but simply as its defenders, the law of nations does not allow that the rights of War, and of conquest thence derived, should be applied to peaceable, unarmed citizens, to private dwellings and properties, to the merchandise of commerce, to the magazines which contain it, to the vehicles which transport it, to unarmed ships which convey it on streams and seas — in one word, to the person and the goods of private individuals"*. 399. It will be observed that Talleyrand, in this TaUeyrand's manifesto of the International Rights of War, pre- renoetoMon- tended to support his thesis by the high authority of ™^'"^"' Montesquieu. But while he quoted so much of Mon- tesquieu's maxim as requires that nations shall do * Cited in a note by Presi- (p. 226 note), who took it from dent Woolsey at p. 225 of his the ' Moniteur ' of 5th Deo. work. He takes it from Heffter 1806. 384 FIEST PLATFOEM He suppresses each other as little harm in War as possible, he care- an importaoit pai-tofMon- fullj Omitted the all-important qualifying clause, by- maxim, which Montesquieu directs this abstinence from in- juring the enemy to be practised only so far as the State's own true interest permits*. Now (as has already been explained) the true interest of a State that undertakes war for just cause, is to make the enemy suffer so as to jegret the misconduct which brought the sufferings on him, and to make him con- sequently willing to purchase peace by giving com- pensation for past wrongs, and by giving security (if need be) against the repetition of similar wrongs in future. When a State is invaded and threatened with subjugation or dismemberment, the fact is still more obvious that its true interest is to weaken its adver- sary as much as possible. The real practical limita- tion which Montesquieu's maxim enforces, is (as we have already seen) the rule that the injuries done by one belligerent to another must be such as tell directly and substantially on the main purpose of the M'ar — and that they must not be mere acts of cruelty and plun- der, which cause very great misery to individuals, but exercise only an infinitesimal and precarious influence on the result of the armed struggle, betvpeen the antagonistic aggregates of human beings that con- stitute respectively the Belligerent States. * I repeat the words of le moins de mal, qu'il est pos- Montesquieu. " Le Droit des sible sans nuire a leurs verita- gens est naturellement fonde bles interets." — De I'Esprit des sur ce prinoipe, que les diveraes Lois, 1. i. ch. 3 ; and see pp. nations doivent dans la pais le 35, 364, svprd. plus de bien, et dans la guerre OP INTERNATIONAL LAW. 385 400. This, and no more than this, is the limit fixed Vattei's state- by Vattel : — " Tout revient a cette regie generale ; General Prin- tout le mal que Ton fait a I'ennemi sans necessite, toute fare, and of its hostilite, qui ne tend point a amener la victoire et la fin de la guerre, est une licence que la loi naturelle condamne"*. Chancellor Kent saysf, " The end of ChanceUor war is to procure by force the justice which cannot otherwise be obtained ; and the law of nations allows the means requisite to the end." "The persons and the property of the enemy may be attacked and captured, or destroyed, when necessary to procure reparation or security." I have already quoted the words of the great American Commentator which ex- pressly recognize the old principle that a state "of War puts all the subjects of the one nation in a state of hostility with the other." Chancellor Kent care- * Vattel, Livre iii. ch. ix. legitime ne donne un veritable sect. 172. He gives the same droit qu'aux seuls moyens ne- rule at the beginning of the cessaires pour obtenir cette fin ; 8th chapter of his 3rd book, tout ce qu'on fait au deli est He states there, that the ob- reprouve par la loi naturelle, ject of a just war is " de se vicieux et condamnable au procurer par la force, une jus- tribunal de la conscience. De tice que_ Ton ne pent obtenir Ik vient que le droit a tels ou autrement ; de contraindre un tels actes d'hostilite varie sui- injuste k reparer I'injure iejk vant les circonstanees. Ce qui faite, ou a donner des suretes est juste et parfaitement inno- contre celle dont on est menace cent dans une guerre, dans une de sa part. Des que la guerre situation partiouliere, ne I'est est declaree, on est done en pas toujours en d'autres occa- droit de faire contra I'ennemi sions ; le droit suit pas a pas le tout ce qui est necessaire pour besoin, I'exigence du cas ; il atteindre a cette fin, pour le n'en passe point les homes." mettre a la raison, pour obtenir f Vol. i. p. 99. de lui justice et surete. La fin 2 C 386 FIEST PLATFOEM Wheaton's. HautefeviiUe. fully explains (as do all other Pablicists, except, I believe, Bynkershoek and Wolf) that all wanton and unnecessary violence to person and property is illegal. Wheaton states as a general principle, that the rights of a Belligerent relatively to an enemy are commen- surate with the object of the war, and that, strictly speaking, the Belligerent has, in order to arrive at that object, a right to employ all means in his power, but that public opinion and the feelings of civilized mankind, influenced and enlightened by the humane reasoiiings of Grotius, Vattel, and other Publicists, have introduced many limits to the practical exercise of that right*. M. Hautefeuille discusses this subject very fully in the first volume of his treatise on the rights and duties of Neutralsf. He says, " Le droit de la guerre a mon avis est effectivement de faire le plus de mal possible a I'ennemi afin de le forcer a demander la paix ; de le contraindre a accepter les conditions que Ton veut lui imposer." But he elsewhere points out that this general primary right is " soumis a un grand nombre de restrictions par la loi natureUe elle-meme, et surtout par le droit des gens secondaire." - These Secondary Laws of War are " non ecrites, mais adop- tees par tons les peuples." In a passage (which we shall have occasion, in another part of this treatise, to consider more in detail) he comments on the difference between the customary law of War as to the seizure of private property on shore, and as to * Wheaton's ' Elements,' t P- 310. torn. ii. p. 1 et seq. OE INTEENATIONAL LAW. 387 the seizure of private property at sea. And he says of this difference, that " L'usage suivi sur mer me parait le seul conforme a la loi primitive, d'apres laquelle le belligerent a le droit de nuire a son ennemi par tous les moyens directs qui sont en son pouvoir." In his opinion it has not been merely out of feelings of humanity, but out of regard to their own self- interest also, that the milder customary law as to private property on land has been introduced, ac- cording to which it is generally exempt from seizure and confiscation. I shall have occasion to cite his reasonings on this subject when we deal specifi- cally with the rights of Belligerents as against each other. General Halleck says*, " The law of nature gives to General Hal- a belligerent nation the right to use such force as may be necessary, in order to obtain the object for which the war was undertaken. Beyond this, the use of force is unlawful : this necessity forms the limit of hostility between subjects of the Belligerent States. They, therefore, have no right to take the lives of non-combatants, or of such public enemies as they can subdue by other means, nor to inflict any injuries on them or their property, unless the same should be necessary for the object of the war" When we read Question, this and similar passages, the question recurs again test of the necessity wHoh and again, " What is to be the test whether any justifies acts of particular measure of violence is or is not necessary V I repeat the answer already suggested in this chapter : — " A measure of violence towards the enemy is neces- * P. 412. 2c2 388 FIEST PLATFOEM Stanton's Aphorism. Sir B. Philli- more's opi- nion. The necessity must often depend on tlie circumstances of each case. sary then, and then only, when less severe measures are ineflfectual, and when the proposed measure tends directly and substantially to effectuate the just purpose of the war. When acts come within this category, they come within the rule very pithily for- mulated by Mr. Stanton, the American War-minister during the late Civil War. " No aphorism is more universally received than that ' the sole object of a just war is to make the enemy feel the evils of his injustice, and by his sufferings amend his ways. He must therefore be attacked in the most vulnerable quarter ' "*. 401. I will conclude this list of authorities with a very comprehensive and clear statement by Sir R. Phillimore, of the nature and object of the secondary or limitary rules of War -. — " The great principle on which all these rules are framed is that of, on the one hand, compelling the enemy to do justice as speedily as possible, and, on the other hand, of abstaining from the infliction of all injuries, both upon the subjects of the enemy and upon the Government and subjects of third Powers, which do not cer- tainli/ and clearly tend to the accomplishment of this objecf't. 402. As is remarked by Vattel in the passage last quoted from him, the necessity of particular measures must chiefly depend on the circumstances of each case, and the lawfulness of particular measures must, there- * Report of Secretary at War, Dec. 1, 1862, cited in Draper's ' History of the Ame- rican Civil War,' vol. ii. p. 581. t Vol. iii. p. 68. OF INTEENATIONAL LAW. 389 fore, vary from time to time; still there are some general rules which all civilized nations recognize. We shall have to consider these presently in detail. What we have hitherto chiefly attempted has been the investigation of fundamental principles, so as to make two negative propositions clear. The first of these is, that War is not a condition of licensed promiscuous violence. The second is, that War is much more than a duel between two Belli- gerent Governments. If these leading tenets are borne in mind, and if we understand aright Mon- tesquieu's maxim, that a State should do its enemies no more evil in war-time than the true interests of the State require, we shall have made much progress towards gaining a comprehensive and useful idea as to what War is, and as to what War ought to be. We shall also understand what War is not, and what War cannot be. 403. Even if it were possible to realize all the miti- Disguise Wai- gations of warfare that have ever been imagined. War i^Jhideous^' would continue to be what it is essentially — a hideous nlver should evil, cruel in itself and cruel in its consequences. It is kst'rfl'ort."* ** a mere common -place to pronounce that such a curse ought not to be let loose among mankind without great and grievous reason — and that no State ought . to have recourse to hostilities, so long as there is any reasonable probability of obtaining redress and secu- rity by pacific means. But, like many other common- places, these things are not the less true from being truisms, though they are apt on that account to be generally ignored and frequently forgotten. 390 FIEST PLATEOEM Utility of temperate statement of 1 griev- ances between nation and nation, and of honest dis- cussion. Reference to General Hal- leck. Good effects of moderation of the United States Go- vernment in discvissing the case of " The Caroline." The advice of the Wise Man as to how we should deal with a friend, from whom we believe onrselves to have sustained wrong, should be adopted by a State in its dealings with other States, even in cases where national prejudice is apt to be most fiery, "Ad- monish a friend ; it may be he hath not done it, that he do it no more. Admonish a friend; for many times it is a slander, and believe not every tale. Admo- nish thy neighbour before thou threaten him"*. Attention to this precautionary duty in dissensions between nations may prevent much misery to many. I will refer here to two Publicists of our own times, who not only teach the maxim, but give practical proofs of its beneficial operation. General Halleck says, " It not unfrequently happens that what is at first looked upon as an injury or an insult, is found, upon a more deliberate examination, to be a mistake rather than an act of malice, or one designed to give offence. Moreover the injury may result from the acts of inferior persons, which may not receive the approbation of their own Governments. A little moderation and delay, in such cases, may bring to the offended party a just satisfaction, whereas rash and precipitate measures often lead to the shedding of much innocent blood. The moderation of the Government of the United States, in the case of the burning of the American steamboat ' Caroline,' in 1837, by a British officer, led to an amicable adjust- ment of the difficulties arising from a violation of * Ecolesiasticus, xix. 13, 14, 17. OP INTEENATIONAL LAW. 391 neutral territory, and saved both countries from the disasters of a bloody war"*. Dr. Abdy also, in his edition of Kent's Commen- Reference to taries, so far as they apply to International Law, '^' ^' quotes the case of the ' Caroline.' He adds some His comments valuable comments on the case of ' The Creole ' of the irnited /■T 1 n T 1 • l^ ipji- 1 \i States and the (already reierred to m another part oi this volume) f, British Go- and the " furious storm of indignation" in the ute"c^Tof"^ Southern States of the Union against Great Britain, " ^i^* c)™°i«-" which threatened instant war, and in all human pro- bability would have caused it, had it not been for the friendly and courteous spirit in which the Ameri- can and British Governments carried on their commu- nications on the subject with each other. The " Tahiti aflfair," sometimes called the " Pritchard in- demnity question," between England and France, in Prudent eon- „- ■ Ti-i duct of Eng- 1 o44, deserves even more attention. In this trans- Ush and ,. ,1 . rp , p 1 • T i- i Trench States- action the menacing ettects ot popular indignation at men in the a supposed gross national insult, were averted by the affair."' fairness and the temperance with which one Govern- ment made its claim for redress, and by the readiness on the other side to enter into a calm investigation of all the circumstances of the case, and " to listen to reason and justice rather than to give way to national vanity." The English Publicist truly observes on these pattern cases of " The Caroline," " The Creole," and the "Pritchard Indemnity," that "Here we have three occasions on which, by the self-action of the parties concerned, by a cool and candid examina- * HaUeck, p. 290. t See swprd, p. 271, n. 392 FIEST PLATFOEM Mediation. tion of the subject of dispute, and by a gentle method of terminating differences, three of the greatest coun- tries in the world set examples of forbearance, that deserve to be recorded as precedents worthy of imi- tation"*. It frequently occurs that differences between two States are investigated with a view to pacific arrange- ment under the friendly mediation of a third State. Distinct from Mediation is a distinct thing from Arbitration. When Arbitration. _ ° the services of a Mediator are accepted, there is no undertaking, expressed or implied, on the part of the disputants that the recommendations of the Mediator will be adopted. The utmost to which they can be considered to pledge themselves is, that they will supply the Mediator with fair means for learning the real facts of the case, and the arguments on both sides — and that they will listen with respectful attention to the Mediator's advice, and to such reasons as he may give in support of it. Yet much good may be done, and much evil may be averted, by mediation. Argu- ments which are heard with suspicion and stubborn- ness, when urged by a rival or a supposed enemy, will often obtain deference, and will act upon the national AlSax;, when they come from a disinterested source, and from one having moral authority. More- over, as there is nothing in the process of mediation by which a State's power to do " what seems right in its own eyes," can be in the least degree diminished, many matters, which affect national pride or national vital interests, may be discussed before a Mediator, * Kent's ' International Law,' by Abdy, p. 172. Beneficial effects of Mediationf OE INTEENATIONAL LAW. 393 although there might be an unwillingness to make them topics for Arbitration. Count Calvo gives an instance of this in the settlement, in 1844, of long- standing disputes between Spain and Morocco, on account of the predatory attacks continually made by armed Morocco bands on the Spanish territory of Ceuta. The Governments of Trance and England suecessfui offered to act as Arbitrators ; but Spain refused ^anreXd to submit to the arbitration of strangers on a twM!n"spain matter which was clear, and which affected her ^'^'1^°™'=™- dignity and honour. The Cabinets of Paris and London then modified their proposal, and offered to act as Mediators. This was accepted ; and the result of the inquiries and discussions which ensued, was a settlement of all differences, between Morocco and Spain, and the reestablishment of friendly feelings, which endured for some time between them*. 404. A question has been mooted whether, when Are states disputes have arisen between two States which threaten proffer Medi- to cause a war, it is or is not a moral duty incumbent on other States to offer their mediation. Galianif and D'Hautefeuille | are of opinion that neutrals ought to avoid this interference in the affairs of others. Hiibner considers it to be the most important duty that nations in general can discharge : and the general current of modern authority is in favour of the propo- sition, that "It is the business of every nation that it is a moral has sufficient power and influence to make its voice to'^rartain^"" conditions. * Calvo, vol. i. p. 789. J Droits et devoirs des nations f Dd Doveri dei Principi neutres, tome i. tit. 5. sect. 1. Neutrali, o. 9. p. 162. 394 PIEST PLATPOEM heard, when there is a danger of peace being dis- turbed, to spare no trouble iu efforts to preserve that peace" *. Some PubHcists add the prudent qualifi- cation that " Much must depend upon the subject of dispute, the character of the disputants, and upon the position and authority of the State which tenders the good oflBce "f. Injudicious attempts at media- tion may do more harm than good. M. Calvo says truly that " Certaines mediations dans les circon- stances oil elles se produisent, peuvent assumer un caractere di prepotence, d'hostilite deguisee, blessant pour ceux a qui elles sont offertes"|. And certainly the task of peacemaker requires not only acknowleged integrity and strict impartiality, but also great tact and delicacy in its performance. International 405. Another mode of pacific settlement of Inter- Arbitration. ,■ 1 !• , ■ n ■ 1 ry ■ national disputes is the seemingly more etricacious process of Arbitration. The parties who submit their differences to arbitration are considered to bind them- selves by implication, even if not by express covenant, to obey and execute the award of their self-chosen tribunal on the matters brought before it, subject to certain exceptions, which will be presently mentioned. What Avbi- 406. When Sovereign States agree to settle their trators usually chosen. disputcs by Reference, they usually select the Head or chief executive officer of some other Sovereign State as their Arbitrator. It is common, when the matters in dispute are very important, to appoint more than * Be la Saisie des Bdtiments t Phillimore, sect. 4 ; and neutres, t. i. pt. i. chap. 2, see Halleok, p. 292. sect. 11. i Calvo, tome, i. p. 781. OP INTEENATIONAL LAW. 395 one Arbitrator. There is no jural reqnirenaent that Sovereign States shall be judged by their Peers — that is to say, by other Sovereign States acting through their chief executive officers. The gravest dissensions Arbitrations, of even the mightiest nations may be referred for ducted, settlement to individuals, vfhether Publicists, Lawyers, or persons not in any way professionally acquainted with jurisprudence. But the reference to Heads of States, or to such persons as the selected Heads of States may nominate, is most common and convenient. Sometimes the Treaty, or other instrument of submis- sion to Arbitration, specifies the rules and principles, or some of the rules and principles, according to which the inquiry is to be conducted and judgment pro- nounced. When no such instructions are provided, the Arbitrators proceed according to the rules of the Civil Law. Thus, it is their duty to act jointly, to discuss and deliberate in common, and in case of difference of opinion among them, the opinion of the majority is to prevail. In the case of an equality of votes the Reference becomes ineffectual, as the rule of the Roman Law, which empowers Arbitrators to call in an Umpire nominated by themselves, is not adopted in International Arbitrations*. 407. The party against whom an award is made Cases where is not bound to obey it, if the Arbitrators have ex- ^ repudiated, ceeded the powers given to them by the Instrument of submission, or if it has been procured by manifest fraud or corruption. Other reasons for refusing to acknowledge the validity of an award are given by * Calvo, 791. Heffter, p. 209. 396 FIRST PLATPOEM Exceptions allowed by Heffter. By Blunt- Bchli. By Calyo. some writers of eminence. According to HetTter, it may be repudiated for any of the following, among other, reasons : — a. if it has been made by Arbi- trators who have proved absolutely incapable; b. if the arbitrator, or the opposite party, has not acted with good faith ; c. if the parties, or one of them, have not been understood ; d. if the provisions of the award are absolutely contrary to the rules of justice, and consequently could not form the subject of a valid agreement to perform them*. Bluntschli ex- pressly says that the decision of a tribunal of arbi- tration may be considered a nullity if it is contrary to International Law. He, however, qualifies this by adding that it is not to be impeached under the pre- text that it is erroneous or contrary to equity. And he afterwards illustrates his meaning by saying that a Decision of Arbitrators cannot impose an obligation which the parties could not have established by a treatyf . Calvo, also, in his list of fatal objections to an award, includes the case of " lorsque sa teneur est absolument contraire aux regies de la justice, et ne pent des lors faire I'objet d'une transaction" | . Vattel says of Arbitration, that it is a method most reasonable and in perfect conformity with natural * "Si ses dispositions sont contraires d'une maniere abso- lue aux regies de la justice, et ne peuvent par conse'quent for- mer robjet d'une convention" (p. 210). Heffter explains this by a reference to Ms 83rd paragraph, whieb states that a Treaty cannot be binding if it directs things to be done which are contrary " ^ I'ordre moral du monde, et notamment aussi ^ la mission des Etats de con- tribuer an developpement de la liberte humaine." t Bluntschli, p. 273. t Tonre i. p. 787. OF INTEENATIONAL LAW. 397 law for terminating every difference which does not affect immediately the safety of a Nation*. 408. There has of late years been a growing desire Recent move- among the educated classes of all, or nearly all, civilized of intema- nations to make the principle of settling international tion. disputes by Arbitration generally recognized and carried into practice. Projects, indeed, for the per- oid projects manent establishment of European peace by means of pacific settle- tribunals of Reference have never been wanting since disputes, the times of Henry IV. of France, even if they cannot be traced to still earlier dates. But recently the Modem zeal subject has been taken up with unprecedented earnest- ness, and with an amount of Jural ability as well as of enlightened philanthropy, which deserve the respect even of those who think such theories impracticable. An unfair prejudice is sometimes created against the yjnfair pi-e- supporters of the International Arbitration principle ofitsoppo- by representing them as advocating this mode of reconciling adversaries in all possible kinds of dis- putes, including a nation's opposition to preposterous claims, which might be made on it solely for the sake of " trying the lottery of the law" on a grand scale, and of taking the chance of getting a verdict from a con- clave of sovereigns or statesmen strongly prejudiced against one party to the dispute, or from a tribunal of pedantic gownsmen, deficient in common sense and incapable of comprehending political causes and effects. But the chief advocates of the Arbitration Cases in which system freely admit that there are classes of cases biiUyoF'"^" to which it is ^ inappHcable. Aggressions and conceded.™ '^ * Liyre ii. ch. xviii. p. 329. 398 FIEST PLATFOEM Present dis- cussion as to Systems of International Arbitration. demands may be made on a nation which seriously menace its national honour and existence, A claim may be palpably, and even insolently, un- reasonable. No State with a due sense of self-respect wiU permit such things to be treated as arguable matters. I would add that a State is under no moral obhgation to enter into a reference, when it has reason to believe that a prejudice exists against it among those who would have (directly or indirectly*) to decide the matter. 409. The very interesting discussions that are now, from time to time, carried on among meetings of publicists and statesmen, and in the legislatures of some of the chief civilized Powers, on this great sub- ject, are too numerous and too complex for me to * When Heads of Sovereign States are named as Arbitrators, it is not expected that they win personally conduct the Re- ference. They usually employ eminent Jurists of their nation. Their case is an exception to the general rule respecting Ar- bitrators, according to which " Delegatus non potest dele- gare." 1 Calvo, p. 791. It is impossible to become familiar with the writings of the modem Continental Jurists without ob- serving the ill will with which they regard the Naval ascen- dency of England. Par be it from me to insinuate that these gentlemen would act with wil- ful partiality on any interna- tional tribunal before which weighty questions arose as to how we had acted in maritime matters, or which was called on to assert principles and to lay down rules seriously affect- ing the extent of our naval power, and its immediate ap- plicability for defending our- selves and for weakening our enemies. But it would show a total lack of political and foren- sic experience, and an almost childish ignorance of human nature, to suppose that we should labour under no undue disadvantages in such refer- ences. I wiU quote a passage from one of the most eminent of the authors whom I have OP INTERNATIONAL LAW. 399 attempt to review them here. The opinion is general, that for a system of general International Arbitration to be effectual, it must be supported by a convention of the principal States of the Old World and of the New, who must be pledged to enforce both the sub- mission of disputes to Reference and the due perform- ance of awards, save in certain defined classes of exceptional cases. There can be little hope of seeing such a convention cheerfully agreed to and loyally carried into execution while several of the greatest Powers retain their present mood of mutual suspicion, and continue their gigantic preparations for warfare. But this is no reason for disparaging the labours of statesmen and writers, who strive by argument and fair persuasion to bring about a more pacific general feeling, and gradually to win effective consent to the recognition of principles and practices which may diminish the frequency of Wars, even if Warfare can- not be altogether abolished. 410. We have hitherto been examining the pacific means that are, or may be, open to a State for obtain- ing redress or security in cases of International Wrong. Supposing these methods to have been proved inap- alluded to, which, is evidently matie. Ce principe sera parti- levelled at England : — " La culierement applicable loraque suprematie meme partielle d'un la puissance maritime d'un etat pent menaoer la surete et ^tat prendra un developpement la liberte des autres, et par la dangereux pour la liberte des porter atteinte a I'equilibre. mers." — Bluntschli, Droit In- EUe justifiera done la resis- ternational, sect. 100, p. 102, tance commune des autres etats ed. 1874. pour restreindre oette supre- 400 FIKST PLATFORM plicable or ineffective, we have next to examine tlie laws under which Force may be employed ; in other Limited orim- words, wc come to the laws of War. Yet, before a perfect War- fare. ■ State begins complete and regular War with its enemy, it is sometimes open to it to employ certain measures of what we may term imperfect or limited Warfare, measures which put a constraint, or an amount of suffering on the adversary, which may in- duce him to offer satisfaction, or to acquiesce in the injured State having taken the law into its own hands, and having satisfied itself. There are two kinds of this Imperfect Warfare — one called E,etorsion, the other called Reprisals. Some vrriters class here a kind of partial Blockade, which they term " Pacific" or " Commercial." But Blockade is essentially a Belli- gerent Right ; and the kind of blockade called- pacific or commercial, being limited to ships and cargoes of the offending Party, and having no operation as against neutrals, is really nothing more than a branch of Re- prisals. The same may be said of the Embargo which is sometimes laid on vessels and cargoes of the State from which redress is to be enforced. Betorsion. 411. Retorsion is a kind of Lex talionis, by which a State which considers itself to be injured by the line of conduct pursued towards it by another State, adopts a similar line of conduct in corresponding circum- stances towards the State whereof it complains*. * Ebtoesiok is sometimes injustice. Elle est un moyen de treated as a mere brancli of s'opposer a ce qu'un Etat ex- reprisals ; but Bluntschli's defi- erce ses droits au prejudice des nition of it seems to be correct, autres." — Droit International, Hesaysthat, "La Retorsion n' a scjct. 505, p. 285. pas pour but de se venger d'une OF INTEENATIONAL LAW. 401 412. Reprisals sometimes mean those acts of Reprisals, severity beyond what is generally sanctioned by the customary laws of war, which commanding officers Meaning of, J . 1 • n • 1 p ^ operations during actual war inflict on the enemy, on account of in War. illegal violences already practised by the enemy, and with the design of deterring him from persisting in such outrages. Reprisals, in this sense, will require much of our attention in the next chapter. At present Reprisals here ^ '■ considered as we are to consider Reprisals as measures of forcible measures of forcible Ee- redress taken by one State against another, without dress, short of regular War. necessarily entering into actual and general warfare, though War is very likely to result from their adop- tion. Vattel, in a passage cited and adopted by Mr. Dudley Field*, thus describes them : — "Reprisals are ^ri*tion^of used between nation and nation to do themselves *^^™- justice, when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if it refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages; or to keep it as a pledge till the off'ending nation has refused ample satisfaction. The effects thus seized are pre- served while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated ; and then the function of Reprisals is com- pleted" -f-. * Draft Outlines of an Inter- t Vattel, Livre 2. c. xviii. national Code, p. 472. sect. 342. I have not literally 403 FIEST PLATrOEM General Hal- 413. I will add to tMs extract from Vattel the de- leck's descrip- tion of Be- scription given by General Halleck of the nature of prisals. t> ■ i i • ^ i • Reprisals, and some of his remarks upon the caution and moderation which should always be observed as to emplojdng them. Parts of this subject have been already adverted to, in the chapter in which we had to consider a State's right and duty as to protecting its citizens, and in which we considered also the conflict that sometimes arises between the right and duty of one State in this respect and another State's right to independence*. General Halleck says that " Repri- sals are resorted to for the redress of injuries inflicted upon the State in its collective capacity, or upon the rights of individuals to whom it owes protection in return for their allegiance. They consist in the for- cible taking of things belonging to the offending State or of its subjects, and holding them until a satisfactory reparation is made for the alleged injury. If the dispute is afterwards arranged, the things thus taken by way of reprisal are restored, or, if confiscated or sold, are paid for with interest and damages ; but if war should result. adopted Mr. Field's translation En second lieu, U faut avant of the last sentence, que d'en venir-la, que I'on ait Vattel in Ms next paragraph, inutilement demande justice, ohserves, that " Le droit des ou au moins que Ton ait tout gens ne permet les represaiUes lieu de croire qu'on la deman- que pour une cause evidem- derait vainement. Alors seule- ment juste, pour une dette ment on pent se faire soi-meme claire et liquide. Car celui qui raison d'une injustice." forme une pretention douteuse, * See pp. 157, 311 supra, ne peut demander d'ahord que and Bluntschli, as cited in note I'examen equitahle de son droit, to p. 157. OP INTERNATIONAL LAAV. 403 they are condemned and disposed of in the same man- ner as other captured property taken as prize of war. As reprisals bring us to the awful confines of actual Caution and ... . . 1,1. in... . moderation war, it IS proper to mquire what kmd oi injuries m- neoessaryiu flicted upon the State collectively, or upon its indivi- Right of Ee- dual members, justify a resort to so dangerous a ^" measure of redress. It is only in cases where justice has been plainly denied or most unreasonably delayed, that a Sovereign State can be justified in authorizing reprisals upon the property of another nation. More- over the delay must be of such a character as to render it tantamount to a denial of justice. Thus, if the claim be a national one, it must be properly demanded, and the demand refused. If it be an individual, the claimant must first exhaust the legal remedies in the tribunals of the State from which the claim is due ; and after an absolute denial of justice by such tribunals, his own Government must make the demand of the sovereign authorities of the offending nation"*. 414. General Halleck proceeds to comment with some severity on the vehemence shown by the British Government in 1850, in authorizing reprisals on the Greeks for alleged wrongs suffered by Don Pacifico, a The Don- British subject. For a clear case the other way, a case where the wrongs done to British subjects were so heinous, and the hopelessness of obtaining justice from the local tribunals was so patent, that heavy measures of reprisals would have been fully justifiable, unless apology and compensation had been offered, * Halleok, p. 297. 2d 2 404 PIEST PLATPORM Theareek- we might refer to the "Greek Massacre" case in assacreoase. 2870. That casc, and the comments of Lord Sel- borne on the international duty of one State towards another as to local administration of justice, have already been mentioned in this volume*. Positive and 415. Reprisals are classified into, 1st, Positive, pSr* " and, 2ndly, Negative Reprisals, sometimes termed " Active " and " Passive." The Reprisals to which we have been more particularly referring in the last paragraphs, and which are the most common in prac- tice, are Positive Reprisals. But a wronged State may retaliate on another by refusing to fulfil some obligation, or to permit the other to exercise some right. The state on Such mcasurcs are called Negative Reprisals. Posi- Eeprisais are tivc Reprisals may always be treated, by the State on treat them m which they are inflicted, as measures of actual warfare, open warfare. -t ■> -ij i.j j-it_ and may be resisted or resented accordmgly by open hostilities. If it should not so treat them, and if the differences between the two States are ultimately settled by agreement, the original owners of the pro- perty seized when Reprisals were taken, are considered Eight of Pro- not to havc lost their rights of property. But if eeized!" ^^ regular War is the result, the ships and cargoes that have been detained by embargo or capture, and other goods that have been seized, are considered to be enemy's property and liable to confiscation, and to have borne that character from the very time when they were taken under the exercise of the right of Reprisals. " The subsequent hostilities have a retro- * P. 307, note, supra. or INTEENATIONAL LAW. 405 active effect, and render that taking a hostile mea- sure ab initio "*. It was formerly thought essential for the lawfulness Declaration of War, that the State about to make it should first issue a solemn Declaration of its purpose. But, as Chancellor Kent states, "in modern times the practice of a solemn declaration made to the enemy has fallen into disuse. * * * It has become settled that war may lawfully exist by a declaration which is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. * * * But though a solemn declaration or previous notice to the enemy be now laid aside, it is essential that some formal public act, proceeding directly from the com- petent source, should announce to the people at home their new relations and duties growing out of a state of' war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them." Dr. Abdy adds to these sentences of Kent the observation, that " In modern times documents of this kind are used as formal and solemn justifications to the rest of the world of the conduct and ulterioi- * Kent's ' Commentaries,' Wheaton, tome i. p. 276 ; Hal- vol. i. p. 70 ; Lawrence's leek, p. 297. 406 riEST PLATPOEM views of the belligerent immediately interested ; they will therefore be generally found to contain other matters than a simple declaration of war, and to be intended not so mucb for warning to the subjects of the belligerent nation of the fact of war, as for an appeal to public opinion. The fact itself, thanks to the publicity given to the discussions and debates of nations on subjects of international importance by the press, and by the improved condition of international intercourse, is often known long before the last mani- festo or declaration appears ; and it not unfrequently happens that warlike intentions are proclaimed by other preliminaries than manifesto or declarations, as, for instance, by the recall of ambassadors, by the tender of an ultimatum, or by peremptory language followed by hostile acts." The best practical rule for determining the exact date at which a State of regular and formal warfare should be considered to have commenced is that given by General Halleck*. " The legitimate consequences of war flow directly from the state of pubhc hostilities ; and the efiiects, which the voluntary law of nations attributes to solemn war, date with respect to belli- gerent rights from the commencement of such hostili- ties; and with respect to neutral duties, they date from an official announcement or a positive knowledge of the existence of the war." HowaDecia- 416. It remains to make a few remarks as to the ration of War .. . -..-•p o tit affects a State Juval positiou lu which a Manifesto of War places a ■with regard to _ ,,. , cm , ■ ^ ^ • j i it its enemy's ijelligerent otate with regard to its enemy s Allies. Allies. * Page 354. or INTEENATIONAL LAW 407 More will be said in another part of this work as to the nature and real extent of the obligations which Treaties of Alliance impose upon the Contracting States. For the present we only need inquire whe- ther a Declaration or Manifesto of War does or does not place the Allies of each party ipso facto in a state^ of Belligerency with the other party ; and, if not, whether it produces any, and, if so, what effects on the relations between the Allies and such other party. 417. We must distinguish here between Treaties Distinction be- whicli merely profess to bind States in amity and Treaties of good-will as to each other, and Treaties which stipu- Treatiesfor late for express cooperation or help in the event of operation. warfare with third parties. The compacts of the first class are like the conventional phrases of mutual devotion in private society, and practically count for nothing. We must distinguish, on the other hand. Various kinds fn • n • 1 ■ n 1 °' Treaties for between Treaties tor martial cooperation generally, and Martial Co- Treaties for martial cooperation notoriously made in expectation and in furtherance of the very war which is breaking out. In such a case you (the State against which such Treaty is levelled) have clearly a right to treat the State, which is your principal enemy's accessory before the fact, as a principal in the war itself, and to include such State in your Declara- tion of War, and in those prompt measures which, as we have seen, one Belligerent may lawfully take against another at the very commencement of the War. Yet even here it is apprehended that you may, if you please, waive or defer the exercise of your right. 408 FIEST PLATEOEM Ab to your enemieB' ■Allies under Treaties of Offensive and Defensive Alli- ance, or of Defensive Alli- ance only. Not much real difference. You may remonstrate with the Accessory Enemy, and call on him to renounce his projects against you. Even if he refuses to do this, and yet does not abso- lutely attack you, you may, as a matter of prudence and out of regard to your self-interest, abstain from treating him as a Belligerent. This will sometimes be the case. Nations, like men, will occasionally bluster and threaten, and vow vengeance and havock, and yet will, when the hour for action comes, recoil from actually joining in deeds of violence. In such a case you may, by your prudence and self-control, escape having a sword thrown into the scale against you, which must have turned the balance with fatal effect between you and your main, your real ad- versary. 418. But the most common case is where, at the outbreak of a war, a State has to deal with an enemy between whom and third States there are Treaties of Offensive and Defensive Alliance, or of Defensive Alliance. There is not in reality the amount of differ- ence between these two classes of Treaties which at first sight appears to exist ; " for many wars which are defensive in operations are essentially offensive in their character and principles. In the words of Wheaton, ' where attack is the best mode of providing for the defence of a State, the war is defensive in principle, though the operations are offensive. Where the war is unnecessary to safety, its offensive character is not altered because the wrong-doer is reduced to defensive warfare. So a State against which a dangerous wrong is manifestly meditated may prevent it by striking the OP INTERNATIONAL LAW. 409 first blow, without thereby waging a war in its prin- ciple offensive' "*i 419, In all these compacts of warlike alliance, every such Treaties ii-111 •! •! 1 -in °"^y binding treaty is held to contain the tacit clause that it shall on condition tlia>t th© W^ar not be binding, except in case of a Just war ; and the is a just one. Ally, who is " to render the assistance, has a right to decide for himself upon the character of the war, and whether or not the casus fcederis has taken place "f. The advice which General Halleck founds on this is as humane and sensible as the principles which he maintains are sound. " A warlike Alliance made by a third party, before the war with a State then our friend but now our enemy, will not, as a general rule, be of itself a sufficient cause for commencing hostilities against such third party ; for there may be good reason why he should not regard himself as bound by the obligations of the alliance. It would certainly be very impolitic as well as improper for us to treat as a belligerent one who may not be disposed to become our enemy. The character of the aUiance and the peculiar circumstances of the case must serve as guides for our conduct, always keeping in mind the maxim, that it is better to have a friend than an enemy, and the rule of international law that we are justifiable in engaging in hostilities only so far as may be necessary for our own security and the protection of our just rights "|. 420. You certainly have a right in such a case to * General Halleck, p. 417. ' Elements,' 1, part iii. ch. 2, t /6ic?. 417; Vattel, Uv. 3, 15. Abdy's ' Kent,' 180. > chap. 6, sect. 83. Wheaton's % HaUeck, p. 415. cour. 410 riEST PLATFOEM Eight to call Call upon the Ally of your opponent to declare whether to declare hi^ he means to act against you or not ; and if he refuses intentions. . ■ ■ ,• r i i-i • j. i- to give an express renunciation oi hostile intentions towards you, you are in every way justified in forth- with treating him as your enemy, unless you consider, as above explained, that it is for your interest to for- bear from doing so. As to Treaties 421. Somctimes the treaty of Alliance between defined sue- your advcTsary and the third State does not agree generally and without limitation for help in warfare to be furnished by one to the other, but only that a stipu- lated amount of troops, of ships of war, of money, &c. shall be supplied. Where this is the case, and there is no additional promise looking to an eventual coopera- tion in general hostilities, the execution of such a treaty (according to the authorities) does not neces- sarily render the party furnishing this limited succour the enemy of the opposite belligerent. It only be- comes such so far as respects the auxiliary forces thus supplied; in all other respects it remains neutral. General Halleck adopts this doctrine*, and appeals for it to Wheaton, Vattel, and others. But I must observe that it appears to me that, so far as regards giving the State which supplies the troops &c. an absolute right to be treated as a neutral by the State against which those troops &c. are to act, this doctrine should be regarded as ema- nating from the very lax theories about the duties of Neutrals, and their being at liberty to allow levies of troops, and even to supply troops to either belli- * P. 419. OF INTEENATIONAL LAW. 411 gerent, which were prevalent down to the times of the French Revolutionary war, when the United States introduced more wise and just principles and prac- tices in this behalf. More will be said on this subject jn a coming chapter on the rights and duties of Neutrals. It seems to me clear that the Belligerent State against which the troops, &c., are sent by its adversary's Ally, may, if it pleases, regard such a participation in the war as an act of hostility by the Ally, and may, if it pleases, forthwith treat such Ally as a belligerent enemy. But there is a discretionary power to abstain from so treating it*. * Martens (p. 308) observes on this subject, that " strictly speaking, a Belligerent Power has a right to treat as his enemies all the powers who lend assistance to the enemy, from whatever motive, or in consequence of whatever treaty. However, policy has induced the Powers of Europe to depart from this rigorous principle. They now admit : — 1, that a sovereign who furnishes troops in virtue of a treaty of subsidy does not thereby become the enemy of the Power against which those act ; 2, that as long as a sovereign sends to the assistance of his ally no more than the number of troops &c. stipulated for in the treaty of alliance, and does not autho- rize them to serve upon any other footing than the one specified in the treaty, such a sovereign ought to he looked upon as an auxiliary, and not as the enemy of the Power against which his troops make war ; and, of course, that such sovereign ought to be permitted to enjoy his rights of neutrality. This is more especially the case when the aid of an auxiliary is the consequence of a treaty of general defensive alliance concluded before the beginning of the war. " We have seen some Powers claiming the rights of neutra- lity even while they were fur- nishing the greatest part of their troops, and contributing principally to the resisting of the enemy and the continua- tion of the war; but imperi- ous circumstances and motives of policy only can induce the 4 1 2 HEST PLATFOEM CHAPTER XI. On RieHTs and Duties between the Beiligeeents. Recapitulation of Primary strict Laws -oi War, and of Secondary- milder Laws of War. — Extent of the Influence of the latter. — • Question considered of how far the old strict Rules have be- come dormant, and how far they have become extinct among civilized Nations.— Question considered of What, if any, is the Sanction of the Secondary mUder Laws ? — Remarks on recent Russian and English State Papers on the subject. — Duke of Wellington's Despatches iu 1828. — The Solonian Maxim ap- plicable. — Modern Laws of War as between combatant regular Forces. — Eight to Quarter. — Cases of supposed useless Resist- ance by Garrisons and Ships of War. — Treatment of Prisoners of War, and of Enemy's Sick and Wounded. — Hospitals, Asy- lums, &c. — Means and Implements of War. — Use of poisoned Weapons, or of unnecessarily cruel Weapons. — Of poisoning Wells or Food. — Of cutting off Supplies. — Of Assassination. — Of use of Spies and Traitors. — Of Reprisals. — Who are to be regarded as Non-combatants ? — How are they to be treated ? Rights and supposed Eights as to Private Property. — Of Re- quisitions and of Confiscations. — Of devastating Territories, and removing Inhabitants. — Of sacking Towns taken by Storm. — Of governing Hostile Provinces whUe under tempo- rary Occupation. — Of Insurgent Inhabitants, and Levies en masse. — Of Privateering. — Of Capture and Condemnation of Vessels and Cargoes. — Of Suspension of Arms, of Truces, Armi- stices, Passports, Safe-conduct, and Cartels. — Of Belligerency when one Party is not a recognized Sovereign State. Eecapituifltion 422. We have seen the strictness of the old Primary Laws of War. Laws of War ; but we have seen also that War vpas enemy to treat such Powers as all their forces, without doubt neutral. they may and ought to be " When two Powers become treated as enemies by the ad^ Allies in form by carrying on verse party.'' the war in common and with OF INTEENATIONAL LAW. 413 recognized by the great Roman Jurists as subject to LaW' — nay, that it was regarded by them as being itself an Institution of Law, of the Jm Gentium, of the Law common to all civilized nations*. Reasons have been given for believing that Rome's Laws of War, as taught and studied by her Fetials, her Jurisconsults, her Statesmen, and her Generals during the struggling and conquering ages of the Commonwealth, were much more copious and explicit than the maxims on the subject which we learn from Roman Historians and Philosophers, and those which the compilers of the Imperial Institutes and Digests have preserved for us f . We possess, however, enough to enable us to comprehend the severity of the old War-code. It Sererity of the has been pointed out that it was lawful to inflict death or slavery on the conquered, and that, on the outbreak of a war, even those foreigners who had come into Roman territory for pacific purposes were liable to be seized and made slaves of. An enemy (under which phrase every member of the population of the hostile community was included) was considered to have no rights of property ; and their land became the land of the conquering State. A fundamental exceptional rule on the side of its exceptional humanity and magnanimity required that faith should side of magna- nimity and * See svLjyra, p. 369 et seg[., mencement of Chapitre 2, " De generosity, especially the passage from la guerre." Hermogenianus, cited and com- t See pp. 89 and 373, supra, mented on at p. 370. See also and notes, especially the pas- Montesquieu, Be V Esprit des sage cited from Cicero's Speech Lois, Livre x., Chapitre 1, " Be for Balbus. la force offensive:" and the com- 414 MEST PLATEOEM be kept in all compacts with the enemy, and forbade the employment of assassination or of treachery. It was also reckoned a breach of lawful warfare to put enemies to death after they had once been allowed to surrender and had received quarter*. Statesmen and generals who admitted enemies to surrender on such terms, were praised by philosophical writers for their clemency ; but they had a perfect right to refuse quarter in the battle or the siege, or in the pursuit of the defeated foe, " dum fervebat opus," to use the General prac- expressivc phrasc of modcm Jurists. It is quite true Romans as to also that the Romans did not, as a rule, enforce their fands"oVeon- Stem war-rights of confiscating the whole of the lands not eo sererras of couqucred States, or of enslaving whole populations, pies! ^"'^'^' It has been pointed out by Gibbon that, unlike other nations of antiquity, the Romans, instead of wholly enslaving or exterminating those whom they subdued, generally followed the policy of taking a portion only of the conquered territory, which they granted out to Roman colonists, who became garrisons of the Imperial Commander's power. The rest was left to the old inhabitants, to be held on terms more or less onerous to the subject class, according to the amount of re- sistance which they had shown, and the other circum- stances of the casef . But in all this, and in some other mitigations of the extreme right of victory, the Romans were acting out of regard to policy, and not as under any compulsory rules to be merciful. Where the supposed interest of the conquering Republic required * See Sallust de Bell. Ju- t See also Montesquieu, Liyre gurth. chap. 91, and p. 374, x. Chapitre 3, note to 4th para- note, svpra. graph. OP INTEENATIONAL LAW. 415 sterner measures (as in the cases of Carthage and Co- Occasional rinth), dooms of destruction, of total confiscation of less ssTerity. property of every kind, of wholesale slaughter, of selling into slavery all who escaped the edge of the sword, were unsparingly carried into execution. Dr. Abdy* cites one fearful instance of this, which oc- curred in the time of Augustus. "A Roman General, famed quite as much for his humanity as for his courage and soldierly qualities, Nero Claudius Drusus, met the Germans in the field, and not only defeated them with great slaughter, but laid waste whole dis- tricts, carried off the women and children into slavery, and hunted the men down like wild beasts." Many more cases of the kind might be mentioned ; and one of the worst is to be found in Julius Caesar's narra- tive of his campaign in Gaul against the Veneti. His boasted expeditions to Britain were in reality chiefly slave-hunting expeditions. Indeed so long as one of the principal means, by which a Roman general sought to enrich himself and his troops, was by the sale of war- captives, either for the purposes of prsedial or domestic slavery, or to furnish combatants for mutual slaughter in the Roman gladiatorial exhibitions, there was always a terrible temptation to a Roman Commander both to engage in hostilities not necessary for the security of his province, and to conduct those hostili- ties in the most cruel manner. 423. I refer back to the last chapter-j- for com- How far are ments on the Influences which mitigated the old rules milder Ws of of War, and on the origin of the Secondary Code mereComityf * Abdy's Kent, p. 22. f P. 375, supra. 416 FIEST PLATFOEM of Laws of War. But something must be added here as to how much of these new so-called Laws of War are matters of mere .Comity, or, at any rate, have not passed beyond the domain of Moral Law, and as to what really is the Sanction of such of the new Laws as we are disposed to regard as Laws Positive. These are far from being questions of mere speculative inquiry. Practical im- Their practical importance is proved by the official portance of , , ,. i-i-,-^ these topics. Correspondence between the British and Russian Go- vernments during the January of 1875, on the Rules of Military Warfare*. I shall have occasion to cite and to comment on some portions of these very signifi- cant Despatches. Remember to 424. I must here, at the risk of offending by repe- lightBof True^ titiou, remind my readers that all these matters are to and of Moti™- he Scanned by the light of two great Principles, which perhaps should be regarded as merely different ways of propounding one great Principle, but which it is more convenient here to continue to speak of sepa- rately. One of these is the Principle of Modern Utili- tarianism, to the consideration of which the third chapter of this book was devoted — the Principle that, in order to test the soundness and value of a line or rule of action, you must examine whether its whole tendency is or is not to promote in a reasonable degree the advantage, not merely of the acting party, but of all who are liable to be affected by it, if it were generally acted on as a rule. The other Principle to be borne in mind is that set forth in the oft-cited * See House of Commons' 1875, and same, No. 3, Papers, Miscellaneous, No. 2, 1,875. quieu s maxim. OF INTERNATIONAL LAW, 417 maxim of Montesquieu, which has now for more than a century been recognized as a moral authority at least throughout the civilized States of Christendom, and which must be considered applicable to such other nations also, as have either expressly or by impli- cation professed their adhesion to the International Law of that great mass of the Commonwealth of Civilized States* : — " Le Droit des gens est naturel- lement fonde sur ce principe, que les diverses nations doivent dans la paix le plus de bien, et dans la guerre le moins de mal, qu'il est possible sans nuire a leurs veritables interets"t. I have already carefully drawn attention to this most important qualifying clause of the part of Montesquieu's maxim, which directs nations to do as little harm to each other in War as possible. That abstinence from inflicting harm is only to be practised so far as is consistent with the Belli- gerent State's own interest. I have shown what this interest really is when we regard it by the light of International Jurisprudence. A Belligerent State's true interest is to weaken its adversary — to make its enemies suffer, so that they shall learn wisdom and justice by their sufferings, and shall be made willing (even if only out of dread of increased sufferings) to make compensation for past wrong, and to give secu- rity, if needed, against the repetition of wrongs. Such is the main purpose of every just war ; and the harms to an enemy, which it is morally lawful to inflict with the view of effecting that purpose, are such harms only * See supra, p. 129 et seq. t De VEsprit des Lois, liv. chap. 3. 2 E 418 FIRST PLATFOEM Secondary Rules which do not pass beyond the do- mains of Comity or mere Moral Law. As to seizure of Persons and Property of hostile States found in ter- ritory on out- break of War. Public Law aa to this as ex- gressed by [artens. as tend to effect it directly and substantially, and not such acts of cruelty, spoliation, or waste, as cause misery to individuals, but only operate in an infini- tesimal degree and by remote influence on the great results of the war*. 425. I will begin with those secondary Rules of Warfare, which, even if they can be regarded as more than mere matters of Comity, cannot be safely regarded as having passed beyond the domain of Moral Law, and for the breach of which no Sanction is provided, save that which is, technically speaking, no Sanction at all, the general disapprobation of civilized man- kind. 436. First, then, as to persons and property of the enemy-nation, which are found within the territories of a BeUigerent State at the outbreak of a war. Enemy's property, in this matter, includes debts due to such enemies, either by the Belligerent State itself, or by individual members of that State, though different modes of action may be adopted as to these different kind of debts. 427. Without taking in detail the doctrines and sentiments expressed by various Jurists on this sub- ject in modern times, I will cite, as expressing the general opinion which was held on it, the words of the Gottingen Professor Martens, written about a century ago. Martens says, " From the moment a sovereign is in a state of war he has a right, strictly speaking, to act as an enemy, not only with respect to the per- sons and property found in the territory of the enemy, * See supra, p. 364 et seq. or INTEENATIONAL LAW. 419 but also with respect to his enemy's subjects and their property, which may happen to be situated in his own territory at the breaking-out of the war. He has a right then to seize on their ships found in his ports, and on all their other property, to arrest their per- sons, and to declare null and void all the debts which the State may have contracted with them. However, nations, for their mutual benefit, have been induced to temper the rigour of this right. 1. In a great number of treaties nations have stipulated, in case of a rupture between them, to give each other's subjects residing in their territory at the breaking-out of the war, or coming to it not knowing of the declaration of war, a specified time for the removal of themselves and their property. 2. Sometimes it is agreed to let the subjects of an enemy remain during the whole course of the war, or so long as they live peaceably and quietly. 3. Besides these precautions taken between nation and nation, many States have provided, by par- ticular laws and privileges, for the protection of the persons and property of enemy's subjects. 4. Gene- rally speaking, a nation does not venture to touch the capitals which the subjects of the enemy may have in its funds, or that it may otherwise owe to such sub- jects "*. 438. During the last hundred years the almost etenerai prac- universal practice of nations has followed the wise and from°Tiorence humane policy of abstaining from all violence towards *° s^^"™- the persons and the property of members of the hostile State found within the territory of its adversary at * Martens, p. 275. 2e 2 420 FIRST PLATFORM Exception as to ships and their cargoes. Conduct of the First Consul in 1803, ar- resting and ^ detaining English visitors to France. Gteneral Hal- leck's com- menta on this. the commencement of a war. It is, however, to be noticed that this abstinence, as a rule, has not been extended to vessels and cargoes found in the ports or other territorial waters. More wiU be said of this distinction presently. First, with regard to persons. When war between England and Prance was renewed in 1803, Napoleon (then First Consul) ordered all the English between the ages of eighteen and sixty, who were then in France, to be seized and detained as Prisoners of War. He directed similar measures to be executed throughout the Italian and Batavian Repub- lics, which were mere dependencies of France. Under these orders many thousand peaceable British travel- lers and traders were seized and detained at Verdun and other French fortified towns till the conclusion of the war in 1814. This harsh and oppressive measure had not and could not have any appreciable effect on the armed contest between England and France ; but it caused an infinite amount of misery to the indivi- dual English who were seized under it, and also to their domestic circles at home. This act of vindictive hatred (for such, and such only, was Napoleon's mo- tive) gave horror and distress to his own warmest friends, who vainly strove to dissuade him from it ; and it has been invariably censured by historians and jurists of every nation who have referred to it. But it is not spoken of as a breach of strict International Law. General Halleck, treating of the Rights of War*, as they now actually exist, says that " one of the immediate consequences of the position in which the * P. 360. OP INTEENATIONAL LAW. 421 citizens and subjects of Belligerent States are placed by the Declaration of War is, that all the subjects of one of the hostile Powers within the territory of the other are liable to be seized and retained as Prisoners of War." He praises the milder practice which has now prevailed for very many years, and he blames Buonaparte for having resorted to means " so uuusual and odious " for annoying the subjects of the hostile State. But he pronounces those means to be " within the limits fixed by the ancient and severer laws of War " *, and that " the extreme right still remains." So Sir Travers Twiss, in his quite recent publication. Those of sir says that " the exercise of the summum jus of a belli- gerent in regard to enemy's subjects in transitu is not altogether obsolete, although it may be regarded as a matter of ' Comity between Belligerent Powers ' to refrain from seizing and detaining as prisoners any enemy-subjects whatsoever, who may happen to be within their respective dominions at the outbreak of war, if they conduct themselves without offence " *. He narrates and comments in a proper spirit on Buona- parte's conduct towards the English detenus of Verdun, but he gives it no stronger jural epithet of blame than that of an exception to comity. I think it should be regarded as one of the worst specimens of contempt of International Moral Law that modern history can supply ; but the case cannot be carried further {. * P. 362, no attempt has been made for -|. p. 35. centuries to imitate the Ro- % I need hardly add, that mans by selling detained fo- 423 PIEST PLATFORM Recent prac- 429. The usage is now general to allow the sub- nations".'^^'''^ jects of the enemy to return freely to their homes with their effects after a specified time, or to remain peaceably in the country in the enjoyment of their property, unless circumstances should occur which make their absence desirable for the public interest, in which case they are to receive timely notice of removal. As to seizure of 430. With rcspect to seizure of private property goods and eon- . , . , . i j_i n i.- e fisoationof fouud Within the territory, and the coniiscation or debts, an attempt was made to distinguish between their several liabilities to confiscation, in the judgment delivered by Mr. Justice Story, in the very important case of "The ship Emulous," reported in the first volume of Gallison's 'Reports,' p. 563. But that distinction was repudiated by the Supreme Court, when the case was brought before it on appeal. The case appears in the Supreme-Court Reports under the title of " Brown v. United States"*. It is a very important decision ; and the names of Mr. Justice Story and of Chief Justice Marshall (who presided in the Courts of Appeal) are justly so much respected by International Lawyers, that I shall pause to point out doctrines as to which these eminent Judges agreed, as well as those wherein they differed. Both courts were agreed as to the continued existence of the ancient right of a Sovereign of a BelHgerent Important judgments of American Tribunals. reigners into slavery. Ee- marks wiU be made hereafter as to the nature of the Inter- national crime which it now would be to treat Prisoners of War as slaves. * 8 Cranch, p. 810. or INTEENATIONAL LAW. 423 State to seize the persons and to confiscate the pro- perties of members of the hostile State found within the territory. But Mr. Justice Story held that by the mere declaration of hostihties the Sovereign authorizes any of his subjects to detain and appropriate in behalf of the Sovereign all such property as may come into his [the subject's] hands — an act of which the Sove- reign may subsequently avail himself. The Appellate Court held, no less clearly than Mr. Justice Story, that the ancient right of seizure still exists ; but they held that an express and solemn manifestation of the will of the Sovereign of the Belligerent State to enforce that right was necessary before the right became operative. No legal authority to seize and confiscate followed on the mere outbreak of War. Mr. Justice Story had said, in his judgment as to the confiscation of debts, " On a review of authorities I am entirely satisfied that by the rigour of the Law of Nations and of the Common Law the Sovereign of a nation may lawfully confiscate the debts of his enemy during war or by way of reprisal." He after- wards says, as to this " summum jus," that " this, though a strictly national right, is so justly deemed odious in modern times, and is so generally discounte- nanced, that nothing but an express act of Congress would satisfy my mind that it ought to be included among the fair objects of warfare, more especially as our own Government have declared it unjust and impolitic. But if Congress should enact such a law, however much I might regret it, I am not aware that foreign nations, with whom we have no treaty to 424 imS'H PLATFOEM the contrary, could, on the footing of the rigid Law of Nations, complain, though they might deem it a violation of the modern policy." This was appealed from. Some of the most material portions of the judgment of the Supreme Court are as follows : — " As to enemy's property found on land at the commencement of hostilities, the declaration of war does not by its own operation so vest the pro- perty of the enemy in the Government as to support proceedings for its seizure and confiscation, but it vests only a right, the assertion of which depends on the will of the sovereign. "Respecting the power of Government no doubt is entertained. That war gives to the sovereign full right to take the person and to confiscate the property of the enemy wherever found, is conceded. The miti- gations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. " Between debts contracted under the faith of laws and property acquired in the course of trade on the faith of the same laws reason draws no distinction. And though in practice vessels with their cargoes found in port at the declaration of war may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land which were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the rights of war. * * * " War gives the right to confiscate, but does not OF INTEENATIONAL LAW. 425 itself confiscate the property of the enemy. War gives an equal right over persons and property." The doctrine that the right to confiscate debts EngKshdeoi- ° sions denying still exists as a matter strictissimi Juris (although the the right to confiscate exercise of it has become unusual and odious, and debts. although no presumption is ever made of the intention of the rulers of a State to enforce it), is certainly con- troverted by the decisions and dicta of the English courts in Wolff «. Oxholme, 6 Maule and Selwyn, 93, and Furtado v. Rogers, 3 Bosanquet and PuUen, 191. But so long as the English jurists recognize a right SmhUih&t . . , •, • -iiji -li tli8 American to seize property, it seems impossible to deny a right judges were to confiscate debts. The judgment of the American "^ Supreme Court, in Brown v. The United States, ap- pears to be conclusive as to the same principle being applicable to c/ioses in action, such as debts, as the courts applied to goods and chattels. Reference may be usefully made to the reasoning Authorities of of Mr. Wheaton about this in his ' Elements,' pt. 4, PhiUimore° chap, i., and, above all, to the comments of Sir Robert Phillimore in his third volume, page 720. 431. One kind of confiscation of debts is specially Of confiscation 1 1 -^ -x 1 . . of state-debts. reprobated, even by those who admit its abstract legality. It is the confiscation of debts due from the belligerent Sovereign State, in its State capacity, to private members of the community vFith which war has broken out. The attempt of Prederick II. of Prussia and - 1 • 1 1 1 ^^ Silesian Prussia, in 1753, to confiscate the money which had Loan. been lent to the former sovereign of Silesia by English capitalists, and which Prussia, on Silesia being ceded to her, had undertaken by treaty to pay according to 426 HEST PLATFORM The great English State- paper. Case trhere the hostile State was itself the debtor. Conduct of England as to the Husso- Dutch loan. the contract between the original borrower and the lender, was universally censured by the civilized world. It caused the issue by the English Government of that memorable State-paper which has been so often referred to. The English jurists who prepared that " Besponse sans replique," as Montesquieu termed it, said truly that " it will not be easy to find an instance where a person has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a Prince \i. e. to a Sove- reign State] upon the faith of an engagement of honour, because he cannot be compelled like other men in an adverse way in a court of justice. So scru- pulously did England, France, and Spain adhere to this public faith, that during war they suffered no inquiry to be made whether any part of the public debt was due to subjects of the enemy, although it is certain that many English had money in the French funds, and many French had money in ours." The same course was followed during the subsequent wars of this country with France. The observance of this principle of moral rectitude has been lately extended by England to the case where one belligerent State owes money, not to individual members of the hostile community, but to the hostile State itself. By certain treaties concluded in 1815 and 1831, Great Britain became bound to pay to Russia a moiety of a certain loan which had been made, to Holland by Russia. When the war of 1854 of England and her allies against Russia broke out, our Government continued OF INTEENATIONAL LAW. 427 to pay regularly to the agents of the Russian Govern- ment throughout the war both the interest and the stipulated instalments of the principal of the loan *. On the subject being brought before Parlia- ment the House of Commons sanctioned the continu- ance of the payments, because " Great Britain being at war with Russia was bound by a regard to national honour to be more than ever jealous of affording the slightest ground for the accusation that she wished to repudiate debts justly contracted with the Power which had become for the time her enemy ". 432. It is clear that throughout the cases which we Breaches of have been examining, in all of which the strict right modem laws of reviving the old severe laws of war exists, a depar- general are ture from the milder practice of modern ages can ofCom^^.or, , , .1 ^ 1 p i^ "A i. ii at Uie most, of amount to no more than a breach oi Lomity, or, at the Moral Law. very utmost, to a breach of Moral Law. But cases Semiie that are imaginable in which the abrupt departure from exist wha-e , • 1 i. 1 J.J. 1 J -J.! ■ L such breaches modern usage might be attended with circumstances should be of such aggravation and atrocity, as to make the tMrd^parties offence one which civilized nations ought to treat as a posMto'^iIw! gross offence against International Law, and in which they would be justified in taking forcible means to repress such outrages f. Unless third States may and oiight to act thus, there can practically be no Positive Law on the subject. Por the State which is immediately aggrieved is already at war with the wrong-doer, and can only vindicate * See the narrative and f See chap. ii. svprd, p. 44, comment of Sir Travers Twiss, as to the Solonian maxim of a ' Law of Nations,' ed. ,2, p. grievous wrong being a matter 113_ of public concern. Governments. 428 FIE8T PLATFOEM itself by Reprisals ; indeed the atrocity of the con- duct of the offending State may be so heinous that the injured State is not justified in imitating it, and consequently even the check of liability to Reprisals is withdrawn. This important point will be further considered presently; and although, generally speaking, Reprisals may be properly made for all breaches of Moral Right, or of Comity, there are cases in which they would confer no special deterrent se- ABsertionsto curity. The Government of one of the greatest recent State- Powcrs of the civilizcd world has lately asserted in an European important official document, that the Laws of War (and indeed that the whole Law of Nations) can have no existence as Positive Law, except so far as some parts have acquired the force of law by means of formal treaties*. In the reply sent by the British Minister to this State-paper of Russia are the following observations : — " Rules of International Law in which the interests of neutrals and belligerents are concerned can be en- forced in the last resort by recourse to war. " In the case, however, of countries already engaged in hostilities, there will be no means, except by re- prisals, for either beUigerent to enforce upon the other the observance of any set rules. " It is true that, on the outbreak of war, it would be almost certain that one or other belligerent would appeal to neutral nations against some real, or sup- posed, infraction of these rules by his opponent. It * See " Observations by Paper, Miscellaneous, No. 3, Prince Gortschacov on Lord 1875. Derby's Despatch " in Pari. OF INTEENATIONAL LAW. 429 can, however, scarcely be seriously contemplated that neutral countries should intervene to enforce their observance ; and, unless their interference were at- tended by the exercise of compulsion, in which case the circle of hostilities would soon be indefinitely enlarged, it cannot be supposed that the contending nations would respect it." 433. I find, however, in the Wellington Despatches p«- contra, see proof that on one memorable occasion the English DespSesof Government was prepared to treat gross and cruel The English breaches of the Laws of War as a casus belli, a°er^™* which third States were justified in recognizing, and cl^us^^ok-"" which required their preventive interference. Of of'w^^to^''' course I do not cite the Duke of Wellington as having ierenJe by^"^' personally any jural authority ; but his experience in ^^^ Powera. war and statesmanship, and his clear common sense, always entitled his opinions to much consideration ; and when he was speaking the judgment and the inten- tion of the British Government, which he then repre- sented at the Court of St. Petersburg, we may be sure that he was expressing opinions formed by our Cabi- net, with the guidance and advice of the able Law- officers of the British Crown. At the time which I charge then refer to, Ibrahim Pacha was in Greece, in command Srahim'''"^ of the vassal auxiliary Egyptian force, which Mehemet precedratX Ali, the Pacha of Egypt, had sent to aid the Sultan ^oeltST' against the Greek insurgents. Ibrahim Pacha was ^^ar'mthe rapidly reconquering the Moreaj and, besides the ^°^^^- undoubted fact that the war was carried on between him and his armed opponents in the same merciless spirit which had characterized the contest from its 430 FIEST PLATPOEM commencement, it was imputed to the Egyptian Com- mander that, in every district and town which he won from the Greeks, he seized the Greek male children for circumcision and forcible conversion to the Maho- metan faith, and that he had declared and was begin- ning to act on a system of transplanting the remains of the Greek population to Egypt, and of repeopling the Peloponnesus with colonies of Copts and Arabs*. Atrocities of similar character may be found in the his- tories of ancient and of mediaeval Oriental conquerors ; but even if any thing of the kind had ever been prac- tised by any of the civilized nations of the West, cer- tainly many centuries had passed away without European warfare being sullied by such abominations. Tui-key then It is to be remembered that the Ottoman Turks had, paieof modem long bcfore the Greek War of Independence, on more Law. than one occasion appealed to the European laws of nations, and had recognized the principles and usages which those laws establishedf. Even if this had not been the case, it is not likely that civilized European communities would have tolerated the obtrusion into their continent, or into any part of the world where their usages predominated, of such hideous barbarism. The Duke of Wellington urged that these charges England ready agaiust Ibrahim Pacha should be investigated ; and the to intervene -r-. i ■ • i i ■p ifthesecharges Duke mamtamcd that, if true, they gave third States the right to intervene in the war J. In a memorandum, * See the third series of the in .1737, cited in the note to Wellington Despatches, vol. iii. page 131 supra. p. 75. J See Wellington Despatches, t See instances, beginning Third Series, vol. iii. p. 75. OF INTEENATIONAL LAW. 431 dated March 7, 1829, which he laid before the Emperor The Dute-s of Russia, the Duke, speaking of the intended conduct of 7th March, 1829 of the King of England, says, " His Majesty will not suffer any violation of the laws of nations, or of the ordinary rules of war, in carrying on the contest"*. These general words must, of course, be read " secun- The worst /il-io|«nAci n Aril An dum subjectam materiem," and considered to apply to and not such enormities as were specially made subjects of ^™^ complaint against Ibrahim. But the Egyptian Com- mander denied the truth of these charges. No proof of them was given or found ; and consequently other grounds for intervention, besides a general statement that the war was carried on by the Turks in a ferocious manner, were put forward by England and her allies, when intervention actually took place in the October ofl829t. 434. The conclusion as to the whole matter now An atrociously put forward for consideration is as follows : — When a huootthe belligerent State within the pale of International Law juatifies anl"^ atrociously and enormously violates {immaniter violat) sanction of* the restrictive rules as to doing harm to enemies either third states at the outbreak of hostilities or during their continu- ^^j^^'^f ance, and whether the restrictive rules so broken by it ^ort of an'°^ belong to the restrictive rules which existed in and ^XS\iU have existed ever since the old Roman war-code (so ^^^°^- far as we can trace it), or whether they form part of so much of the secondary war-rules as has gradually grown up among the nations of civiHzed Europe and ♦See Wellington Despatches, tion of England, Kussia, and Third Series, vol. iii. p. 159. Erance to aid the Greeks, see t For the real and alleged supra, p. 300 at seq. uses of the actual interven- 432 PIEST PLATFOEM such other nations as have followed or adopted Euro- pean International Law (as to which secondary rules there has been no reservation of the strict right to en- force the older and sterner system), then in such a case, but in such a case only, all other civilized States have a right to join in repressing such crimes against the Commonwealth of nations, by remonstrance, by suspension of intercourse with the offending State, and, if such milder means are ineffectual, by the em- ployment of actual force. All the arguments of Grotius, Vattel, and others, that have been quoted in the second chapter of this work *, in support of the doctrine that it is the duty as well as the right of all civiUzed States to join in repressing atrocious out- rages against International Law, apply to this Needofespe- casc. The Same limitations as to the propriety of cial caution in.. i-ii i i- ^ the exercise of mtericrence which have been mentioned respecting third "powers the general doctrine apply with pecuhar force to this particular branch of it ; for there is hardly any other case in which a powerful and unscrupulous third State would have more temptation to interfere in a war under the pretence of humane feeling, but in reality to gratify its own malevolence or to forward its own selfish interest. Armed interposition may be improper in many cases, although deep moral loathing has necessarily been created by unusual severities. There is special need of forbearance on the part of third Powers, when both the Belligerents have been equally cruel (as too often is the case), or where the extra measure of cruelty on one side is evidently attri- * See p. 45 et seq. swpra and notes. to interrene. OF INTERNATIONAL LAW. 433 butable wholly and solely to the circumstance of that side possessing an extra naeasure of strength. On the other hand, there may be cases in which the com- plicity of both sides in horrible violations of Inter- national Law may furnish additional reason for interference. Some further remarks on this subject will be given presently when we speak of Reprisals. 435. The general hmitation also applies here, that Third state not bound to no third State is bound to exercise this right of inter- apply this ference, if by so doing it would bring serious mischief lead to its own serious or peril on itsell*. injury or 486. Let us apply the Principle, which I have en- ?,™^j_. ^^ deavoured to enunciate, to acts which might pos- applied to ° '■ supposed case siblv be committed at the outbreak of a war. I will of selling •' _ "Detenus take the treatment of enemy-subjects who are then into slavery. found within the territory. I will not assume the realization of the extreme possibility that they might be seized and put to death ; but I will assume the reahzation of the possibility that the old rigid Roman war-rightf might be revived, and that such enemy- subjects might be seized and made slaves of. Here is a Distinction case in which, if the crime were committed by a State states which within the pale of modern International Law, such which are not , 1 .. , • ,-n J • within the crime would, as it appears to me, justify and require paieofmo- the armed interposition of civilized States in general. tiomiLa™^ It would be different if the State, which seized and enslaved enemy-subjects within its territories, were a * See the comments of f ^^^ extract from Digest, Grotius on Cicero de Officiis, i. quoted in note to p. 375, 7, referred to in note to page swpra. 45, supra. 2 p 434 PIEST PLATPOEM State whichnever had directly or by implication acknow- ledged itself to be bound by our modern International Law. Suppose, for instance, that the Sovereign of some State in the interior of Africa, which British traders and travellers had entered peaceably, were suddenly to declare war against us, and were to seize and enslave those traders and travellers. There would of course be a right for us to obtain by force their release, and to exact satisfaction for the outrage ; but other European Powers would have no right to deal with such conduct as a breach of general International Law, and to attack and aid in despoiling the African Sovereign on that account. Africa has not yet adopted the principle which forbids war to be con- Kent, sidered as giving a right to enslave captives* ; Per- sonal Slavery arising out of forcible captivity still exists there as a normal institution. Conceding to the African (as we must do) the strict right to seize and detain enemy- subjects, we concede to him the right to make slaves of them also. But the case becomes widely different when we suppose the right of seizure and detention to be exercised by a European Power,- or any person that is within the pale of modern Inter- national Law, such as that Law has grown up among nations of European origin. " Throughout Christen- dom the old harsh rule has been exploded, and War is no longer considered as giving a right to enslave captives"!. Even the practice of selling into foreign * See passages from Kent, f See judgment of Marshall, Marshall, and others, cited in C. J., cited sw^jra, in note to nctes to p. 275, supra. p. 276. See also notes to p. 262 OF INTEENATIONAL LAW. 435 servitude, or of employing in compulsory hard labour at home, vanquished combatants who have been made prisoners in actual warfare, has ceased for more than two centuries*. To reanimate and to reintroduce into the civilized world any of the long-expired pollu- tions of Slavery, under the pretence of exercising a right of warfare, would, I apprehend, be regarded as a treason against humanity and civilization, and as a breach of International Law, which all would regard as a Positive Law in every sense of the word, technical as well as colloquial. 437. I have not paused here to explain or to As to seizure 4. r :T • T ■^ o >i • ^ • "'^^ embargo set forth m detail a State s clear right to seize and of ships and to confiscate enemy-ships and their cargoes found "^"^ in its territorial waters at the outbreak of a War. The Government usually seizes by way of embargo, and then proceeds to confiscate by the action of its Admiralty Courts. No one has ever suggested that any special legislation or declaration of the will of the governing body is necessary to authorize the and p. 272. Montesquieu, Es- la necessite de le tuer, puis- ^rit cles Lois, livre xv. ch. ii., qu'il ne I'a pas fait. Tout le refers to opinions that " Le droit droit que la guerre peut donner des gens a voulu que les prison- sur les captifs est de s'assurer nierafussentesclaves,pourqu'on tellement de leur personne, ne les tuat pas." He then says qu'ils ne puissent plus uuire. of them, " Cesraisons des Juris- Les homicides faits de sang- consultes ne sont pas sensees. froid par les soldats, et apres la II est faux qu'il soit permis de chaleur de Paetion, sont rejetes tuer dans la guerre, autrement de toutes les nations du que dans le cas de necessite; monde." mais des qu'un homme en a * More as to this will be fait un autre esclave, on ne stated presently, peut pas dire qu'il ait ete dans 2 F 2 436 PIEST PLATPOEM exercise of this right. Great care is taken by the American Judges in the case, so often referred to, of "the ship Emulous" and "Brown v. The United States," to guard against the supposition that they meant to call in question the State's full power to seize and appropriate property of a maritime descrip- tion under such circumstances. Yet even here the generosity of modern Statesmanship has in recent wars waived the exercise of unquestionable right. Generosity of " The Quecu of Great Britain, iipon the breaking-out in recent wai-s. of War with Russia in 1854, in ordering an embargo to be laid upon all Russian vessels that should there- after enter any British port, harbour, or roadstead, being desirous to lessen as much as possible the evils of war, directed by an Order of the same date, that Russian merchant-vessels, in any ports or places within Her Majesty's dominions, should be allowed six weeks for loading their cargoes and departing from such ports and places, and, further, should not be molested if met at sea by any British cruiser." Great Britain went even further in moderating the exercise of belligerent Right, by directing that " any Russian vessel which should have sailed from a foreign port prior to the date of Her Majesty's Order, bound to any port or place of Her Majesty's dominions, should be permitted to enter any such port or place, and to discharge her cargo and afterwards forthwith to de- part without molestation ; and that any such vessel, if met at sea by a British cruiser, should be permitted to continue her voyage to any port not blockaded." The conduct of the Emperor of the French was dis- OF INTERNATIONAL LAW. 437 tinguished by the same mildness towards Russian merchants trading in the French dominions ; and the Emperor of All the Russias reciprocated the treatment which Russian subjects had experienced in the British and French ports, by proclaiming a similar indulgence to British and French merchants trading in the ports of the Russian Empire." Sir Travers Twiss, from whom I have copied this This indui- passage, is of opinion that " the conduct of the belli- fkimaUeon gerent Powers on this occasion marks an epoch in the good faltt. ° practice of nations in regard to the exercise of belli- gerent right at the immediate outbreak of war." He considers it to have arisen from the promptings of good faith. But this argument about good faith for- bidding the seizure, when war breaks out, of things which have been brought to our territory by foreigners during peace-time has been shown to give no abso- lute immunity even to goods and chattels, or to rights over debts. To the argument that the foreigner brought his property here, or gave credit here" on trust that we should protect him, the answer is, that he did so with his eyes open to the risk incurred by him in the event of the outbreak of war ; and that, when such risk becomes a reality, there is no breach of trust on the part of the State which enforces it*. Altogether The refusal to it seems that it would not even be a breach of Comity, indulgent if any Power at the outbreak of war were to enforce breacro/ its right over enemy-ships and cargoes, instead of °'^"''''' * See note to Woolsey, p. trust put forward by Hamilton 204, sect. 118, in answer to (Letters of Camillus) in the the argument about breach of ' Federalist,' in 1795. 438 PIE8T PLATFOEM following the exceptional policy pursued by the three Belligerent Powers in the Crimean War. The excep- tion is not materially strengthened by the fact*, that the Turks and Russians (between whom war had been declared in 1853) had forborne from embargo Tho ottoman and seizure of each other's merchant-vessels. If a Turks set the i • i • n ■ ■ ^ ■ first example ncw epoch lu the practicc 01 nations in this respect has really been introduced, the policy or the impolicy of having inaugurated it must be credited to the Ottoman Turks. The Turkish Declaration of War against Russia dated October 4, 1853, after directing that the Russian agents must quit the Ottoman domi- nions and that commercial relations be suspended, contains the following sentences : — " The Sublime Porte, however, does not consider it just that, agree- ably to ancient usage, an embargo should be laid on Russian merchant-vessels. Accordingly they will be warned to proceed within a period to be fixed here- after to the Black Sea or to the Mediterranean, as they may choose." 438. I have gone through this discussion as to whether any of the restrictive rules of doing harm in warfare can be in their nature considered as having the Sanction of Physical Force, when speaking of what occurs or may occur at the outbreak of hostili- ties. I shall have occasion to revert to it when speak- ing of the Laws of War during hostilities. The Principle, which I have ventured to maintain, is, that though in general the breach of the restrictive rules of Warfare amouiits to no more than a breach of * Halleek, p. 364. Hertslett's Treaties, vol. ii. p. 1176. OF INTERNATIONAL LAW. 439 Comity, or, at the worst, of Moral Law, there may be outrages committed by Belligerents, which are to be treated as breaches of Positive Law, and in which the punitive or restrictive intervention of Third Powers is justifiable and laudable. It has been already repeatedly stated that the out- Who are en- •i I- •! _ titled to take break of War places all the members of each bellige- part in hosti- . . . . ... lities? rent community in a condition of hostility with all the members of the other hostile nation. It is equally certain that this does not give license to all the mem- bers of either community to begin destructive or pre- datory attacks on the persons or property of the enemy. The general authority to use violence, which Howtointer- " T\ ^ ■ -\ir •!• f -tin pret the general common Declarations or Manifestoes oi War put authorifyfor violciicc wtiicli forth by the Sovereign Power in the State purport to is given by an bestow, must (in the case of a civilized State) be in- ciaration or , . 1 . . 1 « i ii 1 n c Manifesto of terpreted with reference to the laws and usages ot war. modern International Law*. This limitation is some- times set out in the Declaration or Manifesto itself. This is done (I believe) most fully in the Declaration of War issued by the Spanish Government against Trance, dated Seville, 23rd of April, 1823. The Precision of „ . . , „ . . . „ the Spanish Spanish Sovereign there says (after reciting the fact Declaration of of the invasion of Spain by a French army), " I have France in resolved to declare War, as in fact I now do declare it, against Prance. Wherefore I charge and command aU the competent authorities to carry on hostilities by sea and by land against Prance, with all the means in their power consistently with the law of nations "■\. * See Vattel, liyre iii. sect. f Hertslett, p. 697. 226, 227, 228. 440 FIEST PLATFOEM Wlieaton cited. Consider first the case of hostile opera- tions between regular forces on both sides. Poison and assassination forbidde The use of them "would justify inter- position by third States. Not to multiply authorities needlessly, I will set out and adopt what is laid down by Wheaton on this subject. He says that those hostilities only are inter- nationally lawful " which are carried on by those who are authorized, either expressly or by implication, by the State. Such are the regularly commissioned naval and miHtary forces of the nation, and all others who are summoned to its defence, or who are spontaneously defending themselves in case of urgent necessity without any express authority to that effect"*. This last part of Wheaton's rule is very important, as we shall see when we come to consider the rights and duties of the inhabitants of invaded districts. 439. To take the simplest case first, we will begin with the rules of warfare as waged among civilized nations by the regularly commissioned naval and military forces of one Belligerent State against the regularly commissioned naval and military forces of the other Belligerent State. We have already seen that among the means of doing injury to an enemy there are several which have been regarded as unlawful from, at least, the Roman timesf. Such are poison and assassination. Vattel gives it as his clear judgment that the resort to these execrable practices would entitle and require all na- tions to regard those guilty of them as common * Wheaton's 'Elements.' sect. 15, 18, &c. Vattel, livre Quatrieme Partie, eh. ii. tome iii. ch. viii. sect. 155. Mar- ii. p. 8. tens, p. 281. t See Grotius, lib. iii. c. iv. OP INTEENATIONAL LAW. 441 enemies of the human race, and to unite their forces in order to repress such enormities*. It has also As to poi- , 111 1 -i- PIT Boning or ob- been always held to be a violation of the Laws structingsup- of War to poison fountains and other supplies of water, though they may be otherwise rendered useless or obstructed f . Martens adds that " it is Spreading also against the laws of war knowingly to send among tUseases.'^ the enemy persons attacked with the plague, or any other contagious disease "| . The same prohibition has long been considered by all civilized nations to extend to the use of poisoned weapons. There have been of As to poisoned late years International agreements entered into be- a« to impie- tween nearly all the chief powers of the civilized world, fare which are with a view of preventing the use of implements of torture and warfare which inflict unnecessary torture and destruc- merely t"dis- tion on enemies — that is to say, which are calculated further°ron- to do your adversary more personal harm than is ^^'^^' required for the legitimate purpose of disabling him tion of st. from continuing the conflict with you§. As Vattel vattei cited. puts the question, " II faut bien que vous frappiez votre ennemi, pour surmonter ses efforts : mais s'il * Vattel, sect. 155, near tte which uselessly aggravate the end. sufferings of disabled men, or t Grotius, lib. iii. ch. iv. render their death inevitable." sect. 16, 17. Martens, p. 281. This Convention was agreed to J Martens, p. 281, note, by aU the European Powers Blnntschli, p. 314. except Spain ; and it was also § Seein3Hertslett,p. 1860, signed by the representatives the Convention of St. Peters- of Persia and of Turkey, burg of 11th Dec. 1868, re- The conventions respecting nouncing the use of explosive the treatment of wounded projectiles below a certain enemies, and similar topics, wiU weight. The recital repro- be spoken of presently, bates "the employment of arms 442 F1E8T PLATPOEM As to right to quarter. Roman prjic- tice. Modern prac- tice. est une fois mis hors de combat, est-il besoin qu'il meurt inevitablement de ses blessures ? "* 440. As we have seen, according to the strict old rules of Roman warfare, the conqueror had full right to take the lives of the conquered ; but if he once spared and received them as prisoners of war, it was regarded as a breach of the laws of war to slaughter them wantonly afterwards. A milder system has long grown up and been recognized among civilized nations. The modern theory and practice are well stated by Martens, in a passage which I will quote. General prin- " From the momcut wc are at war all those who from^Martens. bclong to the hostilc State become our enemies, and we have a right to act against them as such ; but our right to wound and kill being founded on self-defence, or on resistance opposed to us, we can with justice wound or take the life of none except those who take an active part in the war ; so that (1) children, old men, women, and in general all those who cannot carry arms, or who ought not to do it, are safe under the protection of the Law of Nations, unless they have exercised violence against the enemy; (2) re- tainers to the army, whose profession is not to kill or directly injure the enemy, such as surgeons, chaplains, and, to a certain degree, drummers, fifers, trum- petersf, &c., ought not to be killed or wounded deliberately J (3) soldiers, on the contrary, being looked upon as ever ready for defence or attack, may * Vattel, livre iii. ch. viii. sect. 156. t These last three excep- tions are by no means so clearly right as the two first-men- tioned ones. OV INTEENATIONAL LAW. 443 at any time be wounded or killed, unless when it is manifest that they have not the will or have lost the power to resist. When that is the case, when wounded, surrounded, or when they lay down their arms and ask for quarter — in short, from the moment they are reduced to a state in which it is impossible for them to exercise further violence against the con- queror, he is obliged, by the Laws of War, to spare their lives; except, however, (1) when sparing their lives be inconsistent with his own safety ; (2) in cases where he has a right to exercise the talio or to make reprisals, when the crime committed by those who fall into his hands justifies the taking of their lives "*. 441. The authorities on the subject are numerous ; and there is little, if any, discrepancy between them. I shall chiefly adopt the words of General Halleck, who combined the theoretical and practical qualifi- cations of Soldier, Statesman, and Juristf. " As the right to kill an enemy in war is applicable Haiieck only to such public enemies as make forcible resis- '^"° ^ ' tance, this right necessarily ceases so soon as the enemy lays down his arms and surrenders his person. After such surrender the opposing belligerent has no power over his life, unless such new rights are given * Martens, p. 282. sect. 578 ; Calvo, vol. i. p. ■f Reference may be made to 110. (inter alios) Yattel, liv. iii. ch. There is a remarkable pas- viii. sect. 139, 140 ; Montes- sage in Mr. Kinglake's ' His- quieu, Esprit des Lois, Uv. x. tory of the Crimean War,' vol. ch. iii., and liv. xv. ch. ii. ; i. p. 278, as to the " grada- Wheaton's ' Elements,' pt. iv. tions by which slayers of van- ch. ii. sect. 2 ; PhilUmore, vol. quished men may be distin- iii. p. 143 ; Bluntschli, p. 326, guished." 444 FIEST PLATFOEM When is the Right to Quarter lost ? Injustice of the enemy's cause not enough. Case of enemy's gene- ral refusal to grant quarter. Conduct of the British in the Revolu- tionary War, after the French Con- vention had ordered their armies to give no quarter. by some new attempt at resistance. By the present rules of International Law quarter can be refused the enemy only in cases where those asking it have for- feited their lives by some crime against the conqueror under the laws and usages of war "*. 443. What are the crimes against the modern law-code which thus deprive unsuccessful combatants of the normal right to quarter ? The question is pro- bably not susceptible of an exhaustive answer. But it is of too much practical importance to be passed over. The refusal of qiiarter certainly cannot be justified by our assertion, however sincere, that the enemy has been fighting in an unjust causef . More definite reasons are necessary; and they must be reasons based on the adversary's conduct of the war, and not on his having entered into the War. If the enemy's Government or the commanders of their forces have given general orders to refuse quarter, the prevalent opinion seems to be, that such a general order, even if executed, does not justify us in retalia- ting by similar atrocity. Certainly all writers concur in eulogizing those who in such a case continue to grant quarter J. Thus, not only English but foreign historians give merited praise to the Duke of York for his conduct in this respect when commander of the * P. 429. t " On ne peut jamais refu- ser de faire quartier k rennemi sous la pretexte qu'on est con- vaincu de I'mjustioe de la cause qu'il soutjent" (Blunt- sohli. p. 328). It is unneces- sary to multiply quotations from authorities on a point as to which there is no dispute. t " If the enemy refuses to shape his conduct by the milder usages of war, and adopts the extreme and rigorous principles of former ages, wo may do the same ; but if ho exceeds these OF INTEENATIONAL LAW. 445 British and Allied forces in the Netherlands, in the war against the French in 1794. The National Conven- tion (which then was the sovereign power in France) issued a decree on the 30th of May in that year, that the French armies should give no quarter to Eng- lish or Hanoverians ; and another decree was put forth, wliich directed that if the hostile garrisons (called in the decree " les troupes des tyrans- coa- lisees ") of certain towns did not surrender in twenty- four hours after summons, they should be put to the sword. The Duke of York, as commander of the English and Hanoverians, replied to the first of these decrees by an order deservedly called " a noble docu- ment," in which he directed that " all French captives should be treated with the same humanity as before." The officer in command of the garrison of Conde* noHb reply of (one of the garrisons menaced by the French Govern- dmt Tonrof the menaced „ , , , T , garrisons, extreme rights and becomes General, est en droit de sacri- barbarous and cruel in his con- fier la vie de ses ennemiea a duct, we cannot, as a general sa surete et k eelle de ses gens, thing, follow and retort upon U semble que, s'il a affaire a his subjects by treating them un ennemi inhumain, qui in like manner. * * * Sup- s'abandonne souvent a de pa- pose an enemy should massa- reils exces, il pent refuser ore all prisoners of war, this la vie a qu«lques-uns des pri- would not afford a sufficient sonniers qu'il fera ; et les trai- justification for the opposing ter comme on aura traite les belligerent to do the same, siens. Mais U vaut mieux Suppose our enemy should use imiter lagenerositedeScipion," poisoned weapons, or poison &c. (Vattel, livre iii. ch. 8, springs and food, the rule of p. 142). reciprocity would not justify us * I have always thought that in resorting to the same means the conduct of that much ca- of retaliation " (Halleck, 445). lumniated body of men, Evans's "Comme un Prince, ou son Spanish Legion at L-un in 446 riEST PLATFOEM raent) issued an order of the day, which stated with equal dignity and truth, that " No nation has a right to decree the dishonour of another nation." When- ever this subject is mentioned, it ought always to be added, to the credit of the French armies and of the French people generally, that the French officers and soldiers in no instance carried these savage directions of their rulers into execution ; and on the 30th of December in the same year (being after the fall of Robespierre, St. Just, and their band of fierce fana- tics), the National Convention repealed the order to give no quarter. The repealing decree stated in its preamble (among other reasons), that the decree for- 1837, surpassed in magnani- mity and generosity that of the British troops in Holland in 1794. Don Carlos (against whom the British force under General Evans was, with the sanction of their own Govern- ment, aiding Queen Christina in the contest for the crown of Spain) had issued a decree (in- famous in history as the Du- rango Decree), by which the Carlist troops were ordered to give no quarter to the English auxiliaries. This decree had not been left inoperative, as had been the case with that of the French Conventioninl794; but many of Evans's men had been massacred on the battlefield in consequence of it, and many had been still more cruelly put to death in cold blood some days after their capture. On the 15th of May, 1837, the British Legion fought a desperate and sanguinary action with the Carlists at Irun, from which place the Legion had previously been repulsed with severe loss. The English at last prevailed, and a large number of the Car- lists were cooped up and sur- rounded by the victors in the town-hall and market-place of Irun. 'No quarter was ex- pected by the Carlists ; it was asked for by very few, but it was given to all. General Evans and his officers exerted themselves nobly and success- fully to restrain the natural rage of their men against such enemies, and not a single Car- list's life was sacrificed after resistance had ceased. OF INTEENATIONAL LAW. 447 bidding quarter was " contrary to the Law of Nations and the Laws of War." 443. If any particular troop, or corps, or garrison. As to a corps or ship's crew have, when successful, refused to grant gives no quarter, or if they have, by hoisting the black flag, "^"^^ ^^' or other raeans announced their intention to refuse it, they unquestionably forfeit all right to it for them- selves. The same is the case where the vanquished troop, corps, garrison, or crew has, as a body, been guilty of very atrocious massacres, or treacherous cruelties, or violation of terms of truce or surrender, or of parole. But even here means should be taken, if possible, to distinguish between degrees of guilt ; and it is just as well as humane to treat the common soldiers, who acted under orders, difierently from their leaders and officers who gave such orders*. * Bluntschli, p. 327. " Un to declare that it will not give, corps d'armee n'a pas le droit and therefore will not expect de declarer qu'il ne fera ou quarter. n'acceptera pas de quartier. Ce " All troops of the enemy serait un vrai assassinat. Les known or discovered to give no troupes qui declarent ne pas quarter in general, or to any vonloir faire de quartier, re- portion of the army, receive noncent par Ik k ce qu'U none. lour soit fait quartier a elles- " Troops who fight in the memes." uniform of their enemies with- Lieber, in the Instructions out any plain, striking, and which he drew up for the uniform mark of distinction American armies, directs as of their own, can expect no follows : — quarter. " It is against the usage of " The use of the enemy's modern war to resolve, in hatred national standard, flag, or other and revenge, to give no quarter, emblem of nationality, for the No body of troops has a right purpose of deceiving the enemy 448 FIRST PLATPOEM As to indivi- duals who have atroci- ously Yiolated the Laws of War ; and as to Deserters. 444. With regard to putting to death individuals who have been personally guilty of such crimes and offences, the case is clearer still. So also " fugitives and deserters found by the victor among his enemies are guilty of a crime against him ; and he has an un- doubted right to punish them, and even to put them to death. They are not properly considered as mili- tary enemies, nor can they claim to be treated as such ; they are perfidious citizens, who have committed an in battle, is an act of perfidy, by which they lose all claim to protection by the laws of war. " Quarter having been given to an enemy by American troops, under a misapprehen- sion of his true character, he may nevertheless be ordered to suffer death if, within three days after the battle, it be dis- covered that he belongs to a corps which gives no quarter." Among the Kules recom- mended by the Committee at the Brussels Conference are the following ; — " Art. 12. The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy. " Art. 13. According to this principle are strictly for- bidden — • (a) The use of poison or poisoned weapons. (6) Murder by treachery of individuals belonging to the hostile nation or army. (c) Murder of an antagonist who, having laid down his arms, or having no longer the means of de- fending himself, has sur- rendered at discretion. (d) The declaration that no quarter will be given. (e) The use of arms, projec- tiles, or substances [}»«- tUres] which may cause unnecessary suffering, as well as the use of the projectiles prohibited by the Declaration of St. Petersburg in 1868. (/) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Con- vention." OP IJSTTEENATIONAL LAW. 449 offence against the State ; and their enlistment with the enemy cannot obliterate that character, or exempt them from the punishment they have deserved. They are not protected by any compact of war, as a truce, capitulation, cartel, &c., unless specially and particu- larly mentioned and provided for. They are not military enemies in the general meaning of that term ; nor are they entitled to the rights of ordinary prisoners of war, either under the law of nations, or by the general terms of a special compact or agreement. But where stipulations of amnesty are introduced into such com- pacts in such terms as to include such fugitives and deserters by fair and proper intendment, good faith requires that all promises of this kind be honestly and fairly carried into effect. A violation of such agree- ments is infamous. Amnesties of this character are very common where the principal war is accompanied with insurrections and civil commotions, involving questions of personal duty and allegiance "*. 445. There has been as to these things little or no discrepancy between recent and more ancient usages. I come now to a matter as to which modern practice has been greatly changed from that which formerly prevailed, and which. was thought by high authorities, even so late as the present century, to be permissible. 446. "It was an ancient maxim of war that a Old denial of weak garrison forfeits all claim to mercy on the part weak garrison of the conqueror when, with more courage than pru- profonged ^ dence, they obstinately persevere in defending an ill- fortified place against a large army, and when in re- * HaUeck, p. 443. 2 G 450 PIEST PLATFOEM Sueh practices now con- demned. Vattel's authority. Case of garri- son that re- fuses to sur- render and stands an assault after a practicable breash has been made. fusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are finally unable to resist. But though sometimes practised in modern warfare, it is generally condemned as contrary to humanity and inconsistent with the principles which amongst civi- lized and Christian nations form the basis of the laws of war." I quote from General Halleck*, who, in writing this, was chiefly following Vattel. Vattel, in the 3rd book of his workf , expresses his surprise that such a barbarous rule of war should ever have been thought of ; but he attests its prevalence in the century before that in which he was writing ; and he adds that it was not universally regarded as false and unjust even in his own day. He rightly rejects the pretext on which it was sometimes sought to justify such severities, namely the allegation that the obstinate defence of a fortress, especially of a weak one, only causes a waste of bloodshed. As he truly observes, " that defence may save the State by arresting for a time the progress of the enemy ; and, moreover, the valour of the garrison may make up for the deficiency of the works." 447. There is a special case, arising out of the inci- dents of a siege, in which, according to some authorities, the garrison forfeit the now customary right to quarter. It is when the operations of the besiegers have been so far successful that a practicable breach has been effected in the defences of the body of the place, so that an assault may be made on it with reasonable certainty * P. 440. t Chap. 8, sect. 143. OF INTEENATIONAL LAW. 451 of success, according to fair engineering and military calculations. If the garrison then reject a summons to surrender, and determine to stand the chances of an assault, they must (in the opinion of some high au- thorities) stake'their lives on the event ; and they have no right to throw down their arms and claim quarter, if the breach is once victoriously surmounted by the columns among which they have been dealing down slaughter during the desperate struggle by which a well-contested siege is usually terminated. It is to be remembered that while the assault is proceeding the fire of the besiegers is almost always unavoidably suspended*, and the defending soldiery fight in com- parative security. Quarter is said to have been refused after successful assaults to garrisons under such cir- cumstances in several sieges during the present century; and there is a State-paper by the Duke of Wellington, Opinion of in which he speaks of such refusal as justifiable, and WeUington. he mentions instances in which he might himself have mor? generous practised it, though it is gratifying to be able to add ^^^^'^^ that he forbore to do so. For, clearly, the same prin- ciple which justifies the commandant of an originally feeble fortress in defending it, gives also a justification to the commandant of a fortress which has been enfeebled by the besiegers' fire, in prolonging his resistance to the utmost. It is the principle of doing his duty to the The Rule of ^ ^ ° ■' Merer is the utmost in order to repel, or at least to retard, the true rule. hostile progress of his country's enemies. And it is to be remembered that assaults on fortified places, * What happened at the 1813 is almost a solitary ex- second siege of St. Sebastian in ception. 2 g2 452 PIEST PLATFOEM What persons are liable to be treated as Prisoners of War. Lieber's Definition. however ably the engineers and artillerists may have breached the works, and however boldly the infantry columns may follow their forlorn -hopes in the rush upon their expected prize, are not unfrequently re- pulsed ; and the repulse may save the fortress. To go no further than the Peninsular War itself, our forces were defeated in their first assault on St. Sebastian. At Burgos in 1812 we made no less than five unsuccessful attacks ; and the Duke was finally obliged to abandon the siege and retreat*. 448. We have considered the subject of what persons have a right to be treated as Prisoners of War ; it remains to consider what persons are liable to be so treated. It is a liability extending beyond those who are members of the military and naval forces. According to Lieber (whose authority as to the * The paper to whicli I re- fer is a letter from the Duke of Wellington to the Eight Hon. George Canning, dated London, 3rd Feb. 1820. Itis published in the third series of the Wel- lington Despatches, vol. i. p. 80. It is as foUows : — " I believe it has always been understood that the defenders of a fortress stormed have no right to quarter ; and the prac- tice, which has prevailed during the last century, of surrendering a, fortress when a breach was opened in the body of the place and the counterscarp was blown in, was founded upon this un- derstanding. Of late years, however, the French have availed themselves of the. hu- manity of modern warfare, and have made a new regulation, requiring that a breach should stand one assault at least. The consequence of this regulation was to me the loss of the flower of the army in the assaults of Ciudad Eodrigo and Badajos. I certainly should have thought myself justified in putting both garrisons to the sword ; and, if I had done so to the first it is probable that I should have saved 5000 men in the assault of the second. I mention this OP INTEENATIONAL LAW. 453 laws of actual warfare I regard as tlie very highest*), " A Prisoner of War is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation. All soldiers, of what- ever species of arms, all men who belong to the rising en masse of the hostile country, all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are here- inafter provided for, all disabled men or ofiicers on the field or elsewhere, if captured, all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such are exposed to the in- conveniences as well as entitled to the privileges of a prisoner of war. Moreover citizens who accom- pany an army for whatever purpose, such as sutlers, editors or reporters of journals, or contractors, if cap- tured, may be made prisoners of war and be detained as such. in order to show you that the one assault on the hody of the practice of refusing quarter to place by practicable breaches." a garrison which stands an as- Quoted in Mr. Sutherland Ed- sault is not a useless effusion of wards's book, ' The Germans in blood." France,' p. 180. According to the French The subject of allowing sol- Articles of "War, " The Mih- diery to sack a captured town tary Law condemns to capital will be spoken of presently, punishment every commandant when we are considering the who gives up his place without ■ liabilities and rights of Non- having forced the besiegers to Combatants, pass through the slow and sue- * See a brief biographical cessive stages of a siege, and notice of Lieber in the note to before having repulsed at least page 81, supra. 454 FIEST PLATFOEM "The monarch and members of the hostile reigning family, male or female, the ^hief and the chief officers of the hostile Government, its diplomatic agents, and all persons who are of particular and singular use to the hostile army or its Government, are, if captured on belligerent ground, and if unprovided with a safe- conduct granted by the captor's Government, pri- soners of war." 449. With respect to the treatment of prisoners of war, I have in a preceding chapter* spoken of the * See p. 273 supra et seq. and notes. Mr. Dudley Field, in his ' Outlines of an International Code,' p. 516, mentions inter alios the following as " per- sons who may be taken pri- soners :" — those who are con- nected with the operations of the military forces, whether with or without the authority of the State ; the sovereign or the chief executive ofiicer of the enemy or his allies ; ofScers of the civil government of the enemy, whose functions di- rectly subserve a military pur- pose, and persons of whatever character found on the field of battle" [of course, surgeons and other attendants on the wound- ed would be exempt]. Blunt- schli " (p. 340, sect. 684, 2) states that " On a le droit d'arreter les personnes qui, sans appaitenir k I'arme'e et tout en remplissant des fonctions paci- flques, sont dangereuses pour les troupes d'occupation : ainsi les journalistes, dont les opi- nions sont hostiles, les chefs de parti pourront etre faits prison- niers, au meme titre que les ofilciers de I'armee, parce qu'ils augmentent la somme des forces dont I'eDnemi dispose, et pre- parent des difficult^s ou des embarras aux autorites mili- taires. Les opinions manifeste- ment hostiles autorisent a s'em- parer de la personne de ceuxqui les professent. Les non-com- battants attaches a I'armee, et meme les personn^es qui suivent I'armee sans en faire partie (correspondants de journaux, fou.rnisseurs, etc.), peuvent etre faits prisonniers, lorsque le corps, auquel ils se sont joints, est fait prisonnier, ou lorsqu'on s'empare d'eux pendant une poursuite. En se joignant h un corps d'arme'e, ces personnes courent les memes dangers que lui, et ne peuvent pas re'clamer si elles sont traitees en ennemis, — provisoirement du moins, — OP INTEENATTONAL LAW. 455 old stern principle of the antique code of war, accord- Reference to ing to which the captive was regarded as the lawful rules as to booty of the victor, who had spared the life forfeited to^sky^Jr^to by defeat, and which universally sanctioned the deten- tion of prisoners of war as slaves, or their sale as slaves for the pecuniary benefit of the conquerors. It has been stated also (in the words of the American Chief Justice Marshall) that "throughout Christen- dom this harsh rule has been exploded, and War is no longer considered as giving a right to enslave captives." But it has been mentioned also that in many parts of the world the old theory and practice in this respect continue, and that when cases come before the tribunals et si on les fait prisonniers. On n'est ce pendant antorise k les retenir en qualite de prison- niers de guerre, que lorsque leiir pre'sence dans le camp ennemi constitue un appui pour ce dernier, et un danger pour la puissance qui les a captures. L' Art. 50, des instructions Ame- ricaines accord©, par eontre, aux autorites militaires le droit de s'emparer de ces personnes. Ces principes seront speciale- ment applicables aux employes de Tadministration de I'armee ennemie et parfois aussi aux correspondants de journaux etrangers. "Les souverains et les per- sonnes revetues d'un caractere diplomatique peuvent etre faits prisonniers de guerre, s'ils dependent de la puissance en- nemie ou de ses allies, ou s'ils ont personnellement pris part aux operations militaires. La capture du souverain ennemi ou du ministre des affaires etran- g^res est souvent un moyen heureux d'obtenir prompte- ment ime paix favorable. 11 n'existe pas de motif de re- mettre ces personnes en liberie; comma ce sont elles qui ont amene, ou tout aux moins de'- cide la guerre, U est juste qu'on les en rende responsables et qu'elles en partagent les dan- gers. Les chefe politiques et les pre'fets des provinces seront egalement plus expose's au dan- ger d'etre faits prisonniers que les employe's administratifs in- ferieurs, les juges,les conseillers municipaux ou les institu- teurs." 456 PIEST PLATFOEM The old prac- tice of com- pelling war- oaptivos to pay ransom. of civilized European States and of States formed by European colonists as to the exercise of this old right to make War the parent of Slavery, the legal right to do so is still reluctantly admitted when it has been en- forced by nations vpho have never renounced that right by treaty and have not generally adopted the modern International Lavp of Christian Europe and of Euro- peanized America*. Another practice which was almost universal in Europe (as well as in other regions) dui'ing the times which we are accustomed to regard as the brilliant ages of chivalry, is now rejected as barbarous and iniquitous, and as fitted only for brigands and pirates. I mean the custom according to which the captor of a prisoner of war was held to have a right to exact ransom from his captive, and could sell his right to ransom and his right to imprison the living pledge till the money was paid ; so that war-captives became marketable commodities, and the hope of obtaining them operated as no slight motive in inducing valorous knights and barons bold to approve of a war, and to render personal service in a campaign. In this, as in many other matters, we may adopt the words of Sthene- lus in the Iliadf, and assert that we are better than our Many may be surprised to find, down to how sires. late a period war-captives have been sold into servi- tude, or imprisoned and kept to painful and debasing * See tie American case of tie ' Antelope,' Wheaton, S.C. Reports, p. 120, cited in note to page 275, supra. t 'Hfieh Tui Trarepbtv fiiy afieivoves ev'j^oned' elrat. OF INTEENATIONAL L^W. 457 labour by States that boasted most highly of their refinement and civilization*. Vattel has in this, as in many other matters, the honour of having been the first to point out clearly the true and just principle that ought to be followed. He says, "One has the right to make sure of the safe custody of prisoners, and for that purpose to con- fine them, and even to use bonds, if there is cause for True princi- ple of treat- ment of pri- soners of war set forth by Vattel. They are to be detained for security, not for punish- ment. * The rules and practices as to ransoms of prisoners are fully described by Mr. Plumer Ward in his ' Treatise on the Law of Nations as existing be- fore the time of Grotius.' With respect to the late date, down to which oppressive severity to- wards Prisoners of War was practised, I will refer to Man- ning's ' Law of Nations ' (late edition by Professor Sheldon Amos, p. 216), and Sir Travers Twiss in his ' Law of Nations,' 2nd edit. p. 361. " Notwith- standing the mitigating influ- ences which the profession of the same religion by both the belligerent parties, and more especially the profession of the Christian religion, has been found in practice to exercise over the conduct of hostilities, it has been foiind necessary, within so recent a period as the commencement of the 17th century, to stipulate by treaties that prisoners of war should not be detained as gaUey-slaves after the war had tenninated. Thus it was stipulated in the Treaty of 1604, between Eng- land and Spain, that prisoners of war on either side should be released, although they had been condemned to the galleys. An article in similar terms was introduced into the Treaty of 1630 between England and Spain. It would appear from the 101st article of the Treaty of the Pyrenees, concluded in 1659 between Prance and Spain, that at that time the practice of condemning pri- soners of war to the galleys was not altogether abandoned. This practice, however, was evidently becoming obsolete be- fore the conclusion of the 17th century ; for we find that when Count Solmes, who was serving under William of Orange ia Ireland in 1690, threatened to deport his prisoners as slaves to America, the Duke of Berwick threatened to retaliate by send- ing his prisoners to the galleys in France. Byntkershoek, in commenting on the conduct of 458 PIEST PLATFOEM Agreement of modern autho- ritiea that Prisoners of War may be required, under certain conditions, to work for their own support. fearing they will rise on you or that they will attempt an escape ; but nothing can justify the infliction of harsh treatment on them, at least unless they commit some act of personal culpability towards those who have them in their power"*. With respect to modern customary Law on the subject, I will continue to quote Lieber (as, in general, the highest single authority), adding extracts from, or giving references to, others when necessary. It will be seen that there is a general concurrence of recent authorities as to the lawfulness of compelling prisoners of war to work for their maintenance if their own the Dutch, in 1602, in libera- ting certain prisoners of war whom their friends wonld not ransom, observes that it vrould have been foreign to the man- ners of that age (moribus, quce nunc freqitentantur, alienum) to have put them to death, or to have sold them as slaves, al- though he remarks that the Dutch are accustomed to sell as slaves to the Spaniards all prisoners of war belonging to Algiers, Tunis, or Tripoli, and that the States-General had ordered their Admiral in 1661 to sell as slaves all pirates whom he might capture at sea. From a proclamation of Charles I., of 23rd of July, 1628, we may infer two facts : — first, that a practice of exchanging prisoners during war was grow- ing up ; and secondly, that the private interest of the actual eaptor in his prisoners had not been entirely divested at that time, as we find all prisoners brought into the kingdom by private men were to be kept in prison at the charge of the captors until they should be delivered by way of exchange or otherwise.'' * Livre iii. chap. 8, sect. 150. In sect. 163 he categori- cally disproves the right to enslave them. In sect. 154 he condemns the claim of the captors to exact ransom. See also Montesquieu, De VEsprit des Lois, livre xv. chap. 11, " Tout le droit que la guerre pent donner sur les captifs est de s'assurer tellement de leur personne, qu'ils ne puissent plus niiire." OF INTEENATIONAL LAW. 459 State fail to supply the means for maintaining ttem, which most writers, from Vattel downwards, consider that it ought to do. It is stated in some memoirs of Na- poleon that doubts were expressed by certain French Jurists, as to the international lawfulness of a design which the Emperor once formed of allotting some of his numerous war-captives to the French landowners and farmers as agricultural labourers. And undoubt- Need of strict 11 ., 1 . . PIT n preeautions in edly the compulsory exaction ot labour irom war- praotiBing this prisoners may be made the instrument of great op- "^ pression, and of the gratification of malignant and avaricious feelings on the- part of their custodians, unless strict and generous caution is exercised in en- forcing no kind of toil which is usually regarded as degrading or which is specially loathsome, and also unless regard is paid to the rank and previous social station of each prisoner. But if these precautions are duly attended to, there seems to be no objection to requiring a captive to work for his own support. The The oppor- opportunity to work should always, when practicable, workfng be given. The profits of the work, when not required le°o3%^.^^^ for the worker's subsistence, may be properly em- tohavrthe'"^ ployed for the provision of comforts for him beyond J^'fedf ot^ the prison allowance, or in forming a fund, of which ^"o"^'''''^ he will have the benefit if set free by exchange during the war, or when liberated by mutual release of pri- soners on the conclusion of peace. It has been truly said, that not even the battlefield with its heaps of the dying and the dead, is a sadder spectacle than are military gaols and prison-hulks with their hundreds and thousands of human beings confined in compul- 460 PIEST PLATPOEM sory inaction, in all the miseries and evils, moral as well as physical, which such a state of existence en- genders. Lieber's rules. Lieber lays down the rules as to the treatment of Prisoners of War as follows : — " A prisoner of war is subject to no punishment for being a public enemy ; nor is any revenge to be wreaked on him by the in- tentional infliction of any suffering or disgrace by cruel imprisonment, want of food, by mutilation, death, or other barbarity. " A prisoner of war remains answerable for his crimes committed against the captor's army before he was captured, and for which he has not been punished by his own authorities. " All prisoners of war are liable to the infliction of retaliatory measures. " A prisoner of war, being a public enemy, is the prisoner of the Government and not of the captor. No ransom is to be paid by a prisoner of war to his individual captor or to any officer in command. The Government alone releases captives, according to rules prescribed by itself. " Prisoners of war are subject to confinement or imprisonment, such as may be deemed necessary on account of safety ; but they are to be subjected to no other intentional suffering or indignity. The confine- ment and mode of treating a prisoner may be varied during his captivity, according to the demands of safety. "Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity. O]? ESTTEENATIONAL LAW. 461 " They may be required to work for the benefit of the captor's Government, according to their rank and condition. " A prisoner of war who escapes may be shot or otherwise killed in his flight ; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape. " If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspira- tors may be rigorously punished, even with death ; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow- prisoners or other persons. " If prisoners of war, having given no pledge nor made any promise on their honour, forcibly or other- wise escape, and are captured again in battle, after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement. " Every captured wounded enemy shall be medi- cally treated according to the ability of the medical stafi". " Honourable men when captured will abstain from giving to the enemy information concerning their own army ; and the modern law of war permits no longer the use of any violence against prisoners in order to 462 FIEST PLATFOEM Eules pro- posed at the Brussels Conference. extort the desired information, or to punish them for having given false information "*. The 23rd, 24th, 25th, 26th, and 27th Articles of the Rules recommended by the Committee at the Brus- sels Conference declared that " Prisoners of war are lawful and disarmed enemies. They are in the power of the enemy's Government, but not of the individuals or of the corps who made them prisoners. " They should be treated with humanity. " Every act of insubordination authorizes the neces- sary measures of severity to be taken with regard to them. "All their personal effects, except their arms, are considered to be their own property. " Prisoners of war are liable to internment in a town, fortress, camp, or in any locality whatever, under obligation not to go beyond certain fixed limits ; but they may not be placed in confinement {enfermes) unless absolutely necessary as a means of security. "Prisoners of war may be employed in certain public works which have no immediate connexion with the operations on the theatre of war, provided the employment be not excessive nor humiliating to their military rank, if they belong to the army, or to their official or social position. " They may also, subject to such regulations as may be drawn up by the military authorities, undertake private work. " The pay they receive will go towards ameliorating * Lieber's ' Instructions for the American Armies.' OF INTERNATIONAL LAW. 463 their position, or will be placed to their credit at the time of their release. In this case the cost of their maintenance may be deducted from their pay. " Prisoners of war cannot be compelled in any way to take any part whatever in carrying on the opera- tions of the war. " The Government in whose power are the prisoners of war undertakes to provide for their maintenance. " The conditions of such maintenance may be settled by a mutual understanding between the belligerents. "In default of such an understanding, and as a general principle, prisoners of war shall be treated, as regards food and clothing, on the same footing as the troops of the Government who made them prisoners. "Prisoners of war are subject to the laws and regulations in force in the army in whose power they are. " Arms may be used, after summoning, against a prisoner attempting to escape. If retaken, he is subject to summary punishment {peines discipli- naires) or to a stricter surveillance. " If, after having escaped, he is again made prisoner, he is not liable to any punishment for his previous escape "*. The Commander of an army in the field or in * Many of these rules recom- by Hefffcer (sections 128, 129) mended at the Brussels Con- are much to the same effect, ference, but not aU, are taken So are those recommended in from Bluntschli (sections 601, Mr. Dudley Field's Interna- 602). He does not allow the tional Code, par. 804-815. infliction of punishment on a And see General Halleck, pp. Prisoner of War for an attempt 434-437. to escape. The rules laid down 464 riEST PLATFOEM siege operations, to whom enemies surrender or have surrendered, or with whom they negotiate for surren- der, may waive the right to make them actual prisoners of war, or to detain them as such ; and he may in Of releasing doing this impose conditions on them : but the prisoners on pi t • • t-i«i conditions. nature of such conditions is not unnmited. And so the State which has prisoners of war in its custody may during the war release them on conditions. The enemy, who thus avoids or is released from captivity upon conditions is, as a rule, bound to observe them ; Not every kind but it is uot cvery kind or degree of condition that is lawful. lawful and obligatory. By the very nature of all such cases the bargaining parties do not deal on equal terms. The party granting the conditions has the vantage-ground of superior power ; the party apply- ing for them is under the pressure of distress and need. This circumstance will not of itself vitiate all such contracts, on the ground of their being made Duresse alone under duressc. There is a distinction here, as in does not viti- it n j it i • j_ ate such con- other matters*, between public and private contracts, a distinction arising out of general utility. If the doctrine of the general invalidity of contracts under duresse were to be admitted into the jurisprudence of Belligerency, the powerful party would be driven to the adoption of harsh and perhaps sanguinary There is no measures, out of regard to their own security. But right to im- , • i ^ i • t • pose disho- the prevalent party has no right to impose conditions traitorous con- which are dishonourablc to those who accept them, or that are essentially contradictory to their duties to- wards their own country. The most common condi- * See p. 41, suprd. OP INTEENATIONAL LAW. 465 tion is, that the released parties shall not bear arms again against the State of their captor for some speci- fied period, or until the end of the war. The captor Usual and may lawfully impose this stipulation ; " but he cannot tions. require them to renounce for ever the right to bear arms against him ; nor can they on their part enter into any engagements inconsistent with their character and duties as citizens and subjects ; such engagements made by them would not be binding upon their sovereign or state. The reason of this limitation is obvious : the captor has the absolute right to keep his prisoners in confinement till the termination of the war ; but on the conclusion of peace he would no longer have any reasons for detaining them. They therefore have the right to stipulate for their conduct during that period, but not beyond the time when they would have been released had no agreement been entered into. Nor can the captor generally impose conditions which extend beyond the period when the prisoners would necessarily be entitled to their liberty. Beyond this their services are due to, and at the dis- position of, the State to which they owe allegiance j and they have no power to limit them by contracts with a foreign power"*. This mode of release is usually termed " Release Who may be paroled. by Parole," or " Paroling," in contradistinction to release by exchange. In general " commissioned officers only are allowed to give their Parole ; and they can give it only with the permission of their superior as long as a superior is in reach." * Halleck, p, 433. 2 H 466 riEST PLATFOEM " No non-commissioned oflficer or private can give his parole except through an officer. Individual paroles, not given through an officer, are not only void, but subject the individual giving them to the punish- ment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer. "No paroling on the battle-field, no paroling of entire bodies of troops after a battle, and no dis- missal of large numbers of prisoners with a general declaration that they are paroled is permitted, or of any value. " In capitulation for the surrender of strong places or fortified camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war unless exchanged. " The usual pledge given in the parole is not to serve during the existing war unless exchanged. Extent of the " TMs pledge refers only to the active service in serve. the field against the parohng belligerent or his aUies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death ; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belhgerents unconnected with the paroling belhgerents, or to civil or diplomatic service for which the paroled officer may be employed. OF INTEENATIONAL LAW. 467 " If the Government does not approve of the parole, the paroled officer must return to captivity ; and should the enemy refuse to receive him, he is then free of his parole. "A belligerent Government may declare, by a general order, whether it will allow paroling, and on what conditions it will allow it. Such order is com- municated to the enemy. " No prisoner of war can be forced by the hostile Paroling not Government to parole himself; and no Government either side. is obliged to parole prisoners of war, or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belli- gerent"*. 450. What has been stated as to a Belligerent Exchangee not r-, 1-11 11 1- T i compulsory. State not being bound to allow paroling, apphes to the allowance of exchanges. The increased humanity of modern war-usages creates a natural expectation that both parties to a war will concur in mitigating, as far as possible, the sufferings which it brings upon individuals and their families, and that, with a view to such mitigation, the granting of paroles and the allow- ance of exchanges will be encouraged and facilitated. But with regard to exchanges, as Vattel long ago pointed outf, there may be crises in a war, in which a bartering of captive troops would be so manifestly to the advantage of one party that the other may * Lieber's Instructions, pa- t Livre iii. chap. 8, sect, ragraphs 127 to 133. 153. 2h 2 468 FIEST PLATFOEM Commissaries for Exchange. Cartel ships. Mutual release of Prisoners at end of War. Other " Com- mercia belli." Necessity of interlocutory compacts during war- fare. reasonably, as well as lawfully, refuse to consent to it, and may decide on leaving some of its own subjects in the hands of the enemy until the end of the war, rather than regain them by recruiting the enemy's ranks when that enemy is probably in extreme necessity. But in general a fair system of exchange is willingly promoted by both sides, and for this purpose agents (or " Commissaries ") of the respective belligerent powers are allowed to reside within the territories of the opponent, and privileged ships called " Cartel " ships are allowed to ply, if requisite, between the two countries. When there have been hostilities between Christian States, the prisoners taken on both sides are now invariably released at the end of the war. A stipula- tion to this effect is generally inserted in the Treaty of Peace by which the war is formally terminated. 451. We have yet, while considering the subject of transactions by compact between belligerent troops, to consider Truces, Armistices, and some other matters usually included under the phrase " Commercia belli." I shall here follow Halleck, sometimes adopting his paragraphs, and sometimes abridging them. It is necessary to consider the proper purposes of such " Commercia," the persons who have authority to engage in them, and the usual instruments by which they are effected. 452. " BeUigerent States and their armies and fleets frequently have occasion, during the continuance of a war, to enter into agreements of various kinds — some- times for a general or partial suspension of hostilities, OF INTEENATIONAL LAW. 469 for the capitulation of a place or the surrender of an army, for the exchange of prisoners or the ransom of captured property, and sometimes for the purpose of regulating the general manner of conducting hostili- ties or the mode of carrying on the war. All these agreements, of whatsoever kind, are included under the general name of compacts or conventions. These com- pacts, which relate to the pacific intercourse of the belligerents, suppose the war to continue. " If the cessation of hostilities is only for a very short period, or at a particular place, or for a tempo- rary purpose, such as for a parley, or a conference^ or for removing the wounded and burying the dead after a battle, it is called a suspension of arms. This kind Suspensions of of compact may be formed between the immediate ^™^' commanders of the opposing forces, and is obligatory upon all persons under their respective commands. Even commanding officers of detachments may enter into this kind of compact ; but such an agreement can only bind the detachment itself ; it cannot affect the operations of the main army, or of other troops not under the authority of the officer making it. A suspension of arms is only for a temporary purpose and for a limited period. If the suspension of hos- tilities is for a more considerable length of time, or for a more general purpose, it is called a truce or an Truces and armistice. Truces are either partial or general. A partial truce is limited to particular places or to parti- cular forces, as a suspension of hostilities between a town or fortress and the forces by which it is invested, or between two hostile armies or fleets. But a gene- 470 FIRST PLATFOEM Who may authorize a general sus- pension of hostilities. "What may he done during such suspen- sion. ral truce applies to the general operations of the war ; and whether it be for a longer or shorter period of time, it extends to all the forces of the belligerent States, and restrains the state of war from producing its proper effects, leaving the contending parties and the questions between them in the same situation in which it found them. 453. " Such a general suspension of hostilities throughout the nation can only be made by the sove- reignty of the State, either directly or by authority specially delegated. Such authority, not being essen- tial to enable a general or commander to fulfil his official duties, is never implied ; and in such a case the enemy is bound to see that the agent is specially authorized to bind his principal. But a partial truce may be concluded between the military and naval commanders of the respective forces without any special authority for that purpose, where, from the nature and extent of their commands, such authority is necessarily implied as essential to the fulfilment of their official duties. If the commander, in making such a compact, has abused his trust to the advantage of the enemy, he is accountable to his own State for such abuse. 454. " During the continuance of a general truce each party to it may, within his own territories, do whatever he would have a right to do in time of peace, — such as repairing or building fortifications, construct- ing and fitting out vessels, levying and disciplining troops, casting cannon and manufacturing arms, and collecting provisions and munitions of war. He may OF INTERNATIONAL LAW. 471 also move liis armies from one part of his territory to another not occupied by the enemy, and call home or send abroad upon the ocean his vessels of war ; and in the theatre of hostilities, and in the face of the enemy he may do whatever, under all the circum- stances, would be deemed compatible with good faith and the spirit of the agreement. In the case of a truce between the governor of a fortress or fortified town and the general or admiral investing it, either party is at liberty to do what he could safely have done if hostilities had continued. Por example, the besieged may repair his material of wa>, replenish his magazines, and strengthen his works, if such works were beyond the reach of the enemy at the beginning of the truce, and if the provisions and succours are intro- duced into the town in a way or through passages which the besieging army could hot have prevented. But the besieged cannot construct or repair works of defence if he could not safely have done this in case the hostilities had continued ; nor introduce provisions, military munitions or troops through passages which were occupied or commanded by the enemy at the time of the cessation of hostilities ; nor can the besiegers continue works of attack which might have been prevented or interrupted by the besieged ; for all acts of this kind would be making a mischievous and fraudulent use of the agreement, and violating its good faith and spirit. The general meaning of such compacts is, that all things within the limits of the theatre of immediate operations shall remain as they were at the moment of the conclusion of the truce. 472 PIEST PLATFOEM "To receive and harbour deserters within such limits is an act of hostility, and therefore a violation of the complied conditions of a truce. " Where a truce is granted for a certain specified object, its effects are limited to the purpose men- tioned ; and if either party should attempt to perform any act to the disadvantage of the other, not compre- hended in the object of such truce, this other party has the undoubted right to hinder it by force, notwith- standing the compact. So, where the truce is condi- tional, and the conditions which have been agreed upon are broken by one party, the truce is no longer bind- ing upon the other. Of Passports 455. " Passports or safe-conducts are documents ducts.^^* ""'^ granting to persons or property an exemption from operations of war, for the time and to the extent pre- scribed in the instrument itself. A passport is not transferable by the person named in the permission ; for, although there were no objections in giving the privilege to him, there might be very serious objec- tions to the individual taking his place. Instruments of this kind are always to be taken strictly, and must be confined to the persons, effects, purpose, place, and time for which they are granted. Passports and safe- conducts are of two kinds ■ — those which are limited in their effects to particular places or districts of country, and those which are general and extend over a whole country. Those of the first class may be granted by military and naval officers or governors of towns, to have effect within the limits of their respective com- mands ; and such instruments^must be respected by OP INTEENATIONAL LAW. 473 all persons under their authority. The power to By whom they may be issue such documents is implied in the nature of their granted, trust ; but a general passport or safe-conduct to extend over the whole country must proceed from the supreme authority of the State, either directly or by an agent duly empowered to issue it " *. * HaUeck, pp.653, 654, 655, 657, 658, 663, 664 ; and see Lieber's Instructions, para- graphs 135 to 143. Lieber re- marks in par. 147, tbat " Bel- ligerents sometimes conclude an armistice while their pleni- potentiaries are met to discuss the conditions of a treaty of peace ; but plenipotentiaries may meet without a prelimi- nary armistice. In the latter case the war is carried on with- out any abatement." "With respect to the privileges due to the bearer of a Plag of Truce during active operations, Lie- ber's Instructions are, "The bearer of a flag of truce can- not insist upon being admitted. He must always be admitted with great caution. Unneces- sary frequency is carefully to be avoided. If the bearer of a flag of truce ofier himself du- ring an engagement, he can be admitted as a very rare excep- tion only. It is no breach of good faith to retain such a flag of truce if admitted during an engagement. Firing is not re- quired to cease on the appear- ance of a flag of truce in battle. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wound- ed, it furnishes no ground of complaint whatever. If it be discovered and fairly proved that a flag of truce has been abused for surreptitiously ob- taining military knowledge, the hearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the cha- racter of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offence, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy." The rules on this subject, recommended by the Military Committee at the Brussels Con- ference, are as follows : — " Art. 43. An individual authorized by one of the belli- gerents to confer with the other, on presenting himself vsdth a white flag, accompanied by a trumpeter (buglerordrummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He, as well as the trumpeter (bugler or drum- 474 FIRST PLATPOEM Application of 456. All these mitigating rules of warfare apply BeUigerents of Hot only to cases where the contest is between two same a . Sovereign States, but to those cases where civil war has broken out between two portions of the same Sovereign State, and to those cases also where the war has broken out between the regular Government of a country and " portions or provinces of the same who seek to throw off their allegiance to it and set up a Government of their own " *. mer), and the flag-bearer who accompany him, shall have the right of inviolability. " Art. 44. The commander to whom a bearer of a flag of truce is dispatched, is not obliged to receive him under all circumstances and condi- tions. " It is lawful for him to take all measures necessary for pre- venting the bearer of the flag of truce taking advantage of his stay within the radius of the enemy's position, to the prejudice of the latter ; and if the bearer of the flag of truce is found guilty of such a breach of confidence, he has a right to detain him temporarily. " He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. En- voyspresentingthemselves after such a notification from the side to which it has been given, for- feit their right to inviolability. " Art. 45. The bearer of a flag of truce forfeits his right of inviolability, if it be proved in a positive and irrefutable man- ner that he has taken advan- tage of his privileged position to incite to, or commit an act of treachery." * Lieber, in his ' Instruc- tions,' thus defines " Insurrec- tion," " Civil "War," and " Ee- bemon":— " Insurrection is the rising of people in arms against their Government, or a portion of it, or against one or more of its laws, or against an officer or ofiioers of the Government. It may be confined to mere armed resistance, or it may have greater ends in view. Civil war is war between two or more portions of a country or State, each contending for the mastery of the whole, and each claiming to be the legitimate Govern- ment. The term is also some- times applied to war of rebel- OF INTEENATIONAL LAW. 475 457. But there is a description of warfare into of Servile 1.1 /• ii 1 •!_• 1 i • 1-1 Insurrections which none oi the humanities and courtesies which and Military brave soldiers love to practise towards " foemen worthy of their steel," and none of the " Commercia belli " which have been dictated by a sense of common utility, can possibly enter. I mean the warfare which has en- sued when large masses of soldiery (usually mercena- ries) have mutinied against their masters, and could only be crushed into subjection by wide-spread and long- continued hostilities. Such, too, have been many wars consequent on servile insurrections. These outbreaks have almost invariably been accompanied from their very commencement by murders and other atrocities on the part of the mutineers and insurgents, which placed them out of the pale of all laws of mercy, and of all customary forbearances. The most marked instance of this hideous warfare is, in ancient history, the war The ancient .,_,.. war between of the revolted mercenaries against the Larthagmians, the Carthagi- B.c. 241, called by the Greek historian of it the their reyoited ''hanov^o? YloXeixoc, because it was a war in which ™^'''^^°'"''®^- there was no truce, no capitulation on terms, no pro- mise or hope of reconciliation, no thought on either side of sparing or of being spared. It is only paral- Our recent 1111P1 IT ^^"^ against leled in modern times by the dreadiul war that has the sepoy mutineers. lion, when the rebellious pro- tween the legitimate govem- vinces or portions of the State ment of a country and portions are contiguous to those con- or provinces of the same who taining the seat of government, seek to throw off their aUegi- The term rebellion is applied to anee to it, and set up a go- an insurrection of large ex- vemment of their own." — tent, and is usually a war be- Paragraphs 149-151. 476 FIEST PLATFORM Stern necessi- ties consequent on such wars. Who, in re- gular warfare, are to be treated as " Comba- tents ?'' raged in our own day and in our own empire — the War of tbe Sepoy Rebellion. 458. These, however, are scenes of abnormal hor- rors. We have witnessed and we have felt that a civilized State may be of necessity involved in them ; and the terrible duties which then devolve on its statesmen and its soldiers must be unflinchingly per- formed. Some ignorant or malignant foreigners, and some false sons of England (surpassing foreigners in anti-English malignity) have railed at our nation for not observing the rules of International Law in a struggle wholly beyond the domain of International Law. I will not waste space here by further allusion to such calumnies, but revert to our proper topic, to warfare within the recognized rules of Belligerency. 459. We have seen what are the limitations and mitigation of armed violence between the respective combatants. The question remains, who are to be considered combatants according to the laws of war? It is a question of equal difficulty and importance, and one which has been of late and still continues to be the theme of much consideration. We have all heard and read many discussions as to how members of bands of partisans, of Guerillas, of Eranc-Tireurs, of National Guards, of Volunteers, &c. ought to be treated by the enemy if they fall into his hands; and also much respecting the rights and liabilities of armed citizens and peasants, who take part in the general rising of the population of a country or a district, in what is commonly called a Levee en manse. The subject is closely connected with that of the OF INTEKNATIONAL LAW. 477 liability of the unresisting inhabitants of an invaded country to be pressed by the invaders into acting for them as guides, and into other services, as, for instance, in the task of burying the dead, and that of transporting stores and repairing roads. Indeed the subject of how invading armies ought to treat private persons cannot be considered without antici- pating to some extent the question of how invaders ought to treat private property, a subject to which we shall soon have in regular order to devote our attention. It will be convenient to defer for a time the con- sideration of the employment of Privateers, and of some other matters connected with maritime warfare. 460. In inquiring how far the privileges allowed Easy to deal to lawful belhgerents ought to be extended, we shall cases of lawful . ■ ii i ii 11 .or unlawful at once perceive that there are some elementary prin- Belligerency: • 1 1 , n-11 ito distinguish ciples and some extreme cases, which demand no between the lengthened notice. The primary rule, as given by zen'^andthe" Montesquieu, respecting the mode of conducting war- '^^^p^^^v^ow- fare has been already stated and commented on in the tenth chapter of this Treatise*. As it is manifestly unjustifiable, on the one hand, to massacre or to mal- treat non-militant unresisting citizens and peasants, it is, on the other hand, as clearly justifiable for an in- vading army to deal summary execution on " armed prowlers " and marauders, who hang about its flanks and rear for the purpose of surprising and killing its sick and wounded, or its straggling soldiers and small parties, or for the purpose of robbing its stores, but * P. 364, suprd. 478 FIRST PLATFOEM Difficult cases, those of Franc-Tireuva, Gruerillaa, and members of a Suggested tests of uniform, and of acting under orders of the Sove- reign GoTern- ment. who try to hide their weapons and who pretend to be harmless travellers or inhabitants, when they meet with a superior or equal force. The difficulties, which arise in practice, are as to the right of bodies of Volun- teers, of Free Corps, of Franc-Tireurs, of bands of par- tisan and guerilla combatants, and of members of a levee en masse to be treated as fair and lawful enemies, entitled in the event of capture or defeat to the for- bearances and humanities of modern warfare. 461. Various tests have been suggested as to what shall and what shall not entitle volunteer corps &c. to be recognized as lawful belligerents. The essence of these tests appears to be, that such corps must be acting under the authority of the Sovereign Govern- ment of their State, and that they must wear perma- nently some uniform, or, at least, some distinctive badge, by which their military character may be re- cognized at a reasonable distance*. But where national resistance to an invader is general and ener- getic, there will be always numerous bodies of armed men taking part in the defence of their homes and their country, who have had neither leisure nor means to provide themselves with such accoutrements as an enemy will choose to consider sufficient in martial appearance, or to get an officer with formal commis- sion from their central Government to place himself at their head. This will especially be the case when the population is scattered and the defenders consist * Field's International Code, p. 487, and authorities there cited; Lieber, sect. 81, 82 ; Eecommendations of Brussels Committee, p. 164, Blue Book. OF INTERNATIONAL LAW. 479 mainly of peasantry accustomed to the use of firearms. As might be expected, the practical result has been that invaded States call on their subjects, whether military or non-military, to rise and defend their country ; while invading armies threaten such irregu- lar defenders with severities, which are often sternly enforced, and which are followed up by sanguinary reprisals on the part of the defenders ; so that the war assumes an almost internecine character*. * Mr. Sutherland Edwards has well summed up the usual feeling about the levy en masse. " Generally it is a means for the invaded alone, and, as such, is universally condemned by invaders. It may be said that the Prussians condemned it everywhere ; but on its own territory, the Prussian, like every other Government, ap- proves and commands it. Not to speak of 1813, a general rising and arming of the local population was ordered in July 1870, when the French were expected to land on the Prus- sian coast. Would General Vogel von Falkenstein, who decreed the levy, have per- mitted, without making repri- sals, that aU members of the coast population falling into the hands of the French should be shot as brigands? Or are laws against civilians taking up arms, laws not of principle but of expediency, to be ap- plied abroad, to be ignored at home ? A remarkable conver- sation on this very subject be- tween Prince Eismarck and M. Jules Favre is reported by the latter in his ' Gouvernement de la Defense Nationale,' from which it appears that, accor- ding to M. Favre, the civilian has an absolute right to take up arms against invaders ; while, according to Prince Bis- marck, ' armed men subject to noregular discipline,' cannot be recognized as soldiers, but are simply ' assassins.' When M. Favre reminded Prince Bis- marck that the Prussians had, as a nation, taken up arms against the French in 1813, the Prince replied, 'Yes, but our trees preserve the traces of the inhabitants whom your generals hung upon them.' The French, in fact, mistook the Prussian patriots of 1813 for ' assassins ;' and the Prus- sians in 1870 made the same error, if error it was, in regard to the French. Similarly Na- 480 FIRST PLATPOEM Proposed ex- 462. Attempts have been made to prevent these ception in -i i • i ■ - i i favourofiCT^e evils Dj introducing an exception to the general rules en masse of an j, „ , , i n /. ■ ,•,■,• unoccupied ot wartarc as to the need or wearing distinctive uni- district. poleon's generals in Spain exe- cuted members of guerilla bands as ' assassins,' whicli did not prevent Napoleon from order- ing a levy en masse in France when tlie country was invaded by the Allies in 1814, nor Prince Schwarzenberg from treating as * assassins,' or would-be ' assassins,' all who took part in it." When the Duke of Welling- ton invaded the South of Prance in 1814, the army under his command suffered some loss and considerable annoyance from attacks made by the French armed peasantry, who had been to a great extent provoked to taking up arms by the excesses of some of the Spanish troops that were acting with the British. The Duke, while he checked promptly and sternly the pillaging and slaugh- tering propensities of his Spa- nish AUies, repressed the par- tisan warfare of the French population by threats of un- sparing military severity. In a proclamation dated 1st of April, 1814, to the French local authorities, he warned them that " Le Commandant en chef fait savoir aux habitans du pays que les lois de la guerre ne permettent pas que I'habi- tant demeurant dans son vil- lage fasse en meme temps le metier de soldat. II faut que ceux qui desirent etre soldats aiUent servir dans les rangs ennemis ; et que ceux qui desi- rent vivre tranquillement chez eux sous la protection du Com- mandant en chef, ne portent pas les armes. " Toute personne non mili- taire qui sera trouvee en armes sur les derrieres de I'armee sera jugee selon les loix militaires et traitee de la maniere que les Greneraux ennemis ont traite les Espagnols et les Portugais." (Wellington's Despatches, Gur- wood's 2nd series, vol. xi. p. 618.) There is in the same volume of the Duke's Despatches a still more emphatic proclamation, addressed to the inhabitants of two French villages, who had shown especial activity in ha- rassing the Allies. " Proclamation aux habitans de Bidarry et Baygorri. " 28 Janv. 1814. " S'ils veulent faire la guerre qu'ils aiUent se mettre dans les rangs des armees ; mais je ne permettrai pas qu'ils fassent OF INTERNATIONAL LAW. 481 forms or badges, and as to acting under the orders of officers commissioned by the national government. At the Brussels Conference the Swiss Delegate had Proposals at . , - . , . the SrusseLs pointed oxd that " a country might rise en masse, as Conference. Switzerland had formerly done, to defend itself with- out organization and under no command. The pa- triotic feeling which led to sucli a rising could not be kept down ; and although these patriots, if defeated, might not be treated as peaceful citizens, it could not be admitted in advance that they were not bellige- rents." This led to a modification by the Russian and other delegates of the chapter originally prepared as to "Who are to be recognized as Belligerents?" The modified Text stood as follows : — impunement tour a tour le role d'habitant paisible et celui de soldat." In a letter written by the Duke to Marshal Beresford, ■which encloses the draft of this Proclamation, he desires the Marshal to print it and circu- late it in the villages. The Duke further bids the Marshal to inform the inhabitants that "if I have further reason to complain of these or any other villages, I will act towards them as the Erench did to- wards the towns and villages in Spain and Portugal ; that is, I wiU totally destroy them, and hang \rp aU the people he- longing to them that I shall find." The Duke also alludes to this Proclamation, and shows that he was prepared to enforce it, if necessary, in a letter to Earl Bathurst, of 30th of Janu- ary:— " I am sorry to have to re- port that the peasantry of Bi- darry have done us a good deal of mischief by their attacks upon our foraging parties ; but I have adopted measures which will either put an end to this warfare, or will be a fair warn- ing to those engaged in it of the consequences which wiU result from it, and a justifica- tion to me for making the in- habitants feel it." (GuTWood, vol. xi. p. 489.) 2l 482 PIEST PLATPOEM " Art. 9. The laws, rights, and duties of war are applicable not only to the army, but likewise to militia and corps of volunteers complying with the following conditions : — " 1. That they have at their head a person respon- sible for his subordinates ; " 2. That they wear some settled distinctive badge recognizable at a distance ; "3. That they carry arms openly ; and " 4. That, in their operations, they conform to the laws and customs of war. " In those countries where the militia form the whole or part of the army, they shall be included under the denomination of ' army.' "Art. 10. The population of a non-occupied terri- tory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9, shall be considered as belli- gerents, if they respect the laws and customs of war"*. Lieber's Regu- Lieber, in his " Instructions "f, states the rule to lations. i^g ^j^g^j. u j£ ^YiQ people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country at the approach of the enemy, rise under a duly authorized levy en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war. No belHgerent * Blue Book, " Correspon- Military Warfare " (No. 1, dence respecting the Brussels 1875), p. 164. Conference on the Eules of f Paragraphs 51 and 52. OP INTERNATIONAL LAW. 488 has the right to declare that he will treat every cap- tured man in arms of a levy en masse as a brigand or a bandit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection "*. Besides thus making " due authorization " a uni- versal requisite for the international legality of a popular rising, he afterwards repeats his rule that inhabitants within a portion of their country, which the invaders have occupied, " who rise in arms against the occupying or conquering army, or against the authorities established by the same," are " War- Rebels "f ; and by the rule laid down such " War- Rebels," if captured, "may suffer death, whether they rise singly in small or large bands, and whether called upon to do so by their own but expelled Go- vernment, or not. They are not prisoners of war ; nor are they if discovered and secured before their conspiracy has matured to an actual rising or to armed violence." 463. The stipulation that the allowance of Bellige- Allowance of rent rights to a levee en masse without uniform and rightsTo°uch without regular oflBcial leaders shall only apply to the iittir^ue if population of a "non-occupied" territory, deprives iJSabitauu cf the allowance of all practical value. The civilians of drstriots!^'^ a district rarely take up arms in any large numbers, untU they have been galled by an enemy's presence among them ; and the definition of what is an " occu- pied district " is very hard to reaUze. Even if such * Paragraphs 51 and 52. t Paragrapli 85. 2l2 484 FIEST PLATPOEM Discrepanoies of opinion on this point at the Brussels Conference. a definition can be set out in theory, it is little likely to exercise much practical restraint on victorious inva- ders. There was on this cardinal point a difference of opinion among the members of the Brussels Con- ference, on which Lord Derby, the English Secretary of State for Foreign Affairs, naturally animadverted*. As he said, " The German view was, that occupation is not altogether of the same character as a blockade, which is effective only when it is practically carried out. It does not always manifest itself by visible signs. If occupation is said to exist only where the military power is visible, insurrections aire provoked, and the inhabitants suffer in consequence. A town left without troops must still be considered occupied, and any rising would be severely punished. Generally speaking, the occupying Power is established as soon as the population is disarmed, or even when the country is traversed by flying columns." Baron Jomini [the First Delegate for Russia] said that the discussion turned upon the word " territory." This was a general expression which must be interpreted liberally (" interpreter largement") ; a province could not be occupied at every point : that was impossible. The other view was, " That greater power must not be accorded to the invader than he actually possesses. Occupation is strictly analogous to blockade, and can only be exercised where it is effective. The occupier must always be in sufficient strength to repress an * See Parliamentary Paper (Miscellaneous), No. 2, 1875, " Further Correspondence re- specting the Brussels Confe- rence," p. 4. OF INTEENATIONAL LAW. 485 outbreak. He proves his occupation by this act. An army establishes its occupation when its positions and lines of communication are secured by other corps. If a territory frees itself from the exercise of this autho- rity it ceases to be occupied. Occupation cannot be presumptive. " The discussion terminated in the adoption of modi- fied Articles, in which an effort was made to reconcile the conflicting views by the use of carefully balanced expressions. Her Majesty's Government fear that the inhabitants of the invaded territory would find in such colourless phrases very inadequate protection from the liberal interpretation of the necessities and possi- bilities of warfare by a victorious enemy." 464. The Blue Book which records the proceedings of the Conference shows that the Delegates for the Netherlands, for Belgium, and Switzerland at Brussels remonstrated warmly against the limitation of the right of National Defence which would be created if the proposal of the representatives of the great Military Powers were adopted, and if it were to be declared a breach of International Law for the inhabitants of an occupied district to rise in arms against the invaders*. Lord Derby, in his concluding Despatch on the sub- ject, refers to these remonstrances ; and there can be few Englishmen who can look on them as trifling or fanciful. " In Baron Lansberge's [the Netherland's Dele- gate] opinion no country could possibly admit that * Blue Book, Miscellaneous, 1, 1875. 486 riEST PLATFOEM if a population of a de facto occupied district should rise in arms against the estabhshed authority of the invader, they should be subject to the laws of war in force in the occupying army. He admitted, that in time of war, the occupier might occasionally be forced to treat with severity a population who might rise, and that, from its weakness, the population might be forced to submit ; but he repudiated the idea of any Government contemplating the delivering over in advance to the justice of the enemy those men who, from patriotic motives, and at their own risk, might expose themselves to all the dangers consequent upon a rising. " Baron Lambermont [the Belgian Delegate] added, that if citizens were to be sacrificed for having attempted to defend their country at the peril of their lives, they need not find inscribed on the post at the foot of which they are about to be shot, the Article of a Treaty signed by their own Government, which had in advance condemned them to death. " Colonel Hammer [the Swiss Delegate] openly declared that two questions diametrically opposed to each other were before the Committee : — ^the maxims and interests, on the one hand, of great armies in an enemy's country, which imperatively demand security for their communications, and for their rayon of occu- pation ; and, on the other hand, the principles of war and the interests of the invaded, which cannot admit that a population should be handed over as criminals to justice for having taken up arms against the enemy. A reconciliation of these conflicting interests was, in OF INTEENATIONAL LAW. 487 his opinion, impossible in the case of a levee en masse in an occupied country "*. 465. I may add, that if the Russo-German views EiBkofen- on this subject were adopted, and were made portions ders to make of the Law which all nations are bound to recognize^ act as each a practice would be supe to grow up of the invaders and^exccutfon- compelling the tribunals of the occupied districts to tempts to try and to punish captured insurgents for what would cmmt^.' * under such circumstances be treated as a breach of Municipal as well as International Law. It would not be out of mere malignity that this would be done. It would be a matter of policy for the conquerors to foment mutual illwill and jealousy among the various members of the conquered population; and no mea- sure could be more effective for this purpose than to make them act as each other's executioners and victims. 466. Some few Jurists have recommended an am- , Biuntschii's pier measure of generous fairness to be shown towards gi-ant Beiiige- those who rise up in improvized and therefore irre- ^^londfide 1 p 1 1 J.1 • 1 r •it, • members of gular warfare, summoned by the impulse irom withm, a imsem which bids a man quit himself as a man when he feels ''^*''' the best of omens, the consciousness that he is doing his duty to his coimtry. Eis oiui'oi' apiaTov afxiiveadai irepl UaTprjs. Bluntschlif would extend the character of lawful Belligerents to bodies of men who take up arms with- * Blue Book, " Correspon- t Page 320, sect. 570, and dance respecting the Brussels note. Conference," 1, 1875. 488 FIEST PLATFOEM This liberality unlikely to be practised. Conduct of the Prussians in fehe late war. out State authority, on condition that they adopt mihtary organization [that is, so far as possible, and that they observe the laws of warfare], and if it is clear that they are fighting for a Principle, for a pubhc cause, and not, like brigands, from greed, for plunder, or from vindictive cruelty*. 467. There is little probability of the great mihtary Powers of the Continent ever adopting such a prin- ciple respecting the treatment of irregular belligerents, has been last mentioned. When the Prussians as invaded France in 1870-71 they issued and they enforced a Proclamation, that all Frenchmen taken in arms must, in order to claim the treatment of prisoners of war, carry papers showing that they formed part of the French army ; and that persons in plain clothes fighting without authorization from their Government, would, if captured, be brought before a Court-Mar- tial and sentenced to ten years' imprisonment in a German fortress, or, in aggravated cases, executed. * It is not without confessed hesitation that Bluntsehli gives this opinion. His words (as rendered by M. Lardy) are, " On pent hesiter k assimiler aux armdes regulieres les corps francs noii autoris^s. L'opi- nion la plus severe les declare hors les lois de la guerre. L'opinion contraire a prevalu ces derniers temps, et on admet que les corps francs doivent fitre traites en ennemis regu- liers, lorsqu'ils sent organises militairement et combattent pour des buts poUtiques, et nou pas, comme des brigands, par cupidite ou esprit de ven- geance. " Les lois de la guerre sent dejk assez severes centre les ennemis reguliers. Aussi, lors- que les idees et les interets politiques sont assez puissants pour provoquer la formation de troupes organisees et les pousser en masse au combat, il parait plus juste de leur appli- quer les lois de la guerre poli- tique et non les lois penales." OP INTEENATIONAL LAW. 489 The English writer who accompanied the Prussians, and who has recorded this Proclamation, states also his belief " that every case in which a Franc-Tireur actually shot a German soldier, was looked on as ' an aggravated case,' and entailed the punishment of death "*. 468. During the discussion at Brussels respecting Amoidon irregular warfare, the first Russian Delegate, Baron warferels Jomini, quoted a passage from our English historian, EulsianDele- Dr. Arnold, declaring " that it is the strict duty of f^a^ ^* ™^" every Government not only to discourage a war of so irregular a nature on the part of a population, but carefully to repress it and to meet the enemy only with regular troops, or with men regularly organized, and acting under authorized officers who will observe the rules which humanity prescribes in a regular war ; and what are called patriotic insurrections, or irregular risings of the whole population for the purpose of harassing an invading army, should always be con- demned without any distinction being made by whom or against whom this means is employed, as being a resource of restricted and doubtful efficacy, but of certain atrocity, and as the most terrible of the aggra- vations of the evils of war." Baron Jomini remarked that this quotation com- * Sutherland Edwards, p. If arms are not deposited at 123. " In their proclamation the Mairie, houses where arms affixed at Beauvais in October are found will be burnt, and 1870, the Prussians stated, the proprietors held responsi- ' Every attack made by sur- He.' " Cited in Mr. Manning's prise will be followed by the Preface to his last edition, p. burning of the place xl. 490 PIEST PLATEORM Kemarks on Arnold. Arnold influ- enced by Napier, who was prejudiced against Gue- rilla Warfare. Wellington regarded armed opposi- tion by the inhabitants of an invaded country as very for- midable. pletely expresses his views, and that he entirely agrees with it on every point*. The passage so much commended by the military Delegate for Russia will be found in the fourth of Arnold's ' Lectures on Modern History ;' and there is more in the same lecture written in the same spirit. Arnold, in fact, pronounces a sweeping condemnation against all irregular combatants, as sure to be both " cowardly and cruel ;" and he also asserts the general inefficiency of irregular warfare to conquer or to expel an enemy. Arnold's excellent qualities of head and heart entitle all his words to attention ; but I believe that in his military criticisms he was greatly influenced by the authority of his personal friend, General Napier, the historian of the Peninsular War. Napier's idolatry for Napoleon and for the Napoleonic school of vFarfare are notorious ; and throughout Napier's volumes the patriotism and the services of the Spanish irregular forces and armed civilians are studiously depreciated. The Duke of Wellington thought differently on this subject, as is abundantly evident from his Despatches ; and some of the Duke's correspondence, after the Allied armies had entered France, prove even more strongly that he regarded a general armed opposition by the inhabitants of an invaded country as a most serious obstacle to the progress of a hostile armyf . * Blue Book, p. 229. of pillage on the Erench in- t See especially his letter habitants committed by the to the Spanish General Freyre, Spanish soldiery, the Duke dated 5th of March, 1814. says, "However Prance may After complaining of the acts be reduced, there is no doubt OF INTEENATIONAL LAW. 491 469. With respect to the sweeping assertion that insurgent ir- " cowardice and cruelty " are certain characteristics necessarily of armed resistance by a country's population against crS ^ °^ invaders, it is enough to say that Arnold's recollec- tions of the history of Switzerland must have faded for a time from his memory, when he made that charge. 470. On the whole, whatever may be the mischief Present state connected with the present uncertainty of the Laws war in this of War as to irregular combatants, it would be a mere thln^the prcT- attempt to cure evil by certainly worse evil, if civilized ^°^^ " ™^^^' States in general were to accede to the international legislation in this respect which is proposed by the great military Potentates of the Continent. The wise conduct of Lord members of free States in general, especially of those Derby, which do not burden themselves and do not menace their neighbours by permanently maintaining armies of half a million and upwards, have cause to join in the approval which the great majority of Englishmen have given to the conduct of our Minister, Lord Derby, in declining to take part in the proceedings of the martial Congress summoned by the Emperor of that the army which I am the country which is the seat enabled to lead into the coim- of war." (Gurwood, vol. xi. try is not sufficiently strong p. 561.) See too Napier, vol. to make any progress, if the vi. p. 517. " There was no- inhabitants should take part thing he [the Duke] so much in the war against us. "What dreaded as the partisan and has occurred in the last six insurgent warfare proposed by years in the Peninsula should Soult. The peasants of Bay- be an example to all military garry and Bidarray had done men on this point, and should him more mischief than the induce them to take especial French army." care to endeavour to conciliate 492 PIEST PLATFOEM Russia, to consider the laws of military warfare. The interests of Philanthropy may be specious ; but the duties of Patriotism are solid. And our British States- man did his duty in " firmly repudiating, on behalf of Great Britain and her allies in any future war, any project for altering the principles of International Law upon which this country has hitherto acted, and above all to refuse to be a party to any agreement, the effect of which would be to facilitate aggressive wars, and to paralyze the patriotic resistance of an invaded people"*. * Parliamentary Paper (Mis- cellaneous, No. 2, 1870), " Fur- ther Correspondence respec- ting the Brussels Conference," p. 7. As proof of how in- efiFective the Conference was for any really useful purpose, Lord Derby justly pointed out in the same Despatch that its members had been unable to agree even in any modified opinions on the important and very practical subject of Ke- quisitions and Contributions, and that they had felt them- selves obliged to leave alto- gether unnoticed the topic of Reprisals. The Russian Minister, Prince Gortchacoff, met this Despatch by a letter of " Observations," which also is published in the Parliamentary Papers (Miscel- laneous, No. 3, 1875). Prince Gortchacow, in these " Obser- vations," haughtily denies the valid existence of any Positive International Law — although, as he says, " there is a law of nations more or less tacitly admitted, and of which some parts have acquired the force of law by means of formal Treaties. " The law of nations was not otherwise formulated. Jurists have, upon their own autho- rity, laid down maxims founded on experience, morality, public interest. These maxims have by degrees passed into habits and customs. Some of them, having been precisely stated, defined, and rendered binding by Treaties, have become posi- tive laws." The Prince claims credit in behalf of Russia for having endeavoured to give the Laws of "War, " by means of an ex- OP INTERNATIONAL LA^W. 493 We should now in strict order consider the subject of compulsory labour exacted by the conquerors from change of declarations between tte Cabinets, a sanction wbich would be binding." There is no small amount of august assurance in Russia thus seeking to make Treaty- Obligation the sole valid foun- dation of International Law ; Russia herself having only a few years before the Brussels Conference repudiated the ob- ligations under which the Treaty of Paris had placed her respecting armaments in the Black Sea. I have alluded to this contemptuous breach of pact in a previous chapter (see p. 43). Since that chap- ter was written I have seen an attempt to palliate the con- duct of Russia, and a sugges- tion that she really in 1871 paid homage to the cause of good faith by formally recog- nizing the principle, that no Power can liberate itself from the engagements of a Treaty without the consent of the other contracting parties. It is true that Russia did make a formal admission of this principle ; but it is equally true that she practically set it at nought, notwithstanding the remonstrances of England. The main facts are these. In 1856, after the fall of Sebastopol, peace was made between Russia and the Allies by the general Treaty of Paris of the 30th of March, 1856. That Treaty contained many provisions as to many subjects ; but its most important stipulation was an engagement on the part of Russia to limit her naval forces and arsenals on the Black Sea to a defined minimum. This limitation of the Russian forces in this quarter had been one of the main objects of the war; and it was especially in order to effect it that the Crimean expedition had been planned and persevered in by France and England. So long as the strength of both these two great "Western Powers remained unimpaired, Russia made no protest against this Treaty, and preferred no claim to be released from any part of it. But near the end of 1870, when the military force of France had been crushed by her defeats in the war with the Germans, when Paris was besieged, and the submission of France to her invaders was obviously only a question of time, the English Government were informed by the Russian Minister, in the name of the Emperor, that 494 FIRST PLATFOEM the non-combatant inhabitants of the occupied terri- tory ; but this is so intimately connected with the His Imperial Majesty cannot hold himself bound bj the sti- pulations of the Treaty of 18th (30th) of March, 1856, as far as they restrict his sovereign rights in the Black Sea." The Eussian Note, containing this "Denouncement" of the Treaty of Paris, will be found in the 3rd volume of Hertslett's 'Map of Europe by Treaty,' p. 1892. It should be read through, as should also be the " Purther Russian ISTote" which follows it, by all who wish to be satis- fled as to the real character of these transactions. It will be seen that Prince GortchakofF complains of the stipulations about Black-Sea armaments pressing hardly upon Bussia ; but he sets out the chief pretext for Eussia's con- duct in the following words : — "The Treaty of 18th (30th) of March, 1856, has not es- caped the modifications to which most European transac- tions have been exposed, and in the face of which it would he difficult to maintain that the written law, founded upon the respect of Treaties as the basis of Public Might, and regtda- ting the relations between States, retains the moral validity which it may have possessed at other times." He goes on to com- plain, first, of some changes of government which had oc- curred in the Principalities of Moldavia and WaUaehia, and secondly, of Foreign men-of- war having been suffered to enter the Straits and the Black Sea. As to the first of the matters thus particularized, it is obvious that the affairs of Prinoipahties had nothing to do with the stipulations as to the Euxine ; they were of no real importance in themselves ; and the mention of so frivolous an excuse shows the weakness of the Russian case. As to fo- reign ships of war passing the Dardanelles and Bosphorus, it appeared, from inquiries made by the British Government, the result of which was published in a Parliamentary Paper, that in sixteen years eight ships of war only had so passed, that one of these was Russian, only three French or English, and that no infraction of treaty had taken place as to any of them. The really important new facts which had occurred be- tween the spring of 1856 and the winter of 1870, and which to the Muscovite mind " modi- fied the moral validity " of the Treaty of Paris, were : — first, the temporary prostration of France after the catastrophes of OF INTEENATIONAL LAW. 495 rules of war as to the power of the conquerors over property, that it will be most conveniently considered in connexion with them. Sedan and Metz, and her conse- quentinabilityto side with Eng- land in upholding the Treaty ■whichhadbeen the resultof their joint efforts in the Crimean "War ; and secondly, the deter- mination which the German and Austro -Hungarian Powers had formed not to cooperate with England in any armed resistance to Eussia's projectfor nullifying the protection to the independence of Turkey, which that Treaty of 1856 had created when it limited the Eussian armaments in and near to the Euxine. The English Govern- ment had ascertained this ; and the English Premier informed the House of Commons in the Debate on the Address in 1871, that " "We should not have had a single ally among the Neu- tral Powers if we had proposed simply to insist on the neutra- lization of the Black Sea." There can be no doubt that Prince Gortchakoff had learned with equal accuracy what policy Austria and other Powers in- tended to pursue if England went to war for the sake of the denounced Treaty. Under these circumstances the British Foreign Secretary sent a reply to the Eussian Notes protesting against Eussia declaring as a general doctrine that a single party to a Treaty might destroy the Treaty at pleasure, but containing the following invitation : — " If in- stead of such a declaration the Eussian Government had ad- dressed Her Majesty's Govern- ment and the other Powers who are parties to the Treaty of 1856, and had proposed for consideration with them whe- ther any thing had occurred which could be held to amount to an infraction of the Treaty, or whether there is any thing in the terms which, from al- tered circumstances, presses with undue severity upon Eus- sia, or wliich, in the course of events, had become unnecessary for the due protection of Tur- key, Her Majesty's Government would not have refused to exa- mine the question in concert with the cosignatories to the Treaty"*. The hint was taken. Eussia condescended to admit that " it is an essential principle of the Law of Nations that no Power can liberate itself from the en- gagement of a Treaty,nor modify * Hertslett, vol.iii. p. 1900. 496 FIRST PLATFOEM Effects of hostile occu- pation on property. Primary rules of Warfare on these subjects. 471. We shall have to divide this matter into the effect of hostile occupatioti on — 1st. Public property, whether a. Immovable, or b. Movable J and then into its effects on 2nd. Private property, whether c. Immovable, or d. Movable. The labour of inhabitants comes naturally under this last subdivision ; for a labourer's capacity to work is his natural property. First, however, we must see the old primary rules of war on the subject — always remembering that the burden of proof as to any part of them having been changed lies on those who assert such a change to the stipulations thereof, unless with the consent of the Con- tracting Powers by means of an amicable arrangement"*. This ceremonious admission was made by a Protocol signed on the 17th of January at London ; and by a Treaty signed there on the 13th of the following month, tbe articles of the Treaty of Paris as to the navigation of the Black Sea were abrogated, and Russia gained her purpose of discarding the restraints to which she bad submitted in 1856t. * Ibid. p. 1904. t Ibid. p. 1919. It is obvious that after the lapse of a few years, or even of a few months, pretexts never can be wanting for the assertion that some articles of a Treaty have been neglected, and that some changes in the condition of affairs bave supervened. If such frivolous excuses are to justify a State in " denouncing " whatever part of the Treaty it finds inconvenient, and in denying the " moral validity" of the written law, Treaties must cease to be worth the paper on which they are writ- ten, so soon as the physical power to enforce them is im- paired. OF inteejSTational law. 497 to have taken place — and remembering also that the strict right to enforce an old rule as matter of Positive Law may survive, although its enforcement may have become unusual, and may be now regarded as a harsh- ness not consonant with the International Comity, or even with the International Moral Law, which civilized States generally practise. We may, moreover, use- fully devote some attention to considering the nature of the dominion which invading belligerents acquire over occupied territory, and of the amount of allegi- ance due to them by the inhabitants of that territory. 472. I have already stated that by the old primi- tive laws of war all the goods and chattels of any and every member of a nation engaged in warfare become liable to seizure by any member of the hostile com- munity, that there was a similar liability to personal capture and enslavement, that the immovable pro- Kecapituia- perty of the conquered, whether public or private, dent War passed to the conquering State, and that the con- quering State acquired property over all booty taken in military operations*. Such relaxations of these stern old rules as have The mitigation been effected are of very modern date. Grotius is rery^recent. quotes (and he admits the validity of) maxims of an- Their validity cient writers as to the almost unlimited right which by Grotius^^ a belligerent acquires by the law of nations over members of the hostile State, even after resistance is endedf. He afterwards devotes great part of one of * See su^rd, pp. 367-389, ram spoliare eum quern hones- and notes. turn est neeare, dixit Cicero. t "Non esse contra natu- Quare mirum, non est si jus 2 K 498 PIE8T PLATFOEM Grotius only the most interesting chapters in his work to demon- humanity and strating that a good and humane conqueror, especially to temper'the if he be a siuccre Christian, will not avail himself of ofthesTstrict the fuU rights given to him by warfare; but the ex- "^ '^' istence of these rights is emphatically recognized. Not to take up space by enumerating a host of similar authorities, I will give a conclusive reference to Mar- tens, which shows how, so lately as only a hundred years ago, this subject was regarded in civilized Europe and in civilized America. Martens says. Dicta of Mar- "The conqueror has, strictly speaking, a right to how'these ° make prisoners of war of all the subjects of the hostile regardeirs^o" State who may fall into his power, though they have laatquOTterof Committed no violence against him; and of course tury.*^' """' lie has a right to remove them to another country*. But, now-a-day, the conqueror generally carries his rights, in this respect, no further than to submit such subjects to his dominion, to make them swear fealty to him, to exercise certain rights of sovereignty over gentium corrumpi ac rapi per- totas dirutas, aut mcenia solo miserit res tostram, quos in- sequata, popnlationes agrorum, terficere permiserit. Polybius incendia singulis ferme paginis itaque, historiarum quinto, apud historiarum soriptores in- jure belli eomprehendi ait ut venias. Et notandum licere munitiones hostium, portus, hseo in deditos." — Grotius, De urbes, viri, naves, fructus, et Jure, &c. lib. iii. ch. v. siqua sunt similia, aut eripian- * Martens, however, adds a tur aut corrumpantur. Et note showing that the legality apud Livium legimus, ' Esse of such removals of populations qusedam belli jura, quae ut fa- "was not unquestioned, according cere ita pati sit fas : sata exuri, to the then modern law of na- dirui tecta, prDedas hominum tions. " Their sovereign never pecorumque agi.' Ipsas urbes fails to complain of it." OF INTEENATIONAL LAW. 499 them, such as raising and quartering troops among them, making them pay taxes, obey his laws, &c., and punishing as rebels those who attempt to betray him or shake off his yoke "*. Martens proceeds to describe " the rights of the conqueror with respect to the property of the enemy " in the following lan- guage :— "The conqueror has a right to seize on all the property of the enemy that comes within his power ; it matters not whether it be immovable {conquSte, eroherung) or movable {butin, beute, booty). These seizures may be made (1) in order to obtain what he demands as his due, or an equivalent ; (2) to defray the expenses of the war ; (3) to force the enemy to an equitable peace ; (4) to deter him, or by reducing his strength, hinder him from repeating in future the injuries which have been the cause of the war. And with this last object in vieio, a power at war has a right to destroy the property and pos- sessions of the eneny for the express purpose of doing him mischief. " However, the modern laws of war do not permit the destruction of anything except (1) such things as the enemy cannot be deprived of by any other means than those of destruction, and which it is at the same time necessary to deprive him of ; (2) such things as after being taken cannot be kept, and which might, if not destroyed, strengthen the enemy ; (3) such things as cannot be preserved without injury to * Page 286. 2k2 500 riEST PLATFOEM the military operations. To all these we may add (4), whatever is destroyed by way of retaliation. " The victorious sovereign claims the dominion over the provinces and countries conquered by his arms. He appropriates to himself the national do- mains and all the property belonging to the dispos- sessed sovereign ; and particularly all the fortresses, ships of war, arms, and all other implements of war. The rest of the movable property taken from the vanquished soldiers is commonly given up as booty to the army, or the corps employed on the expedition. The distribution of the booty between the sovereign and his soldiers depends on the military code of the State to which they belong. It is a point that does not belong to the law of nations. " With respect to the immovable property of the enemy's subjects, and the movable property of those of them who have not taken up arms in the war, though the conqueror has a right strictly speaking to appropriate the whole of it to himself, yet, according to the modern practice, it is left to the proprietors, and a contribution is exacted in its stead. This con- tribution once paid, whether in money, produce, or service, the invaders ought to pay for all they after- wards receive from the conquered subjects ; except it be for such services as every sovereign has a right to require from his subjects "*. When Martens published this treatise (which as I have already mentioned was translated for the Ameri- * Martens, p. 287. or INTERNATIONAL LAW. 501 can Government by William Cobbett, and which was generally regarded as the best epitome of the Law be- tween Nations*), some effect had been produced by what Vattel had written on the subject about forty years previously. Vattel followed the opinions expressed by Vattei on Grotius (already referred to), that a just and humane ^^°"' °" ^^^ ' government or general will not enforce the rights of war in all their rigour ; but Vattel explained more fully than Grotius had done, how some of the prac- tices sanctioned by the old rules and usages were actual violations of moral or natural laws. The doc- trines of Vattel will be found in his third book, in various parts of the 9th, 10th, 11th, 12th, and 13th chapters. They are all based on the principle which he states in a passage, which I have already quoted from him : — " Cette regie geuerale — tout le mal que Ton fait a I'ennemi sans necessite, toute hostilite qui ne tend point a amener la victoire et la tin de la guerre, est une licence que la loi naturelle condamne." I have already commented fully on this principlef , and on the nearly contemporaneous maxim of Montes- Montesquieu, quieu J, which requires nations in time of war to do each other as little harm as possible, consistently with their true interest — that is, with the legitimate purpose for which they are waging hostilities. If these The suggested maxims are fairly observed, there is no need of the pro- not required posed new rules, which assert that warfare is a relation p°urpose.'^"" between State and State only, and that private property and the persons of non-combatants are to be held sacred * See supra, pp. 117, 125. $ See supra, pp. 364, 384. j- See supra, p. 367. 502 PIE8T PLATPOEM Their adyo- cates confess them to be subject to exceptions, which are fatal to their seeming im- portance. Practical state of things now contemplated. As to the invader's ani- mus transe- wndi, and ani- from its operations. Those who advocate the intro- duction of these formulas do not deny that they must be subject to the exceptional rights of the invader to take and to do whatever military necessity requires, the invader being himself judge of that necessity. We shall see presently how worthless for all fair purposes the new rules would be, so long as these exceptions are allowed, although they might and would be made the means of founding captious ob- jections, and of originating and perpetuating many international disputes. 473. I nowrevert toconsiderthe rights of Occupying Belligerents a little more in practical detail than we have done in the previous pages. I am not going to repeat here what has been said about the classes of lawful combatants. The immediate purpose of this portion of our work is to consider the case of a belH- gerent force which is (temporarily at least) superior to any hostile force that can be brought into action against it, and which, during such superiority, is landed in, or marches into, a portion of the hostile territory. 474. An invasive force of this kind may merely desire to march through a particular district, with a view to carry on operations elsewhere ; or it may in- tend to establish some permanent control over the various districts, or some district which it enters. This last is generally the case ; and even where a transit is the purpose for which the territory is entered, the invaders must require the exercise of some authority over the inhabitants during at least the OP INTERNATIONAL LAW. 503 period of the marcli; and they almost always avail themselves of the produce of the district. They also generally claim .the right, and they still more com- monly use the power (if they possess it), of making the inhabitants of any district on their hues of march suffer severely for any armed risings that may be attempted in the rear or on the flanks of the army. Moreover it often happens that parts of the invading forces are stationed near enough to districts to be able to move on them if need requires, without being per- manently present. Circumstances such as have been indicated constitute what is termed Constructive ox Constructive virtual occupation, as contradistinguished from actual occupation. It is obvious that the limits of Construc- tive occupation must necessarily be vague ; and that the invaders are sure to interpret them with severe liberaUty in their own favour. From the nature of the claims which victorious occupiers make to the submissive obedience, if not to the legal allegiance, of the conquered inhabitants, the real territorial extent of Rights of Occupation becomes often a very serious matter. The ereat military powers, who keep on foot Disputes as ° 11 1 • to extent of huge armies always ready to be poured into the rights of oo- 1 ■ 1 1 • T • ^ cupation. lands against which their Imperial masters may de- clare war, naturally wish the largest possible interpre- tation to be given to the word " occupied." On the contrary, such States as only keep up moderate armies in peace-time, and which are therefore obliged to contemplate the probability, or rather the certainty, of having for a time at least to maintain defensive operations if war breaks out, desire the rights of 504 FIEST PLATFOEM Nature of the occupation which is here presupposed. General na- ture of the authority of the occupying belligerent. " occupying " invaders, to be construed as rigorously as possible*. 47 5. To avoid complication, I will suppose, in -what I am about to write respecting rights of military occupiers, that the case is one in which the fact of occupation is clear. By this I mean, that I presume the invaders to be so far predominant in the district that no considerable national force keeps the field against them in any part of it ; and that no consider- able number of fortified towns or strong places in it are still held by national garrisons. And, further, we will presuppose that the invaders' forces are so com- plete in numbers and organization, that any forcible opposition made by the inhabitants to the invaders or to officials of any kind appointed by the invaders would be reasonably certain to bring an armed force of the invaders into speedy action on the scene of such opposition. This state of circumstances, or something analogous to it, will be intended in the rest of this chapter when we speak of " occupation." 476. In such a state of things the authority which represents the Sovereign Power of the prevalent belli- gerent nation, in taking possession " of the enemy's territory, takes possession not merely of the soil and the movable property upon it, but of the Sovereignty over it, and may exercise the latter during such time as it remains in possession of the territory "f . * See the discussions at the Despatch of Jan. 20, 1875, in Brussels Conference, p. 160 of Misc. Pari. Paper no. 2, 1875. Blue Book of Session 1875, and f Sir Travers Twiss, p. 122. Lord Derby's comments iu his OP INTEENATIONAL LAW. 505 477. This is the general principle. Practical limi- Practical cus- . , , 1 /. ■ ■ tomary limi- tations nave grown up as to the mode oi exercising tations. the full right of dominion thus given by the svi^ord which only lasts so long as the sword upholds it. We shall have to consider these limitations presently, especially with regard to the question of whether they are mere restraints of Moral Law, or whether they are to be regarded as steeled into Positive Laws. 478. The strict general principle is that thevictori- General . PI principle. ous Sovereign Power becomes absolute master of the subject territory, " durante vifortioris." 479. As the acquisition is effected by an army, TheOomman- the commander of that array is the natural represen- cupying army tative of the sovereign conquering power, and is so wieiderof regarded unless the actual sovereign power of the power'imie conquering State delegate to some other official the *^ ■''"■""■'*• rule over the new province. It follows (as correctly stated by Lieber) that " a Lieber's de- . -IT 1 ecription of place, district, or country occupied by an enemy stands, sovereignty of in consequence of the occupation, under the martial oaeupant. law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants has been issued or not. Martial law is the immediate and direct effect and Natm-eofthe martial law consequence of occupation or conquest. which then T,, p 1 J -1 1 • -J comes into " The presence or a hostile army proclaims its mar- operation, tial law " *. * Lieber's Instruotions,para- place forte, une ville, un dia- graph 1, and see Bluntschli, trict est occupe militairement p. 303, sect. 539. " Lors- par I'adversaire, cette partie du qu'iine partie du territoire, une territoire est aussitot soumise 506 FIEST PLATFOEM Duke of Wel- lington's de- scription of " Martial Law." Lieber's de- scription of Martial Law. 480. " What is Martial or Military Law? "* A very clear and emphatic though brief answer may be given in the words of the Duke of Wellington : — " I understand military lav«.to be the law of the sword, and in all well-regulated and disciplined armies to be the will of the general "f. I will add a more detailed answer in the words of Lieber. " Martial law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic admi- nistration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. " The commander of the forces may proclaim that the administration of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. " Martial law is simply military authority exercised in accordance with the laws and usages of war. aux lois martiales de rarmee qui en a i^ris possession. La presence des troupes iDellige- rentes sur le terz'itoire ennemi entraine cette consequence en plein droit, et sans declaration prealable." * Care must be taken that the martial or military law which exists as between na- tions, and which also exists in cases of rebellion within a State, is not confounded with the martial or military law which States separately enact for the guidance and discipline of their own armies. t Gurwood's Supplemental Despatches, vol. ii. p. 262. OF INTEENATIONAL LAW. 507 Military oppression is not martial law ; it is tlie abuse of the power which that law confers. As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honour, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. " Martial law extends to property and to persons, whether they are subjects of the enemy or aliens to that government "*. 480a. It is usual for the general of the occupying rsuai to allow army to allow the local laws of the occupied district to to continue remain in force, so far as they do not interfere with existence" the efficient exercise of his military authority, or with his rights over the resources of the place. It is also usual for him to allow and to require the inferior local officials to continue the discharge of their* duties in preserving order f . * Lieber's Instructions, pa- shall be carried into execution, ragraphs 3, 4, 7. is bound to lay down distinctly t The Duke of "Wellington, the rules, and regulations, and in a debate in Parliament on limits according to which his the subject of martial law, wUl is to be carried out. Now gave the following graphic and I have, in another country, emphatic account of how he carried out martial law ; that himself had acted in this re- is to say, I have governed a spect: — " Martial law is neither large proportion of the popula- more nor less than the will of tion of a country by my own the general who commands the wiU. But then, what did I army. In fact, martial law do ? I declared that the coun- means no law at all ; therefore try should be governed accord- the general who declares mar- ing to its own national law; and tial law, and commands that it I carried into execution that my 508 PIEST PLATPOEM Interest of the inraders to do this. 481. It is obviously to the interest of the invaders to follow this course. It relieves them of v\4iat would be otherwise a burdensome task of legislation and administration ; and it tends to diminish the ill-will of the inhabitants towards their new compulsory rulers. The custom of thus allowing local laws and institu- tions to remain in force, so far as may not be incon- venient to the conquerors, is sometimes spoken of as so declared will." Bltmtsolili writes on this subject as fol- lows :— "Le clief des troupes d'oc- cupation peut maintenir, en tout ou en partie, I'adininistration civile et judiciaire telle qu'elle existait avant la prise de pos- session. Mais cette adminis- tration doit se soumettre anx decisions ^es autorites mili- taires (1. Inst, amer., art. 3). La surete generale et le bien public, que la police et I'admi- nistration civile ou judiciaire out h sauvegarder, doivent etre aussi pendant la guerre. 11 est impolitique d'ordonner, oomme les AutricWens avaient fait en Boheme en 1866, lors de Toocupation prussienne, a tons les fonctionnaires et meme h la gendarmerie de quitter le territoire que I'ennemi se pre- pare a occuper. L'ennemi Bouffre beaueoup moins de cctte mesure que les nationaux eux- memes, dans I'interSt desquels radministration est etablie. Le gouvernement se rend grave- mentcoupable envers ses ressor- tissants, en abandonnant tons les etablissements publics a la meroi de l'ennemi. II faut cependant distinguer entre les employes dont les fonctions sent purement administratives, et ceux qui remplissent des fonc- tions politiques. Les pre- miers n'ont auoun motif de s'enfuir, et ils en ont beaueoup de rester k leur poste, de con- tinuer k exercer leurs fonctions et de chercher h defendre les interets locaux ou nationaux. Les fonctionnaires politiques, par centre, cdderont plutot la place devant un ennemi qu'ils ne sent pas tenus de servir et qui leur conflerait difloilement la direction du pays. Cette distinction depend cependant plutot de la politique que du droit, et n'est pas absolue par consequent. Certains employes administratifs, qui se sont par- ticulierement compromis par leur oonduite, pourront avoir OF INTEENATIONAL LAW. 509 if it were a matter of right in behalf of the inhabi- it is not a tants. But, in reality, in such cases the seeming laws right. of the old Government become laws imposed by the new rulers. The military chief of the occupying army is, or represents, the supreme sovereign power ; and the maxim applies, that " Whatever the real Sove- reign permits to be commanded and enforces, if needful," is politically commanded by the Sovereign himself *. But the political and legal authority of an still the sove- occupying enemy over an occupied territory is not military occu- absolute or perfect. It is hmited by its very nature, compiet"? It is entirely based on military power, which is essen- tially provisonal and exceptional. If the invaders are forced to retire from their new conquests, or if from other motives they think it desirable to withdraw from dea motifs suffisant de quitter et en general les autorites lo- la contree et de renoucer a leurs cales sont, moina que toutes les fonctions a I'arrivee de I'enne- autres, modifiees par la guerre, mi ; inversement, certains fono- Comme elles ont une mission tionnaires politiques pourront purement locale, eUes sont in- juger utile de rester a leur poste separables du lieu ou'eUes fonc- et d'attendre les evenements. tionnent et passent avec ce La regie reste cependant : jus- dernier sous I'autorite de I'en- qu'a la prise de possession, les nemi." employes doivent obeir aux * See Sir H. Maine's com- r^glements et aux ordres de ments on the maxim of the leur gouvernement. Apres la Anstinian school of jurispru- prise de possession, ils cessent dence, " Whatever the Sove- de dependre des autorites de reign permits he commands," leur pays et doivent, dans les in the two concluding Lectures limites flxees par le droit in- of the 'Early History of In- ternational, se soumettre aux stitutions.' I have somewhat decisions des autorites mUitaires expanded the maxim. It is etablies par I'ennemi. seriously inaccurate if stated in " Les autorites communales^ its old terse form. 510 FIE8T PLATPOEM them, their authority of every kind ceases, and the old Government and laws revive. The Jus Post- 482. The liabihty of the Belligerent Occupier's liminii. . • 1 1 ■ ii y Dana in fa- the practice oi warring on commerce, declaring that, vourofthe in his opinion, it is the most humane, and often the most efficient part of war, and the least objectionable part. ' It takes no lives, sheds no blood, imperils no households, has its field on the ocean, which is a com- mon highway, and deals onlywith the persons and property voluntarily embarked in the chances of war, for the purposes of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels ; but a grand valiant appeal to force, to secure an object deemed essential when every other appeal has failed ' "*. 511. Mr. Dudley Field meets this reasoning by Mr. Dudley arguments which mainly rest on the proposition, mLts^Sa. * Dana's ' Wheaton's Elements of International Law,' p. 876, 2n 2 548 FIEST PLATFOEM Arguments of M. De Laveleye, and of Mr. Maroy. They assume the accuracy of the Portalis theory. They misun- derstand the motiTes from which the Signataries of the Treaty of Paris re- nounced Pri- vateering. " That War is now a relation between State and State only, and that private property is therefore to be re- spected"*. If this proposition fails (and sufficient attention has already been paid to demonstrating its fallaciousness), the arguments based on it fall to the ground also. The assumption that this proposition is true, this Petiiio Principii is common to all the advocates of the abolition of the old maritime rights of a belligerent against enemy's merchant-ships and their cargoes. Among the writers on this side of the question, the ablest appears to be M. De Laveleye, the distinguished Jurist of Belgium. His work, entitled " Du Respect de la Propriete Privee en temps de guerre," has justly obtained general and respectful notice. He follows much the same line of reasoning ; and he cites and adopts many passages from the State Papers, by which Mr. Marcy, the American Secretary of State in 1856, sought to justify the refusal of his Government to concur in a renunciation of the right to employ Privateers. Mr. Marcy and M. Laveleye both assume that the proposition of Portalis in favour of the general inviolability of private property is now an established maxim ; and they further assume that the States, which in 1856 joined in the Declaration of Paris against Privateering, did so on the Portalis principle of excepting private property from seizure. If these points are conceded, their inferences that we ought to go further and exempt merchant-ships and cargoes from all hostile capture, would be very plau- * Proposed New Code of International Law, p. 529. OP INTEENATIONAL LAW. 549 sible. But the avowed and the notorious motive on which the Powers acted that signed the Declaration of Paris against Privateering, was the extent and the enormity of the abuses which are invariably found to accompany the practices of Privateers, in neglect and in contempt of the rights of neutrals, of the laws of war, and of the principles of humanity — abuses which for centuries have been topics of complaint by states- men and jurists of all civilized nations. As for any complete or effective sanctity of private property being really practised in land-warfare, Mr. Marcy's writings Mr.Marcy's in 1856 are best answered by looking to the acts of ^rLno^ityof his countrymen in their war of 1860-65, a contest perlydis-" which, although a Civil War, is considered both by conduot'^of wt the Americans themselves and foreigners to have been ^in"he^^" conducted with fair respect for the received laws and ^^^ °^ ^^^'^~ usages of civilized warfare*. In 1864 the Pederal instances of General Sherman, in his memorable expedition from General Sher- Tennessee to the Atlantic seaboard, captured from the ment^oTthe' Confederates the important city of Atlanta. The city Xtianto."^ was surrendered to him without any resistance by its municipal authorities. He considered that " the exi- gencies of the service required that the place should for the present be appropriated exclusively for military purposes ; and orders were immediately issued for the departure of all civilians, both male and female, ex- cepting those in the employment of the Govern- ment "f. Besides thus expelling the inhabitants, the * See Prof. Abdy's edition tory of the Rebellion, by T. of Kent, p. 245. Tenney, p. 545. t Military and Naval His- 550 FIEST PLATFOEM Federal General " burned every thing in the place except the churches and dwelling-houses "*. His reply to 513. When the order for the expulsion of the inha- their remon- . i • i i • j. i ij. strances. Ditauts was givcu, their local magistrates sent a letter of remonstrance to General Sherman, pointing out the amount of suffering to helpless non-combatants which it would cause. Some parts of the reply of the Federal Commander deserve attention, especially as it is evident from the recently published memoirs of General Sherman, as well as from other authorities, that he is an officer of high honour and of humane disposi- Miiitary tiou. He told the citizens of Atlanta, " I cannot re- ruie. voke my order. I have to prepare for a future struggle in which millions, yea, hundreds of millions of good people outside of Atlanta have a deep interest. We must have peace, not only in Atlanta, but in all America. To have peace, the rebel armies must be defeated. To defeat them, we must reach them in their recesses. My military plans make it necessary for the inhabitants to go away ; and I can only renew my offer of services to make their exodus in any direc- tion as easy aud comfortable as possible, "War is and " War is cfuelti/, and you cannot refine it. Those cruelty." who brought War on our country deserve all the curses and maledictions a people can pour out. I had no hand in making this war ; and I will make more sacri- fices this day than any of you to secure peace. But you cannot have peace and a division of our country. We don't want your negroes, or your houses, or your * Draper's History of the American Civil War, vol. iii. p. 306. OP INTEENATIONAL LAW. 551 land, or any thing that you have ; but we do want, and will have, a just obedience to the laws of the United States. That we will have, and if it involves the destruction of your improvements, we cannot help it "*. 513. Afterwards General Shermaa, in his march ffisdevasta- through Georgia, supported his army on the resources Georgia. of the country ; and he sought at the same time to exhaust those resources, and to weaken the hostile Georgians as much as possible. I will describe his system of operations in his own words. His report to President Lincoln states, " We have consumed the corn and fodder in a region of country thirty miles on each side of a line from Atlanta to Savannah, as also the sweet potatoes, cattle, hogs, sheep, and poultry. We have carried away more than ten thousand horses and mules, as well as a countless number of slaves. I estimate the damage done to the State of Georgia at a hundred millions of dollars, at least twenty millions of which has inured to our advantage; and the re- mainder is simply waste and destruction. This may seem a hard species of warfare ; but it brings the sad realities of war home to those who have been directly or indirectly instrumental in involving us in its at- tendant calamities "f. 614. On another scene of the same widely extended General sheri- contest between the Federals and the Confederates, tim^of^tl? General Sheridan, who commanded for the Federals ^aUeyr^°^^ on the Upper Potomac, was ordered, in September 1864, to lead his troops along the Shenandoah valley,, * Draper, vol. iii. p. 306. f Ibid. p. 338. 552 FIEST PLATPOEM a fertile district between the Potomac and the vicinity of James River, through which expeditions of the Con- federates had been made several times during the war, so as to influence the great and long-continued conflict which was waged near Richmond, and so as more than once to menace Washington. The inhabi- tants of this district were keen and determined Seces- sionists ; and it was by their active aid and coopera- tion that the Confederate expeditions in those regions had been effected. The Federals determined to pre- vent the recurrence of any similar movement by laying waste the country which was so loyal to their adver- saries. This was done by General Sheridan's army. His modus operandi is thus described by the strongly Tederalist historian. Dr. Draper. " He now proceeded to carry out Grant's instructions respecting the devastation of the valley. His cavalry spread across its entire breadth ; and so thorough was the de- struction that it was said, ' If a crow wants to fly down the valley he must carry his provisions with him.' Sheridan himself reported that 'The whole country, from the Blue Ridge to the North Mountain, has been rendered untenable for a rebel army. I have destroyed over 2000 barns filled with wheat, and hay, and farming-implements, over 70 mills filled with fiour and wheat ; I have driven in front of the army over 4000 head of stock, have killed and issued to the troops not less than 3000 sheep. A large number of horses has also been obtained.' " The devastation of the valley was a severe mea- sure ; but its inhabitants were bitterly hostile to the OP INTEENATTONAL LAW. 553 Government ; they had promoted as much as they could every Confederate expedition against Wash- ington ; indeed without their assistance it vras scarcely possible that such expeditions could be made"*. 515. There was certainly here little heed paid to the supposed inviolability of private property ; nor can we find any recognition of a theory that indivi- dual citizens had nothing to do with the war, and that consequently the war should have nothing to do with them. The belligerents acted on the principle de- clared in a manifesto of December 1, 1862, by Mr. Secretary Stanton (already cited in this volume), that The principle " No aphorism is more universally received than that not'seoretery the sole object of a just war is to make the enemy feel seerete,^"* the evils of his injustice, and, by his sufierings, amend ^'*''*°°^- his ways ; he must therefore be attacked in the most accessible quarter "f. 516. But while we must deny that the distinction stm there is between States and their component members as to difference'^ belligerency, and as to liability to feel the effects of pr^rtTeeand war, has ever been established on land so as to serve ■=^"^-P''»«t"'e- as a sound basis for arguments why the property and persons of private individuals should be exempt from war-risks at sea, it is not to be questioned, and it has not been questioned in these pages, that an amount of mitigation of war-hardships has become usual on shore, to which there is nothing analogous in maritime ope- rations. The causes for these differences have been * Draper, vol. iii. p. 411. t See 2 Draper, p. 581, and D. 388 suvra. p. 388 supra. 554 PIEST PLATPOEM Valuable light on tho princi- ple of this dis- tinction to be found in the House-of- Commons debate in March 1862. Reference to Sir Cornwall Lewis's speech. repeatedly set out, or adverted to ; but as the topic is one of much importance and interest, I will refer to one more source of very valuable light on the subject — I mean the debate in the House of Commons on Mari- time Rights, which M'as caused by the proposal of a resolution by Mr. Horsfall, on March 11, 1862 (the debate being continued on the 17th of the same month), and in which the question contested was, whether England ought to abandon the right of cap- turing private ships and cargoes in time of war*. The speeches delivered in that discussion by Sir G. Cornwall Lewis, by Mr. Spencer Walpole, by Lord Palmerston, and, above all, by the Solicitor-General, then Sir Roundell Palmer, now Lord Selborne, will amply repay perusal. Sir G. C. Lewis very forcibly pointed out what a powerful engine for despoiling and for weakening a hostile nation is given on land by the system of levying contributions, to which nothing analogous exists or can exist at sea. If it were not for the enemy's right to seize ships and cargoes, pri- vate property at sea would be privileged immeasurably beyond private property ashore. In part of this speech he said, " There is another important distinc- tion between land and maritime warfare, upon which the whole question may be considered to turn. When you conquer a country you conquer its Government ; you have then conquered that engine by which the country may be plundered." Sir George illustrated this by referring to the enormous sums which Napo- * See Hansard, 3rd series, vol. clxv. p. 1359 et seq. and p. 1599 et seq. OP INTEENATIONAL LAW. 555 leon I. compelled Prussia to pay in the war of 1807-1808*. He then proceeded to observe, " With regard to the sea, there is no similar engine. There is no Government which exercises any such power at sea. The sea is merely the highway of nations. It is not the subject of Government or of sovereignty ; and the only way in which a belligerent can exercise any control over the property of enemies floating on the sea is by capture by means of armed ships." 517. Sir Roundell Palmer thus powerfully and con- clusively crushed the Portalis paradox about war not concerning private citizens. " If there be any principle of the law of nations sir Eoundeii more cardinal than another, it is that in war Govern- moiition of the ments are identified with their people, that you cannot radox.'^ ^^ make war upon the Government and have peace with their people, that the people are bomid up with the Government and the public interests of the nation for better or worse. All the great writers on the subject have laid down that principle ; they have said that the property of the individual, as part of the property of the nation, is responsible for the liabilities of the nation in a question with the foreign belligerent — that the nation and the individuals who compose it are one and the same, and no distinction is to be made between the aggregate and the individuals." 518. We now have to consider certain rules which Euieaasto Maritime Capture and * They amounted, according ling, being four times the '*» ^"''"Jents. to the accounts of Napoleon's amount of the whole ordinary own commissioner, Count Daru, annual revenue of the country, to twenty-four millions ster- See Alison, vol. yi. p. 304. 556 PIEST PLATFOEM govern the taking and the confiscation of property- liable to hostile capture at sea, and which in many points differ from the rules and customs as to a belli- gerent's right to seize property on land. The very terms wrhich are applied to the subject-matters of capture are distinct. Property taken on land is called "Booty;" property taken at sea is called "Prize." The law as to Prize is administered by special courts Prize Courts, called " Admiralty Courts," or Prize Courts*, which have long been instituted in civilized countries, and which are commissioned by the Sovereign Powers of those countries to take cognizance of most naval matters, and particularly of all questions as to legality of capture, and its incidents, as to what property is or is not lawful prize, as to its disposal, and as to the various rights and claims connected with it. 519. It is usual among civilized States for the Sovereign Power to issue a proclamation to its Admi- ralty Courts with directions as to their hearing and making judicial determination respecting ships and cargoes taken from the enemy. Of course, no State can give its own Prize Courts any authority which is contrary to the law of nations ; but it may empower them to deal with matters which that Law does not determine ; such, for instance, as the division and appropriation of prize-money. The general rule of International Law is that the property in prizes rests in General powers and usages of Admiralty Courts. * See, as to the origin of Admiralty Jurisdiction in gene- ral, Sir Travers Twiss on Duties and Eights of Nations in Times of War, 2nd ed. vol. ii. p. 136, and p. 142 and the subsequent pages. OF INTEENATIONAL LAW. 557 the Sovereign State — " Parta hello cedunt reipublicce ;" but the local laws of each State may, and frequently do, provide that the actual captors shall receive speci- fied portions of the proceeds of the capture. In de- fault of being instructed by any such special procla- mation or enactment issued by the sovereign body of their State, the Admiralty Courts of a belligerent proceed according to the knovi'n and established usage of Admiralty law, and according to the law of na- tions*. 520. Maritime warfare is now and for several cen- By whom turies has been principally carried on by public ships w^ar/are is of war, commissioned by the sovereign power of the Belligerent State, and officered and manned by those who are in the regular service of the State. But the practice has also existed and cannot be regarded as extinct, of a State authorizing private persons to fit out armed vessels at their own risk, and to carry on a war of depredation against the enemy's commerce for their own pecuniary benefit. War- vessels of this kind are called "Privateers." A Privateer, though of Pnyateer- owned, commanded, and manned by private persons, ™^' must have a commission from the State against whose enemies she acts, which commission authorizes her to seize and take the ships and goods of the hostile belli- gerent. It is this commission, and this alone, that gives the Privateer her right to use violence and to take prizes ; and it has been usual for civilized Powers, when employing this kind of naval force, to regulate * SeeTraversTwiss,pp. 335, judgments ttere referred to; 336, 340 ; and Lord Stowell's and see Manning, p. 472. 558 EIEST PLATFORM Gross abuses attendant on Privateering. Attempt made to abolish PriTateering by the Powers that signed the Treaty of Paris. and check as far as possible the conduct of private cruisers, by issuing strict instructions to them, and by making their owners give bonds with heavy penalties for their observance of those instructions. But it has been always found in practice that privateering is attended with gross abuses : it is carried on by men who enter into it solely for the sake of plunder ; both officers and crew are in general inferior in personal character to members of the State's regular navy ; and they are not influenced by any regard for the general character of an honourable profession. Their disci- pline is lax ; they have many means and occasions for committing acts of rapaciousness and cruelty without the risk of immediate detection and exposure ; and they are generally found to think more of gratifying their own cupidity than of observing the rights of neutrals or the common laws of humanity*. Conse- quently many attempts have been made to abolish Privateering by general consent of nations. 521. The latest and greatest measure of this kind was " the Declaration of Paris " in 1856, when the Plenipotentiaries of Great Britain, France, Austria, Russia, Prussia, Sardinia, and Turkey signed a mani- festo containing certain propositions relating to Mari- time Law. The first of these proclaimed that " Pri- vateering is and remains abolished." This alteration of International Law could, of course, only be binding on the Powers that consented to it ; and the Declara- * Seo the opinions on this subject professed by numerous writers on International Law, cited in Woolsey, p. 29, and in Halleck, p. 392. OF INTERNATIONAL LAW. 559 tion contained a statement to that effect*. It was Thisagree- communicated to other States ; and in Europe it ^ii^r ^optoJ, met with universal acceptance, except from Spain. bythe^unLa In America it was adopted by Brazil, Chili, the Argen- ^'^*'''^' tine Confederation, Ecuador, Guatemala, Hayti, and Peru. But the great maritime and commercial Power of the West, the United States, refused to concur in the abandonment of the right to commis- sion Privateers, unless there was a further agreement to exempt henceforth the private property of the sub- jects of a Belligerent Power from seizure by the public armed vessels of the enemy, except in cases of contra- band of war. This topic has been already discussed in this chapter f. 532. The right of maritime capture would be of Eight of little practical value, if the war ships of a belligerent Search. had not also, in time of war, the right of visiting and searching the merchant- ships which they meet with, in order to ascertain their real nationality. If this were not so, the mere use of a neutral flag would give un- limited protection to hostile ships and cargoes. But the branch of the International Law which deals with visitation and search, is much more important with regard to the rights and the liabilities of Neutrals than as to any jural questions that can arise between * As to the effect of the f The other provisions of Declaration of Paris, if one of the Declaration of Paris will the Signatary Powers should be be spoken of in the next chap- engaged in war with a Power ter, when we consider the which has not become a party effect of war on the rights and to that Declaration, see Tra- duties of neutrals, vers Twiss, p. 423. 560 PIEST PLATFOEM one hostile Power and its adversary. 1 will therefore defer the consideration of this topic to the next chap- ter ; and I will, for the same reason, defer entering on the important and interesting subjects of whether the enemy-character of the ship, in which the goods of a neutral are conveyed, is communicated to such goods ; and whether, on the other hand, enemy-goods are privileged from seizure, if found on board a neutral ship. I shall also in that chapter deal with the sub- jects of contraband and blockade, and of the illegality of carrying on hostile operations within the ports or territorial waters of a neutral. At present I speak only of the simple case in which a public ship of war captures an enemy-ship and cargo on the high sea, or in its own or in the enemy's territorial waters. Of bringing in 623. It is the duty of the captor to bring his adjiidfcation. prize, as soou as conveniently may be, within the juris- diction of a prize-court of his own State. The Admi- ralty Courts (or Prize-Courts) of a belligerent State may be held at any port or convenient place in the territory of the State itself, or of another State which is its ally in the war ; but it must always be a court of the captor's own State*. The Prize-Court of an ally cannot legally condemn the captured property as lawful prize ; and it is never lawful for a Prize-Court to Only the Carry on its proceedings in a neutral country. Chan- can adjudicate cellor Kent observes, that "Prize or no Prize is no Prize.™ ""^ question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be, that the Sovereign of the captors has a right to * Abdy's Kent, p. 274. OF INTEENATIOlSrAL LAW. 561 inspect their beliaviour, for he is answerable to other States for their acts "*. 524. It is usual, and it is desirable, that the cap- Cases when tured vessel shall be taken to the port where the Prize- yessei need not Court is sitting, which is to adjudicate respecting her. the Port of But this is not invariably necessary. The Court may ^" '"* '""■ have jurisdiction, although the prize is lying in a neutral port. In an American case, where this point was raised, Mr. Justice Taney said : — " A Prize-Court may always proceed, in rem, whenever the proceeds of the prize can be traced to the hands of any person whatever. As a general rule it is the duty of the captor to bring it within the jurisdiction of a Prize- Court of the nation to which he (the captor) belongs, and to institute proceedings to have it condemned. But there are cases where, from existing circumstances, the captors may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the com- mander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficent crew to man the captured vessel, or where the orders of his Government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may after- wards proceed to adjudication in a court of the United States "f. 525. It is not likely that there will be hereafter many cases of prizes being left in neutral ports while proceedings respecting them are being taken in * Abdy's Kent, p. 274. mery, 13 Howard, p. 115, t See Jackson v. Montgo- cited in Abdy's Kent, p. 276. 2 o 562 FIEST PLATFOEM a port where an Admiralty Court of the captor's nation is sitting, inasmuch as it is becoming usual for neutral Powers to issue proclamations forbidding the bringing of prizes into their ports by the war-ships or privateers of either belligerent ; but the destruction An enemy's of the capturcd ships and cargoes of an enemy at sea, maybe sum?° without any attempt to bring them into port, has been stroyed by the ^^^ IS surc to be again extensively practised by the captors. cruisers of a nation whose naval force is numerically Practice of the inferior to that of its antagonist. It was the regular cruisers in the systcm on which the Alabama and other war-ships of Civil War. the Confederates acted during the late Civil war ; and when complained of, it was justified by citing the ex- Praoticeofthe ample Set bv the United States in their war with United states , "^ ^i • p t in the war of England m 1812 and 1813. Chief Justice Cockburn, 1812 in his judgment in the Geneva Arbitration, says of this system, that, "however revolting such a' system of warfare, it is still within the stern principle of inter- national law, relative to war, which justifies both the seizure and the destruction of enemy's ships and goods at sea, on the principle that whatever tends to impoverish the enemy is allowable. The practice had been sanctioned by the conduct of the United States themselves, in their last war with Great Britain"*. Instructions 526. In the same judgment passages are cited from rioanNayy the iustructious issucd by the American Navy depart- adTp't 'Hhl ° ment to their officers in 1812, commanding most plan™" '"^ emphatically the adoption of " tke destructive plan " towards the British merchantmen and cargoesf. * Blue B.ook, p. 91. destruction of the commerce of t "The great object is the the enemy, and the bringing OF INTEENATIONAL LAW. 563 527. It frequently happens that captors at sea, who of Ransoms. are under no orders from their own Government to destroy summarily all that they take, and who have regard to their own pecuniary interest, and also to maintaining the efficiency of their ship for further cruising operations, find it convenient to let their prize go free again on condition of a ransom being paid for her release. This is done by a formal instrument of into port the prisoners, in order to exchange against our unfor- tunate countrymen who may fall into his hands. You will therefore man no prize, unless the value, place of capture, and other favourahle circumstances shall render safe arrival morally certain. You will not agree to the ransoming of any prize. Grant no cartel nor liherate any prisoners except under circumstances of extreme and unavoidable necessity. " The commerce of the enemy is the most vulnerable point of the enemy we can at- tack, and its destruction the main object ; and to this end all our efforts should be di- rected. Therefore, unless your prizes should be very valuable and near a friendly port, it will be imprudent and worse than useless to attempt to send them in ; the chances of recapture are excessively great; the crew, the safety of the ship under your command, would be dimi- nished and endangered, as well as your own fame and the na- tional honour, by hazarding a battle after the reduction of your ofScers and crew by man- ning prizes. In every point of view, then, it will be proper to destroy what you capture, ex- cept valuable and compact ar- ticles, that may be transhipped. This system gives to one ship the force of many. " A single cruiser, if ever so successful, can man but a few prizes, and every prize is a serious diminution of her force; but a single cruiser destroying every captured vessel has the capacity of continuing in full vigour her destructive power, so long as her provisions and stores can be replenished, either from friendly ports or from the vessels captured. * * * * Thus has a single cruiser, upon th: destructive plan, the power, perhaps, of twenty acting upon pecuniary views alone." 2 o 2 564 FIEST PLATPOEM Bansom-biUs. RanBom for- bidden by the municipal laws of some States. Of recapture, and the " Jus postliminii." agreement, called a Ransom-bill, drawn up between the captor and the master of the captured vessel. The latter binds himself and the owner of the ship and cargo to pay a certain sum of money on a day named in the bill. Por this he receives a license for the ran- somed vessel to proceed in safety to a stipulated port within a prescribed time, and with limitations as to the route which he is to take. While the released ship is on her voyage thither she is secured by the ransom- bill against further molestation by war-vessels or pri- vateers of her captor's State, or of any State in alli- ance with it. Some nations (including Great Britain) prohibit their subjects from giving or receiving ran- som-bills ; but the contract is valid according to general International Law ; and ransorn-bills may be enforced by action in the courts of States which have not prohibited them by their municipal laws*. 528. A ship that has been captured by an enemj'', may be recaptured by a friend ; and in such cases it becomes necessary to consider whether the original owner's right of.property is to be considered as having survived the temporary hostile domination, or as having been born again, or whether the vessel, when wrested out of the enemy's possession, is to be considered as a prize taken from the enemy ; which last would seem to be the logical way of regarding it, although the working out of such a theory would practically enrich the recapturing party at the expense of their own fellow-countrymen. In order to obviate this hardship, * Kent (Abdy's edition), p. 321 ; Travers Twiss, p. 356 ; "Woolaey, p. 240. OF INTEENATIONAL LAW. . 565 International Jurists have borrowed from the Roman Law its celebrated legal fiction of the "jus postli- minii ;" though the application of it by modern Pub- licists is by no means identical with what we read of it in the ancient Jurisconsults, in whose time the " jus postliminii" was chiefly important on account of its effect on the status of Romans who had been made prisoners of war by a foreign enemy, but who afterwards returned to Roman territory*. A general description of the Jus Postliminii has already been given in this chapterf. With regard to maritime captures and recaptures the questions which arise as to when and under what circumstances recaptured ships and cargoes may be reclaimed by their original owners "jure postliminii," on condition of paying pjize-salvage to those who have rescued them, are questions which affect almost exclusively members of the same State ; and they are consequently regulated by the municipal legislation of each State on the subject J. 529. Property may be protected either by land or of Licenses to by sea from capture, to which it would otherwise be liable, by the grant of Licenses to trade. As a general rule one effect of war breaking out between States is " the absolute interruption and interdiction of all commercial correspondence, intercourse, and dealing between the subjects of the two countries." These are the words of Chancellor Kent, who further * Woolsey, p. 243. tions,' p. 192, Sheldon Amos's t P. 510 supra, and notes. edition. X Manning's ' Law of Na- ■ 566 • riEST PLATrOEM observes, that " the idea that any commercial inter- course or pacific deahng can lawfully subsist between the people of the Powers at war, except under the clear and express sanction of the Government, and without a special license, is utterly inconsistent with the new class of duties growing out of war "*. When, for exceptional and temporary reasons, a license to carry on a specific trade or branch of commerce is granted, it is usual to specify the places between which and the parties by whom this may be done, and also the time during which it may be done, the particular branch of trade or commerce, and the necessary regu- lations and formalities which are to be observed. oftbepiun- 530. It has been my duty to mention in this chap- towns taken ter many proposals for new rules purporting to soften ysoim. ^j^^ severity of the laws of war; and it has in some instances been my unpleasant duty to point out reasons against the adoption of proffered innovations. But there is one matter as to which all reasons of humanity, justice, and expediency (as I believe) concur in de- manding a reform of an old-established but hideous Reform of the abomiuatiou. I mean the abohtion of the practice of Ithe&iUs'oi giving up towns, which are taken by assault, to be sacked ^fnt mos™ by the victorious soldiery. The Brussels Conference, by the 18th Article, chapter iv., of their recommenda- tions, seek to lay down as a rule, that " A town taken by storm shall not be given up to the victorious troops to plunder." In passages which have been cited in this chapter, from various Jurists, as to the usages of warfare, there * Abdy's Kent, p. 204. desirable. OP INTEENATIONAL LAW. 567 are expressions which certainly admit the hability of private property in a besieged town to be seized as booty of war by the conqueror, where resistance has been protracted to the utmost and where the place is ultimately taken by assault. If nothing worse than this ordinarily happened when a town is stormed — if the successful general and his officers preserved disci- pline among their troops, and protected the persons of the townspeople, the enforcement of the victor's right to booty might be plausibly advocated ; though even then we should be bound to remember that in the vast majority of cases the townspeople are not responsible for the prolongation of the defence and for an assault being made necessary : it is the commandant of the garrison and his military advisers by whom alone such matters are determined. It may also be observed that the strict right of war, so far as International Law deals with it, gives the captured property to the Sovereign of the State, whose army takes the town, and not to individual members of that army. The Sovereign might well decline to exercise that right, if it could be enforced only by the armed bands of angry soldiers, excited by the peril and the struggle of the assault, who rush thence to wrest from crouching, vainly hiding citizens every object that excites avarice, and who are let loose to practise any brutality which other passions may prompt amid the defenceless house- holds, which are abandoned to their licentiousness and cruelty. If it is necessary that the modern soldier should be stimulated to go through the special risks of an assault by the hope of special indulgences, a sum 568 PIEST PLATFOEM General Napier cited as to the practicability of abolishing this abuse of warfare. might be raised after the capture by requisition on the property in the town and divided among the troops engaged in the storm, as prize-money is among the crews engaged in a sea-fight. But it is a hbel on the armies of modern civihzed nations to assert that they need such a stimulus to make them do a soldier's duty, or to regard them in the same light as that in which history teaches us to view the ruffians who made up the Free Companies of mediaeval Europe, or those who devastated Germany in the last portion of the Thirty Years' War. Our military historian Napier has denounced this fallacy in his well-known descriptions of the sieges of Ciudad Rodrigo and Badajoz. He says most truly, that " Undoubtedly if soldiers hear and read that it is impossible to restrain their violence, they will not be restrained. But let thd plunder of a town after an assault be expressly made criminal by the articles of war, with a due punishment attached ; let it be constantly impressed upon the troops that such conduct is as much opposed to military honour and discipline as it is to morality ; let instantaneous punishment (death if necessary) be inflicted for such offences. With such regulations the storming of towns would not produce more mili- tary disorders than the gaining of battles in the field." General Halleck cites and adopts these opinions. I will conclude this chapter with an extract from the remarks which the American military publicist adds on the subject, and which are valuable as em- bodying the testimony of an experienced veteran as well as the judgment of a well-read jurist, and the OF INTEENATIONAL LAW. 569 feelings of a just and humane man. General Halleck General says, " We sometimes hear of a captured town being sacked, and the houses of the inhabitants being plun- dered, on the plea that it was impossible for the general to restrain his soldiery in the excitement and confusion of storming the place ; and under that softened name of plunder it has sometimes been at- tempted to veil ' all crimes which man in his worst excesses can commit — horrors so atrocious that their very atrocity preserves them from our full execration, because it makes it impossible to describe them.' It is true that soldiers sometimes commit excesses which their officers cannot prevent ; but in general, a commanding officer is responsible for the acts of those under his orders. Unless he can control Ids soldiers he is unfit to command them. The most atrocious crimes in war, however, are usually committed by the militia and volunteers, suddenly raised from the population of large cities, and sent into the field before the general has time or opportunity to reduce them to order and discipline. In such cases the responsibility of their crimes rests upon the State which employs them, rather, than upon the general, who is, perhaps unwillingly, obliged to use them" *. * Halleck, pp. 442, 443. 570 FIEST PLATPOEM CHAPTER XII. RiOHis AND Liabilities aeisins ottt op a State op Wabfabe WITH REGARD TO NeTTTEALS. This branoli of Law chiefly of Modern Development. — The name formerly unknown : Grotius, Bynkershoek, and Vattel re- ferred to. — Great service to International Law done by the early Rulers of the United States. — Jefferson's Exposition of true Status and Duties of a Neutral. — Kinds of Neutrality. — Natural or Normal Neutrality. — Conventional Neutrality. — Political Condition of Conventionally Neutralized States. — Qualified Neutrality unreal. The real Condition is that of Alliance. — Assistance rendered under it is Hostility towards the other Belligerent, though he may, in his discretion, over- look it. — ^Attempts to establish " Priendly Neutrality." — Such a Condition is a mere deception. — " Conventional Neutrality " is the only exceptional Neutrality. — Definition of Natural Neutrality. — Determination of Stand-point whence its Eights and Duties are to be regarded. — Yiews of Belligerent. — Views of the Neutral. — Neutral Stand-point the true one. — Inviolability of Neutral Territory and Territorial Waters. — Eules restrictive of Conduct of Belligerents within such localities. — Eegulations as to admission of Privateers and Prizes, and as to supplies of Coal. — Grant of Asylum. — Un- lawful to levy forces in Neutral Territory, or to march Troops across it. — Difference between State-Acts of Neutrals, and private Acts. — Contraband. — Blockade. — Enemy-goods in Neu- tral Ships : Neutral Goods in Enemy-ships. — Declaration of 1856. — ^Visitation and Search. — Eecognition of Belligerent Eights.; — Eecognition of Independence. Neutrals" ^^^- "^^^ greater part of this important branch dera^''^™° ^^ International Law has been developed during OP INTEENATIONAL LAW. 571 recent times ; indeed the very phraseology of it is quite modern. As Mr. Wheaton has remarked, there are no words in Greek or Latin that answer precisely to our terms " neuter " and " neutrality "*. Even in the time of Grotius this poverty of the lan- guage of jurisprudence continued. This furnishes a proof of how little the rights and duties of third parties were then considered by Statesmen and Publi- cists. Grotius almost apologizes for devoting any The subject r 1 • 1 1 T • 1 Ti slighted by part 01 ms book to those " qui extra bellum sunt Grotius. positi, quando in hos satis constet nullum esse jus bellicum "f. Those whom we call " Neutrals " re- ceive from him the cumbrous and vague title of " hi, qui in bello medii sunt." The chapter which he gives to them is " short and meagre, with no allu- sions to the subject of maritime neutral law "J. A century afterwards Bynkershoek wrote more fully and How treated judiciously in his ' Uusestiones Juris Fublici re- hoek. specting those whom he sometimes calls "non hostes," and sometimes " medii" in a war§. Vattel * Elements, torn. 2. p. 72. est in causa belli alterum alteri -j- De Jure Belli ac Pacis, lib. ne proferant ; et eo soli reote iii. cbap. ix. defunguntur, qui neutramm X 3 Phillimore, p. 201. partium sunt. Si reote judico, § " 'Non Hostes' appello, qui belli justitia vel injustitia nihil neutrarum partium sunt, nee ex quicquam pertinet E,d com- foedere bis illisve quicquam de- munem amicum ; ejus non est bent : si quid debeant, foederati inter utrumque amicum sibi sunt, non simpliciter amici. * * invicem hostem sedere judicem, Horum oiScium est omni mode et ex causa sequiore vel iniqui- eavere ne se bello interponant, ore huic illive plus nimisve et his quam iUis partibus tribuere vel negare. * * * Si sint vel sequiores vel iniquiores. medius sim, alteri non possum • BeUo se non interponant' — hoc prodesse ut alteri noceam." 573 PIEST PLATPOEM Improvement by Vattel's treatment. Introduction of the teraia " Neuters" and " Neu- trality." Great service done to Inter- national jus- tice as to Neutrals by Washington and JefEerson. gives the seventh chapter of his third book to the consideration "De la NeatraHte, et des troupes en pays neutre." By him, and since his time, the simple and expressive terms of " Neuters " and " Neutra- lity " have been brought into general use. And he supplies a good definition when he says that, "Les peuples neutres, dans une guerre, sont ceux qui n'y prennent aucune part, demeurant amis communs des deux partis, et ne favorisant point les armes de I'un au prejudice de I'autre "*. Vattel did much in this, as in other departments of International Law, to im- prove public opinion and political practice ; and the importance of ascertaining and of respecting the true position of Neutrals with regard to Belligerents be- came more and more generally recognized during the last half of the 18th century. 532. The great Statesmen who wisely and firmly guided the policy of the United States during the first twenty years after the recognition of their Federal Republic as an Independent Power — a period of almost unprecedented conflict and excitement among the principal communities of the civilized world — de- serve the credit of having done most to ascertain and to establish the sound principles on which Neu- trals should act towards Belligerentsf. When war Bynk. Qusest. Jur. Pub. lib. 1, ch. ix. See "Wheaton, Ele- ments, torn. ii. p. 73 ; Travers Twiss, 'Law of ISTations,' vol. ii. p. 428; and Hall, 'Eights and Duties of Neutrals,' p. 35. * Livre iii. cb. vii. pars 103- 110. t See Hall, ' Eights and Du- ties of Neutrals,' p. 44 ; 3 Phillimore, p. 217. OF INTEENATIONAL LAW. 573 broke out between England and Revolutionary Trance in 1793, attempts were made by the French agents to use the American ports for fitting out cruisers against English commerce. On complaint of this being made by the British Minister to General Washington, the President of the United States, a formal declaration was issued by Mr. Jefferson, the Foreign Secretary of the States, which declared that " It is the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits." So far Mr. Jefferson was only following older authorities. But the American Statesman went further, and pro- nounced that " it is the duty of a neutral nation to prohibit such as would injure one of the warring powers "*. This important principle was first clearly stated Previous thus, and was consistently acted on by the new Re- doftrfnt^^and public of the Western World, after the Jurists of the practice™?^ '" Old World had long written confusedly and doubtingly, i^atelmefof and after the Statesmen of the Old World had long ^orid^ been " incoherent " in their practice with regard to it. In the same year (1793) Mr. Jefferson, in a State- Jefferson's paper transmitted by him to the American Minister despatch on in Paris, laid down the same rules still more fully. ® ™ J^ According to that document, " A neutral nation must in all things relating to the war observe an exact im- partiality towards the two parties. No succour should be given to either, unless stipulated by treatyf, in * Cited by Mr. Hall, p. 44. bind one State to interfere in t As to the force of treaty- the affairs of others, see infra, stipulations which purport to on " Qualified iN'eutrality." 574 EIEST PLATFORM men, arms, or any thing else directly serving for the war. The right of raising troops being one of the rights of sovereignty and, consequently, appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent. If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments "*. LiabiKty of 533. Thcsc principles wiU be found extremely valu- State for Acts ii-it -.i i i p of its subjects, able m dealmg with one very large class oi cases, in which disputes often arise between belligerents and neutrals. Such cases involve a subject which has already been discussed to some extent in the eighth chapter of the present work — namely, how far a State is responsible for wrongful acts committed without her orders by members of her community against other Statesf . Another important branch of Neutrality Law is the International Law as to Contraband and Blockade. Before we proceed to these and certain other necessary topics, it is desirable to revert to the meaning of the terms Neutral and Neutrality. We will consider the character of Conventional Neutrality as distin- guished from Natural Neutrality; and we will ex- amine whether what are called " Qualified Neutrality " Further con- sideration of term " Neu- trality." * Cited in Hall, p. 45 ; and see Wheaton, Elements, torn. ii. p. 84. t See supra, p. ISV et seq., and especially the passage there cited from Sir Alexander Cock- burn's judgment in the Geneva Arbitration. OF INTEENATIONAL LAW. 575 and " Friendly Neutrality" are ever to be admitted as lawful. 534. The ordinary and normal condition of neutra- Natural or lity is the condition in which States find themselves NeuSaUty. which are no parties to a war between two more belli- gerents. This condition of natural neutrality exists by virtue of the general principles of International Law, and not by virtue of any special compact. This is the kind of neutrality which is intended through this chapter wherever the term is used generally and without any limited or special meaning being assigned to it by the context. 535. Conventional Neutrality exists by virtue of Conrentionai treaties, to which the conventionally neutral State ^""^ '^'' and the belligerent States are parties. It sometimes happens that the geographical position of a State be- tween parts of the territories of other States makes it a matter of advantage to those other States that in the event of war breaking out between them, the intermediate territory of the State in question should not be made the scene of hostile marches or opera- tions, but should act as a screen and as a protection to those portions of the frontiers of its neighbours to which it is conterminous. Such an agreement is almost certain to be to the advantage of the State the soil of which is thus made privileged ground. It has been thought that the best way to secure this was by making the State in question expressly and permanently neutral. We accordingly read of treaties by which the neighbouring States, some or all of them, bind themselves to respect and maintain the 576 PIEST PLATFOEM Instances of Swi'-zerland and Belgium. Political oon- dition of a Conventiou- ally Neutra- lized State. Qualified Neu- trality unreal. Nature of the so-called Qualified Neutrality. neutrality of a particular State, which, in return, binds itself to take no part in their wars with each other. The histories of Switzerland and of Belgium will give instances of European States thus neutralized. It may also sometimes be thought that the general interests of the commonwealth of civilized States will be promoted by the complete or partial neutralization of a particular State ; and accordingly we find Powers becoming parties to treaties of this kind, whose terri- tories are more or less remote. 536. A State whose neutrality is thus protected by treaty, undergoes some limitations of its liberty of political action. It must enter into no engagements which might in any way interfere with its perfect im- partiality in the event of war breaking out, or with its total abstinence from cooperation with either party. It cannot combine the characters of prospective neutral and prospective ally*. 537. It sometimes happens (and it used formerly to be much more often the case) that a State binds itself to assist another State in its wars by grantin_g rights of passage to armies, or special privileges to fleets and cruisers, or by supplying defined amounts of auxiliary troops or of ships of war. If the State with which such covenants had been made, went to war with any third State, the position of the covenant- ing State towards such third State used to be termed a Condition of Qualified or Imperfect Neutrality. * For a further account of the jural positioB of conventionally neutral States, see Wheaton's Elements, tome ii. chap. iii. sect. 4. OP INTEENATIOKAL LAW. 577 Frequent discussions will be found in the older Pub- licists whether the Covenanting State assumed any, and, if so, what amount of hostile character towards the third State, so long as the Covenanting State kept strictly within the limits of its treaty-obligations as to the amount of succour which it supplied. But it is obvious that a State, which sends its soldiers and fleets to take part in a war, becomes one of the belligerents ; The real con- and covenants of this kind ought to be regarded as of Alliance. covenants of Alliance. The aid to be rendered or the favour to be shown may be so slight that it may be overlooked by the Belligerent whom it more or less injures*. Even if the aid be considerable, the circum- The injured stances of the case may make it politic for the injured may overlook Belligerent to renounce his right of treating the in- """ °^ ' ^' truder into the quarrel as an avowed enemy. But he But he has a certainly has the right to do so; and, if the aid- theAuxiUary PoWSr 3,8 Ills supplying State disclaims the character of Ally, it enemy. may render itself liable to be regarded as an unlawful Further liabi- meddler in the affairs of other States, and as guilty of Auxiliary! that kind of Intervention which authorizes the counter- acting Intervention of other Powersf . * " It is manifest that agree- bably be overlooked ; otherwise, ments like these partake of the it -will expose the nation far- nature of Alliance. The other nishing the assistance to the Belligerent then is free to de- hostility of the other." — Wool- cide -whether he wiU regard sey, p. 262, and see 3 PhUli- such a State as neutral or as an more, p. 221. ally of his enemy. If the as- t See page 295, supra, on the sistance to be rendered is tri- " Lawfulness of armed Inter- . fling, and has no reference to a vention to repress the Inter- particular case or a war with vention of others." a particular nation, it wiU pro- 2p 578 PIEST PLATFOEM Attempts to establish a " Benevolent Neutrality." Eightly repu- diated by Eng- lish States- Canning's ad- vice "Not to sneak into a war." 538. An attempt has sometimes been made by one of two Belligerents to induce a third State to treat it with what is termed " a Benevolent Neutrality ;" that is to say, the third State is desired to give it all pos- sible aid, and to obstriict its adversary as much as possible, while keeping within the letter of Interna- tional Law as to what acts are strictly permissible or not to Neutrals. Our EngHsh Statesmen on a recent occasion properly refused to acknowledge the rightful existence of any Neutrality of the kind*. Neutrality means impartiality, or it means worse than nothing. If a State is convinced that the cause of one of two Belligerents is thoroughly just, and that the cause of the other is so flagrantly unjust as to make opposition to this last-mentioned Belligerent a duty towards the general commonwealth of States, let the State, which thinks so, act, if it thinks fit, openly and honestly up to its opinions by becoming the Ally of the party which it believes to be in the right. But it is mere hypocrisy to call itself a Neutral and to be in reality a partisan. Moreover the State, which tries thus to influence the fortunes of a war without exposing itself to the responsibilities of warfare, commonly fails in attaining its object. Sooner or later it usually is made a party to the conflict which it promotes ; and it has the unpleasant consciousness of finding that " it has sneaked into a war "f . * See the diplomatic cor- respondence between Count Bernstorff and Lord Granville during the war between Ger- many and France in 1870. t See Canning's Speeches, vol. V. pp. 51, 52, cited in 3 Phillimore, International Law, p. 216. OF INTEENATIONAL LAW. 579 539. It follows that the only kind of special or exceptional Neutrality, that is to be recognized in Jurisprudence, is the " Conventional Neutrality " al- eady explained. This requires no further notice ; and in the remainder of this chapter the Neutrality of which we discuss the incidents means common, natu- ral, normal Neutrality. 540. We may take a general brief definition of it from Sir Alexander Cockburn's Geneva judgment : — " Neutrality may be said to be the status of a Definidon of country relatively to two others which are at war with traiity. one another, while it remains at peace with both and gives assistance to neither." 541. In ascertaining the rights and duties of a Need of de- Neutral according to this definition, it is important to standpoint 1 •If ^ • 1 n , .!■. whence we are make up our mmds irom which oi two standpoints to regard we are to consider the subject. There is the Bellige- and duties^ rent-interest standpoint, and there is the Neutral- interest standpoint. The Belhgerent, when he looks to views of the 1 • 1 r-i • Belligerent, any act or any refusal to act by a third State, is apt to regard it solely with reference to the question, " Is the third State hurting my chances of success in the war ?" If (for example) his enemy gets supplies of arms or ammunition from the third State, or if his enemy's ships at critical periods get shelter (however brief) in the enemy's ports, the Belligerent is apt to think himself injured, and to complain vehemently of the Neutral from whom his enemy receives benefits. On the other hand, the Neutral State says, "I was at Views of the peace with both of you, and I wish to remain so. I had nothing to do with your quarrel, and I both 3p2 580 FIEST PLATFOEM intend and pledge myself to have nothing to do with it. Only be good enough to abstain from interfering with me and mine, and to let my subjects pursue their ordinary callings of manufacturing, of buying and selling, of carrying and traflficking as usual, subject to the well-known exceptional rules about Contraband, and Blockade, and Search ; and, as to these, be very strict in keeping within the limits which International Law imposes on your extremely inconvenient preroga-- tives. With respect to my ports and havens, I am not going to deny to any vessel the shelter which the feelings of humanity as well as of hospitality enjoin ; but I will make such regulations, and I will enforce them with such impartial strictness on both you and your adversary, that you shall not be able to make my territory or my territorial waters your scenes of battle or plunder ; nor shall you use them as lairs whence you may pounce upon your prey." The Neutral 542. Certainly the claims of the Neutral to be true one. recoguized as "master of the situation" are better- founded than those of the Belligerent ; and they are entitled to preference on all sound principles of Utili- it is for the tariauism. During almost all wars, and certainly at benefit of the . . e ^^ • ■ f • ■^■ -i greatest pos- the mceptiou 01 all wars, the great majority oi civilized sible number ;„, ,, ,..„,. and it is for btatcs are ucutral ; and it is tor the interest oi man- good of man- kind that Neutrality should be as extensive, and Bel- ligerency as limited as possible. The cases where the common good of nations requires a general armed combination to restrain and quell an enormous offen- der* are so rare, and such duty is so seldom heeded, * See suj>rd p. 44, as to the Solonian maxim. bind. OP INTEENATIONAL LAW. 581 that such cases may be regarded as exceptional. If Belligerents are to be allowed to construe and define the rights and duties of Neutrals according to their own (the Belligerents') convenience, the consequence Mischief of must be that Neutrals will be continually liable to be TOuvemence " drawn within the vortex of wars with which they rento'thf " have no concern"*. In the judicial enunciation of f^'^°^ principles of decision which was given at the Geneva Arbitration by M. Staempfli, the Arbitrator appointed by the President of the Swiss Confederation, it is w^ell said, that " We must beware of rendering the Remarks on condition of Neutrals too difficult and almost impos- M!Vtaempfl'i. sible. The importance of circumscribing war is a matter of continual remark ; and if Neutrals are to' be overwhelmed with a burden of precautions and a weight of responsibility which is in excess of the interest they have to remain neutral, they will be forced' to take an active part in the war ; instead of a proper inaction, we should have an increase of hostili- ties. There will no longer be any medii between combatants ; the disasters of war will be multiplied ; and the part of mediators, M'hich Neutrals have often undertaken and brought to a successful conclusion, will for ever disappear "f. 543. I now proceed to consider a little in detail General oUi- the rights and duties of Neutrals, the general condi- f^eSrakf * See Sir A. Cookburn's tanceoftheinterestsof Neutrals, judgment, Blue Book, North Heffter, Droit International, America, no. 2 (1873), p. 63. p. 274, sect. 144 ; Bluntschli, t Blue Book, North America, p. 46 ; Woolsey, p. 261 ; Abdy's no. 1, 1873, pp. 185, 189. See Kent, p. 322, also as to the primary impor- 582 PIEST PLATFOEM How far their rights and duties origi- nate from a state of war- fare. Inviolability of Neutral Territory. PriTlleges of Territorial Waters, tions of Neutrality (as laid down by Dr. Gessner, and as adopted by M. Staempfli in the judicial State-paper already referred to) being : — ■ "1. To take absolutely no part in the war, and to abstain from all that might give an advantage to one of the belligerent parties. " 2. Not to permit on the neutral territory any im- mediate hostility of one party against the other "*. 544. Some of the rights of the Neutral State, of which I am about to speak, cannot be quite accurately termed rights arising from a condition of warfare between other nations, inasmuch as they are rights of Sovereignty and of exclusive Self-Government, and are the essential and constant attributes of all political communities which are recognized as States in Inter- national Jurisprudence. But they are brought into prominent notice and into practical importance by the outbreak of a war between others ; and the great majority of matters which we must discuss in this chapter originate in belligerency from which the State abstains as a party, but by which it is unavoidably affected to a greater or less degree, according to geo- graphical position, commercial habits, and numerous other circumstances. 545. One of the plainest rights of a Neutral State is the inviolability of .its territory. The Belligerents must not break its peace by making it their battle- ground. A similar privilege is extended to the terri- torial waters of a Neutral — that is to say, not only to the ports, havens, gulfs, bay?, and narrow seas which * Blue Book, Nortli America, no. 1, 1873, pp. 189, 195. 0¥ INTEENATTONAL LAW, 583 are held to be parts of its territory, but also to the seas which wash its coasts to a distance from the shore, which has hitherto been computed at a maritime league, but is likely henceforth to be reckoned at five miles*. "The armed cruisers of belligerents, while General within the jurisdiction of a Neutral State, are bound to abstain from any acts of hostility towards the sub- jects, vessels, or other property of their enemies ; they cannot increase their guns or military stores, or aug- ment their crews, not even by the enrolment of their own countrymen ; they can employ neither force nor stratagem to recover prizes or to rescue prisoners in the possession of the enemy; nor can they use a neutral port, or waters within neutral jurisdiction, either for the purpose of hindering the approach of vessels of any nation whatever, or for the purpose of attacking those which depart from the ports or shores of Neutral Powers. No proximate acts of war, such as a ship stationing herself within the neutral line, and sending out her boats on hostile enterprises, can in any manner be allowed to originate in neutral territory ; nor can any measure be taken there which will lead to immediate- violence "f . 546. The following additional rules as to the re- strictions to be imposed by Neutrals on Belligerent ships of war and privateers are taken from a list drawn up by the Italian Jurist Azuni, and cited by Sir Travers Twiss : — "They p. e. privateers and all vessels of war] may other reatric- not keep sentinel in the port, nor seek to procure Bdiig^rente, ° „_^ ,_,,,, _^„ cited from * See supra, p. 232 et seq. f Halleck, p. 523. Azuni, 584 FIEST PLATFOEM information about the vessels which are likely to touch there. In case that they descry any of them, they are not to sail out of the port for the purpose of attacking them. If they should do so, they may be fired at from the batteries and ships of war in port, and com- pelled to return. " They may not set sail after an enemy's ship has tripped her anchor ; they ought to allow at least an interval of 24 hours to elapse between its departure and their own. After this interval has elapsed, if the enemy's ship is still in sight of the port, a belligerent vessel ought to delay its departure until the other vessel is out of sight and the direction of its course cannot be known "*. Rules issued 547. Clear and valuable declarations of Interua- states^in "855. tional Law and Practice in some important matters of this kind are to be found in a manifesto issued by the United States in 1855, on occasion of the war between Russia on the one part, and Great Britain, Trance, Turkey, and Sardinia on the other part. " 1st. BeUigerent ships of war, privateers, and the prizes of either are entitled, on the score of humanity, to temporary refuge in Neutral waters from casualties of the sea or war. " 2nd. By the Law of Nations, BeUigerent ships of war, with their prizes, enjoy asylum in Neutral ports for the purpose of obtaining supplies or undergoing repairs, according to the discretion of the Neutral Sovereign, who may refuse the asylum absolutely, or grant it under such conditions of duration, place, and * See Sir Travers Twiss, p. 4J9. OF INTERNATIONAL LAW. 585 other circumstances as lie shall think fit, provided that he be strictly impartial in this respect towards all the Belhgerent Powers. " 3rd. When the Neutral State has not signified its determination to refuse the privilege of asylum to Belligerent ships of war, privateers, or their prizes, either Belligerent has a right to assume its existence, and enter upon its enjoyment, subject to such regula- tions and limitations as the Neutral State may please to prescribe for its own security" *. 548. Neutral States, in the exercise of that discre- Refusals to . admit Priva- tionary power which, as we have seen, they possess as teers or Prizes, to admitting Belligerent vessels, have not uncommonly \ in recent wars forbidden the privateers of both parties / to enter their ports, and have also forbidden both parties to bring thither their prizes of war. Since war-steamers have become so generally used in naval operations, it has become a question whether supplies of coal to a steam-warship, while in a Neutral harbour, Regulations as are to be regarded as supplies of propelling and direc- ooaT^^ ^ " tive power for purposes of battle, so that they ought to be refused as supplies of ammunition are refused, or whether they are to be regarded as necessary in- struments of locomotion, like the canvas of a sailing vessel. The regulations issued by the British Govern- ment during the war between the Northern and Southern States of America, and during the war be- tween Germany and France, directed that ships of war or privateers of either Belligerent should be fur- nished with only so much coal as might be sufficient * See Sir Travers Twiss, p. 453. 586 riEST PLATPOEM to carry them to the nearest port of their country or some nearer destination, and that no coal should be again supplied to any such ship of war or privateer in the same or any other part under British jurisdiction, without special permission, until after the expiration of three months from the time of the previous supply." Mere passage 549. The mere passage of a Belligerent ship over toriai waters, territorial waters, without the exercise of any violence during such passage, is not usually regarded as a breach of the Neutral's territorial inviolability*. The grant of 550. In discharge of the duties of humanity a ■ Neutral State may allow a defeated or an enfeebled and imperilled land-force to take shelter in its territory ; and we have seen that it may give shelter in its ports and territorial waters to a ship in distress, whether the distress be caused by perils of the sea or perils from an enemy. But, as General Halleck observes, Different rules " Publicists mate a marked distinction between ships and as to the duties of Ncutrals, with respect to the asylum roops. which may be afforded to belligerent ships and that which may be afforded to belligerent forces on land. * * * It is the duty of the Neutral to order the immediate disarming of all belligerent troops which enter neutral territory as an asylum, to cause them to release all their prisoners and to restore all booty that they may bring with them. If he (the Neutral) neglects to do this, he makes his own territory the theatre of war, and justifies the other Belligerent in attacking such refugees within such territory, which is no longer to be regarded as neutral "f. * Abdy's Kent, p. 328. t Halleck, p. 524. OF INTERNATIONAL LAW. 587 551. A Neutral State, besides its right to require Privilege and from Belligerents that they shall not carry on opera- trai to forWd tions of violence of any kind within its territory or o™era within territorial waters, has also the right to require from ofSorerS^ them that they shall not attempt the exercise within lefyingTr ^ its dominions of any acts of Sovereignty whatever, troops^fllting This topic has been already referred to, when attention ti^n^Xf ' was drawn at the commencement of this chapter to the American State-papers, which were issued at the commencement of the war between Great Britain and Revolutionary France. There are some other acts, besides those especially then noticed and prohibited by the United-States Government, which nations at war with each other used often to practise in neutral countries according to the lax habits, which prevailed in Europe as to such matters during mediaeval times, and during modern times also prior to the period of which we have last been speaking. The chief acts of the kind, which require any comment, appear to be the levying and organizing of troops, or of forces of any kind, naval or military, for the purposes of the war, and the marching across any part of the neutral terri- tory of troops intended to take part in hostilities. 552. Long after it was generally admitted by Pub- Long-preva- licists and Statesmen that a Neutral State has the the allowance right to refuse to allow a Belligerent the liberty of of BtS'"^ raising troops in the neutral territory, or of fitting out y^^"^" naval expeditions in the neutral ports, or of inarching a body of soldiery across any part of the Neutral's domi- nions, it was considered that the Neutral might at its discretion lawfully grant such liberties, especially if it acts. 588 PIEST PLATFOEM The sound was ready to grant the same to the other Belligerent principle is, i- • ^ -n i i j.i that it is the powcr upon application*. But sound sense and the the right of general interest of the commonwealth of nations alike the Neutral to ■ n ,• liiii ■ l p prevent such require the assertion and the steady maintenance oi the rule laid down by the United States, that a Sove- reign State not only has the lawful power to prohibit all strangers from exercising acts of sovereignty within its dorninions, but that it is also its duty to enforce such prohibition, when a war has broken out, in respect of which it intends to preserve a condition of neutrality. The arguments by which Vattel demon- strates that a Neutral State cannot justify itself for succouring one Belligerent by professing its willingness to grant equal succour to the adversary! , are conclu- sive as to this matter also. It is impossible to give help of this kind with true impartiality, and with equal benefit to both sides. This truth has been most fully recognized of late years with regard to the levy- ing of troops and fitting out expeditions. President WoolseyJ has well said that " It is impartiality in form only when I give to two parties rights within my territories, which may be important for the one and useless to the other. The United States, in a war between Great Britain and Russia, might allow both parties to enlist troops within thoir borders ; but vs'hat would such a privilege be worth to Russia? And indeed almost every privilege conceded by Neutrals would be apt to inure more to the benefit of one than of the other of two hostile nations." Moreover, as * Martens, pp. 312, 313. f Livre iii. ch. vii. sect. 105. t P. 265. allowed. OP INTERNATIONAL LAW, 589 Vattel has observed, it is not the maintenance of Equality of T . , „ . . „ amounts of equanty m the amount oi troops, or munitions oi war, supply does which each belhgerent obtains, that can constitute real real equality equahty. The circumstances under which the sup- fened. phes respectively are obtained must inevitably differ ; and the difference of circumstances gives one supply a greater or less effect than the other supply can pro- duce on the fortunes of the war. With respect to the transit of troops. Publicists have been more tolerant than with regard to the levy of forces ; and some think that the Neutral may allow such transit, if he grants the same right to both sides*. But the prin- Transit of ciples, according to which the levy is forbidden, apply never to be to the march also. It is certainly an act of intrusive sovereignty when a body of armed men traverses a country, such, body being under the military-law discipline and control of its own officers, who repre- sent a sovereign foreign to the country. The excuse of an impartial readiness to allow rights of passage to the troops of the adversary, when required, is here also an utter delusion. That adversary may never require such a passage ; and the grant of it to the really favoured Belligerent may enable him to execute an operation so important, or to mass suclf a predominant force on a critical point at the right moment, as virtu- ally to decide the warf . * "Wheaton's Elements, tome se concilier avec les lois d'une 2. p. 86 ; Travels Twiss, stricte neiitralite. Car il est p. 443, and others. difficile d'empecher qu'elles t Heffter (page 280, sect, n'exercent quelque influence 147) says well that " Do pa- sur le sort do la gnerre. Pres- reilles concessions ne peuvent que touj ours eUes augmenteront 590 FIEST PLATPOEM Difference 553. In the great majority of cases in which a Bel- between State- , . , . acts of Neu- hgcrent complains against a Neutral, the act, which is of individuals, the roofc of the subject-matter of complaint, is not any regular authorized act of the Neutral Government itself, but is the act of some individual or individuals subject to that Government, for whom the Belligerent claims to hold the Neutral State, as a State, responsible. We have already, while examining the " Perfect Eights of States," considered somewhat fully the principle which binds a State to prevent its subjects from injuring other States*. I refer my readers to that part of this treatise for the reasoning of Vattel and Halleck on the subject ; but I will again quote here part of Sir A. Cockburn's Geneva judgment, which deals with it, on account of its lucid completeness, and also because when taken in the very M'ords of the Lord Chief Jus- tice of England, it bears exactly on the theme of this present chapter, the position of a Neutral relatively to Belligerents. Sir A. Cockburn says : — Part of Sir A. "Whatever obligations attach by the general principles Geneyajudg- of the Law of Natious to the State or Community as a eked. ^^^™ whole, are equally binding on its subjects or citizens ; for the State or Community is but the aggregate of its ■* les forces de I'un des bellige- en accorder simultanement le rants, lui donneront des chances passage, c'est en realite ouvrir de suco^s, et, par consequent, le territoire neutre a des hosti- nuiront dans la mSme proper- lites ou favoriser une partie tion a I'autre. Presquetoujours centre 1' autre." la situation du territoire neutre See also Woolsey, p. 269, se prete plus facilement aux sect. 160. operations de guerre de I'une * See svjird, cliap.viii. p. 147. que de I'autre partie. Leur or INTERNATIONAL LAW. 591 individual members, and whatever is forbidden to the entire body by that law is equally forbidden to its component parts. In this sense, and in this sense How an offence only, can it be said that International Law — in other ^tionai Law words, the common law of nations — forms part of the offeMe ako common law of England ; for the greater part of the mi'^cipaUaw rules of International Law, by which nations now con- der^st^!'" sent to be bound, are posterior in date by many centu- ries to the formation of the common law of England. Nevertheless, as Great Britain forms part of the great fraternity of nations, the English common law adopts the fundamental principles of International Law, and the obligations and duties they impose ; so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them, by reason of which any act done in contravention of such obligations becomes an offence against the law of his own country. "But the subject who infringes the law of his own Extent of this . 1-111 liability indi- country by violating the neutrality which the law viduaiiy. enjoins him to maintain, is amenable for his offence to the law of his own country alone, except when actually taking part in the war as a combatant, when of course he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International Law knows of no relations between a State and the subjects of another State, but only of those which exist between State and State- But this being so, the belligerent against whom a breach of neutrality has been committed by the subject of a neutral State, as distinguished from the State 592 FIEST PLATFOEM itself, may have a right to hold the State responsible, and to look to it for redress. For the State (that is, the Community as a whole) is bound to restrain its individual members from violating obligations which. Extent of a,s a whole, it is bound to fulfil. Not, however, that state 3 Ke- ' ' ' sponsibiiity. ^jjg responsibility of the State for the acts of its subjects is absolute and unlimited. Reason has set bounds to a responsibility which would otherwise" be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bound to accept pecuniary amends as an alternative. Now reason points out that the Government of a country can only be held responsible for breaches of neutrality committed by its subjects when it can reasonably be expected to prevent them. There are things which a Government can prevent, and others which it cannot. It can prevent things that are done openly, and in defiance of the law. The open levying of men, and expeditions departing from its territory by land or water, are things which a Government would properly be expected to prevent, and for which, if not prevented, it would be answerable. But a Government could not be so held in respect of things it cannot prevent, such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent* j * Some observations will be one belligerent in large num- found a little further on as to bers, and especially if the bel- the liability of a Nentral State ligerent is thus supplied with if its subjects take service with officers and generals. OP INTEENATIONAL LAW. 593 or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from from being broken. But then the exercise of such diligence is part of the duty of a Government, and the condition of its immunity; If this diligence has been wanting, a belligerent has just cause to hold the neutral State responsible for wrongful acts done by its subjects in violation of neutrality, and from which it, the belligerent, has suffered." 554. In complaints by Belligerents against neutral Prior question States for the acts of individual neutral subjects, there whether the is frequently a grave matter for consideration, which jl^iJt has done must be dealt with prior to the investigation of the ^MueM° point whether the neutral State has or has not used '^^^ due diligence as to preventing breaches of- Interna- tional Law by its subjects. We have seen that Neutrals claim (and as a general principle justly claim) for their subjects liberty to pursue their usual callings, professions, and trades, as producers, as manufacturers, as buyers and sellers, without being molested or hin- dered in them because two foreign States have thought fit to go to war with each other. Many trades and occupations are concerned with the production and fitting up of things serviceable in warfare ; such, for example, are the trades of the gunmakers of Bir- mingham and Liege, of the sword-cutlers of Sheffield, and of the shipwTights of Greenock and Amsterdam. If a dealer of this kind receives an order for a supply of goods, such as he is in the habit of supplying to any customer who asks for them, he considers it a 2q 594 FIEST PLATFOEM grievance, if he is debarred from executing the order by the circumstance that the intending purchaser may and probably will use the articles in warfare. Soundness of 555. The principle of "The Liberty of Commerce general prin- . ,, cipioofLi- withm the territory of Neutral Powers may be bertyofCom- i»-i/-ii-i merce within regarded as a true and sound one* ; but it unhappily countries. comes sometimcs into collision, real or apparent, with cialhTs^witr another equally sound and certain principle, namely Neutrafsnot '"'^^^^ *^^ ^"^^ °^ Ncutrals to abstain from helping to help Belli- either of the parties to the war. gerents, ■■■ The animus 556. The test which reason points out for the is to hTre- ^^ solutiou of sucli difficulties is the distinctive test indi- i^animus ^^ cated in part of Sir A. Cockburn's judgment, when, ITZl"' after discussing cases in which Neutrals have clearly adjuvandz ? ^^^^^ acting with the design of helping one party in the war ^nimo adjuvandi for the direct purpose of enabling him to overcome or resist his opponent, he proceeds to observe that "very different considera- tions present themselves when we have to deal with assistance furnished to a belligerent, not animo adju- vandi, with the object of enabling him to overcome his enemy, but aniiho commerciandi — in the way of trade and commerce." Suchques- 657. The qucstion of the applicability and of the Irisewhen'the cffcct of this tcst Can very rarely arise when it is the deals mI*^*^ Neutral State itself, acting as a State, which gives the assistance. A State (as Sir Alexander Cockburn re- * See the authorities on this Judgment, Blue Book, pp. 11- suhject brought together and 26. See also Sir Travers Twiss, their effect considered in Sir p. 432 et seq. Alexander Cockburn's Geneva State. OF INTEENATIONAL LAW. 595 marks) " cannot, consistently with neutrality, under any circumstances, supply to one of two belligerents articles which may be of use to him in carrying on war. For, as Governments do not engage in trade, save in exceptional cases of very rare occurrence — as, for instance, when a Government disposes of ships for which it has no use — nothing supplied by a Government to a belligerent can be supplied otherwise than animo adjuvandi — that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing "*. 558. If the transaction in qiiestion is bond fide car- The test is ried on by the neutral subject animo commerciandi, with regard the preponderance of authorities and the preponde- cies of supply. ranee of utilitarian arguments decide (as we have seen) that the transaction is internationally lawful. In many kinds of such transactions the circumstances of the case, and the nature of the article supplied will give the means of ascertaining with reasonable certainty the animus which was the motive of the neutral maker, seller, or contractor. It is for the party who imputes illegality to prove it. Where the matter is left doubtful the general maxim should apply, and the henignior interpretatio should be followedf . 559. There is, however, a special kind of articles of Difficulty in applying the * Blue Book, North. America, interpretationem sequi non mi- gardTo sh""^ 110.2 (1873), p. 11. nus jnstius est quam tutius" suitable for t " In re dubia benigniorem (50 Dig. xvii. 192). ^^^- 2q2 596 PIEST PLATFOEM To send out a ■war-ship equipped for action is to send out} an expedition. Belligerent character of such an act not to be STaded by artifice. great demand botli in time of peace and in time of war, but particularly so during war-time, which are of such a nature and of such applicabilities as almost always to create suspicion that they are supplied animo adjuvandi, though an animus commerciandi may exist concurrently. The articles of which I speak are ships so constructed, so fitted up, and so furnished as to be promptly available for hostile operations. It is said on behalf of the neutral ship-builder that it is his regular business to supply all customers with ships of various kinds, according to each customer's require- ments. It is said on the other side, that the sending out a war-ship equipped for action is in itself the sending out a war-expedition ; and it is added (as appears to me with truth and reason) that the war- like character of such an act cannot be avoided or got rid of by . any scheme or artifice as to sending the ship out of the neutral waters without her guns, or stores of ammunition, or without her fighting crew, but in pursuance of an arrangement by which her guns and ammunition and fighting crew are to be got ready for her, and placed on board of her when she has passed out of the neutral State's territorial jurisdiction. If there does exist an International Law forbidding Neutrals to aid a Belligerent by fitting out and sending forth a war-ship to fight, to blockade, and to plunder for him, the general principle of jurisprudence must apply, the principle that what a Law forbids to be done directly it also forbids to be done indirectly. 560. War-ships, which are thus obtained by one of two Belligerents from a Neutral, are almost always OF INTEENATIONAL LAW, 597 chiefly employed in the capture and destruction of the Bitter ani- other BelHgerent's merchant-vessels ; and their opera- ^ffenng Bei- tions invariably create in the party v^hich suffers from ajdnsuhe them a vehement feeling of indignation against the country country whence such depredating cruisers are supplied. ^^^gdUiona'^ In order probably to check the grov\rth of such ani- '^™®' mosity and the probable outbreak of fresh wars, as ■well as on principles of general expediency and justice, many civilized nations have now introduced into their systems of municipal law enactments specifically forbid- Municipal ding certain acts on the part of builders and armers ventsuch of vessels and others, and conferring certain powers on the local executive authorities, so as to prevent more surely their subjects from taking part in pro- ceedings which it is natural to regard as hostile expe- ditions. I do not feel that it is my duty to discuss the provisions of any of these enactments ; I would merely remark that the last statute passed in this country on the subject (33 & 34 Vict. c. 90) is so com- prehensive and clear, and places such ample means of prevention as well as of punishment in the hands of the Government, that it can hardly be possible for difficulties and differences again to arise, like those which created the notorious Alabama claims. But our busi- ness is with general International Law ; and, inde- pendently of all municipal legislation, we may with confidence aver that International Law is broken when a member of a neutral political community supplies, or cooperates in supplying, a Belligerent with a hostile, force, either military or naval, animo adjuvandi. The animus must generally be proved by the circumstances ; 598 FIEST PLATFOEM and every person (whether a State or an individual) may properly be taken to intend the natural consequences of his own conduct. The topic of to whom a State is responsible, as a State for such misdeeds of its sub- jects will be further discussed presently. As to advances 561. There is another mode in which help is of Eaoney by gift or by Sometimes received by one of the Belligerents from a neutral country ; I mean in the form of supplies of money. This may be done by voluntary donation or by loan. If a neutral State were by a State-act to supply one of the parties to a war with " the sinews of war," either by way of gift or of loan, such con- duct would so clearly be stamped with the animus adjuvandi as to entitle the other Belligerent to treat it as an unlawful interference in the war. But such conduct on the part of States rarely, if ever, occurs in This generally modcm practice. We hear of loans raised in foreign individual couutries by warring States ; but they are obtained sympatliizers n •i.-T-ji • ii or speculators, irom private mdividuals or companies ; and when the advance of money is an open gift, such liberality is exercised by sympathizing individuals, who take deep interest in the success of one party to the hostile struggle, and who, besides holding meetings and making speeches, offer and organize subscriptions of money in aid of the side which they wish to prevail over its adversaries. It is during wars of insurrection that active sympathy is usually thus rendered by foreigners. Difference of 562. With icspect to the legality of individuals in legality of a ucutral country supplying money by way of loan to vateVrsons. a belUgereut State, there is a difference of opinion OP INTEENATIONAL LAW. 599 among modern Jurists. Some hold that such assist- ance is in all cases and under all circumstances in- ternationally unlawful ; others consider it permissible, if the persons who advance the money are doing so in the course of commercial practice, and the trans- action is a mere Stock-Exchange speculation as to profit or loss by dealing in money*. This last ap- pears to be the most sensible opinion. 563. It is a widely different matter if the money lUegaiityof is supplied either openly or really, though under pre- ^°amo^^ ^ text or loan, tor the purpose oi lomentmg or encou- raging civil war in a friendly State, or of helping one of two Belligerents against its adversary. The animus adjuvandi here makes the proceeding a breach of International Law ; and such conduct ought also to be regarded as an offence against the neutral State within whose municipal jurisdiction it is perpe- trated! . * See 3 Phillimore, p. 221 ; the last series of the Welling- Woolsey, p. 270 ; Halleok, p. ton Despatches, p. 100, will be 526 ; Hall, p. 49 ; BluntschU, found copies of opinions given p. 427. Such judgments of Law by the Law Officers of the Courts as that (often referred Crown in 1823, as to whether to) of the English Court of subscriptions or loans for the Common Pleas in De "Wutz v. use of one of two belligerent Hendricks, ix. Moore, p. 536, States by individuals, subjects do not apply to this point. Lord of a nation professing to main- Wynford, C. J., in that case, tain a strict neutrality, are con- pronounced that it was illegal trary to the law of nations, to lend money for the express constituting such an offence as purpose of enabling subjects of the other Belligerent would have a foreign friendly Government a right to consider as an act to carry on war against it. The of hostility on the part of distinction is obvious. the neutral Government. The f In the second volume of Crown-advisers were also con- 600 FIEST PLATFORM 564. Another mode in which individual subjects As to indivi- seiriee to"^ of a neutral State frequently take part in a war with- fleets^or" ° out the Order or sanction of their own Government, is armies. ^-j^^ most direct of all modes, the taking service in one suited as to whether persons or corporations engaged in such subscriptions could be prose- cuted by the municipal law of England. The answers of the Law Officers are not in all respects clear ; but some valuable light may begainedfromthem. They hold that such subscriptions are inconsistent with the neu- trahty professed by the Govem- - ment of which the subscribers are subjects ; but they " con- ceive that the other Belligerent would not have a right to con- sider such subscriptions as con- stituting an act of hostility on the part of the Government, although they might afford just grounds of complaint if carried to any considerable ex- tent." I venture to think that, if the aggrieved Belligerent had " just grounds for complaint " for such acts against the neutral State, it would also have the right to seek redress by force from the neutral State if those complaints were disregarded. With respect to the legality of loans, if entered into merely with commercial views, the Law officers of 1823 advised as fol- lows: — "We think that, ac- cording to the opinion of wri- ters on the law of nations, and the practice which has prevailed, they would not be an infringe- ment of neutrality ; but if under colour of a loan gratuitous con- tribution was afforded without interest, or with mere nominal interest, we think such a trans- action would fall within the opinion given in answer to the first question " [as to subscrip- tions]. With respect to pro- secuting subscribers, they ad- vise thus : — " Reasoning upon general principles, we should be inclined to say that such sub- scriptions in favour of one of the belligerent States being in- consistent with the neutrality declared by the Government of the country, and with the law of nations, would be illegal, and would subject the parties concerned in them to prosecu- tion for a misdemeanour on ac- count of their obvious tendency to interrupt the friendship sub- sisting between this country and the other Belligerent, and to involve the State in dispute, and possibly in the calamities of war." They add some prac- tical remarks on the improba- bility of such a prosecution being successful. OP INTEENATIONAL LAW. 601 of the belligerent armies, or on board of one of the The practice belligerent war-vessels. The international illegality 4aiu^ri'nter- of such conduct is, as a matter of principle, unques- Spi™" ^"" tionable ; but the practice is ancient, almost univer- sal, and is by many regarded as inveterate. Yet it Effect of such is manifest that assistance may in this manner be given to one of the warring parties to such an extent as materially to influence the event of the contest. lict us suppose the case of a belligerent country, or of a belligerent party in a country where civil war rages, with a numerous, a brave, and a zealous population, but with few regular troops, and with very few of its members who have had any experi- ence of warfare. If some hundreds of professional military men from a foreign country, who are well trained themselves, and who are capable of training and of leading others, join the armies of such a country or party as we have supposed, they will do very much to ensure its success in the war. Nay, the accession of two or three individuals, or even of a single individual, may be, and is likely to be, of incal- culable importance, if generalship of a high order is thereby obtained. The neutral State, whence such officers and generals were supplied, must be regarded as the source of the favoured Belligerent's chief mili- tary efficiency. The adversary, whose prospects of success are proportionately diminished, naturally and reasonably regards the so-called Neutral as a prime cause of his difficulties and disasters. If the neutral State, after complaint and remonstrance, does not exert itself to the best of its ability to check such practices on the 602 PIEST PLATFOEM part of its subjects, the aggrieved adversary appears, on every principle of natural justice, and according to every rule and analogy supplied by International Law, to have -ample grounds for treating such a M^rongdoer as an enemy, and for seeking redress by arms. state's liability 5g5. As wc have had occasion more than once to ob- for its subjects' acts. serve, the general principle is certain, that it is a State's duty to prevent its subjects from injuring other States, or to make reparation for such injuries if they have been committed; but it is equally certain that this duty is not absolute or unlimited. The obligation attaches only when the wrongful acts committed by individual subjects might have been prevented by their Government, if the State had provided itself with reasonably sufficient laws and legal process, and if it had enforced those laws and employed that legal pro- cess with honest earnestness and reasonable vigi- lance*. In the chapter on the collision of rights of States I have dealt at great length with the question of what amount of dolus or culpa on the part of a State must be proved in order to fix it with responsibility for the internationally wrongful acts of its individual members. I refer the reader to that part of this treatise, as to the standard by which the conduct of States in such matters must be judged, and as to the practical appli- cation of that standard. I have in that chapter labo- riously, if not successfully, analyzed the " due dili- gence " which a State is bound to observe — that is to say, its duty not to neglect to provide itself with laws, * See stiprA, pp. 157-163 ; and p. 314. OF INTEENATIONAL LAW. 603 and a system of process, by which it may control those within its jurisdiction from injuring other States, and, secondly, its duty to enforce those laws and process with honesty, vigilance, and vigour*. 566. In mentioning the general nature of the claims Restraints on p.ut forward on behalf of Neutrals, it was said that Hberty of com- these claims extended to the right of the members of TOnT™yanc6° on a neutral State to pursue their customary occupations ® ^ °^^' of commercial conveyancers and carriers, unmolested by Belligerents, who thought fit to quarrel among themselves. But in this department of neutral rights it is universally admitted that " the rights of a nation, as regards trade with another nation, do undergo very considerable modifications when such second nation engages in war with a third ; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the Neutral and the Belli- gerent, this language must be taken with considerable allowance ; for it is certain that, as regards trade and commerce, the rights of the peaceful Neutral undergo very serious diminution. By the admitted rules of International Law, a Belligerent may seize articles contraband of war in transit by sea from the Neutral to his enemy. By blockading his enemy's port he may shut out [from that port] the commerce of the Neutral, even in articles not capable of being applied to warlike use "t- 567. We will therefore now proceed to consider the HabiUties of neutral traders and carriers to have * See supra, pp. 315-345. Judgment in Geneva Arbitra- t Sir Alexander Cockburn, tion. Blue Book, p. 12. 604 PIE8T PLATFOEM their goods and vessels seized on the high seas by a BelHgerent under either of the two states of circum- stances indicated in the passage which has been just quoted from Lord Chief Justice Cockburn's Geneva judgment. Laws of Con- To usc the short famiUar terms on this subject, w.e Blockade. wiU examine the International Laws of Contraband Belligerent's and Blockade. We must also devote some attention claim to seize • i / i i • i -n ■ • \ enemy's goods to the rights (whether antiquated or still existing) neutral ship, of a Belligerent to take but of a neutral ship and to appropriate the goods of the Belligerent's enemy, Also claim to which that ship is conveying; and we must not leave seize neutral -ini- ••11 -i goods if on uuiioticed the doctrine maintained and practised until board enemy's , , , . , , ... . . , i , , i ship. lately by some important maritime nations, that the goods of a neutral, if placed by the neutral in the ship of one of the Belligerents, become liable to seizure by Visitation and the cruiscrs of that Belligerent's enemy. The law as search. to Visitation and Search is necessarily connected with the law as to any right of a Belligerent at sea over either the goods or the vessels of Neutrals. 568. We will begin with the law of Contraband. Generainature The general effect of it may be thus stated : — A Belli- traband. gcrcut has by International Law a right to seize at sea, and to appropriate or destroy articles, to whomso- ever they may belong, which are calculated to aid the Belligerent's enemy in the war, and which are being conveyed by sea to that enemy's territory. other contra- 569. There may be contraband persons as well as band articles . , . 1 • i • 1 besides goods, contraband goods. ihis may be explained in the words of Field :■ — " Persons are contraband of war when impressed with the miUtary character of the OP INTEENATIONAL LAW. 605 hostile nation, or when on their way for a mihtary purpose in aid of such nation, but not otherwise"*. In another paragraph the same Jurist defines " per- Contraband 1 ■ 1 -T 1 >3 • persons. sons impressed with mihtary character as meaning " those who constitute a part of the armed forces by land or by sea of a nation, and those who are connected with the operations thereof by the express authority of the nation "f. 570. Some further observations as to contraband persons will be made presently, and also as to con- traband documents and contraband ships ; but by far the greater part of the cases, in which the law of con- traband comes under discussioUj have relation to contraband goods. 571. There are many things which a Belligerent Beiugerent's ., . -C1-1/.1- rights on the has a right to seize at sea, it destined tor his enemy, high sea more though he would have no ground for complaint in the neutral respect of their sale or preparation by a subject of the '^' Neutral in neutral territory, or of any thing being done with them, by the neutral manufacturer, trader, or inland carrier, within that territory, though done with the ultimate purpose of the other Belligerent being supplied with them. Sir Travers Twiss, in his chaper on the Rights and Distinction drawn by Sir * " Contraband is a teim. oi fully phrased as "Contraband Trayers Twiss. Positive LaTv, and in its pri- of War." It has certainly for mary sense denotes something some centuries had " a recog- prohibited by ban or edict." nized acceptation amongst na- See Sir Travers Twiss, p. 233 : tions in reference to a branch he gives instances of the of maritime trade, ■nhich was earliest known uses of the prohibited to merchants in time Latiu, Italian, Spanish, and of war " (ib. p. 234). French equivalents of onr Eng- t Dudley Field, Draft Inter- Ush word. It is sometimes more national Code, pp. 545, 707. 606 PIEST PLATFOEM and Duties of Neutral Powers, points out the distinc- tion whicli exists between trade which is carried on within the territory of a neutral Power, and trade which is carried on upon the high seas. " By the Law of Nations the sovereignty of an Independent State over its own territory is absolute ; and its laws are binding upon all persons who come within its territory But if the merchant ventures beyond the confines of neutral territory the case is different." The high seas are nullius territorium. If a Bellige- rent finds that articles calculated to aid his enemies in making war against him are being conveyed on the high seas to his enemies, he may exert his natural right of self-defence by seizing them, although they are the property of a Neutral, and although they are being carried in a neutral vessel. Seizure of con- 572. In SO Seizing such goods the Belhgerent is not not hMtiUfcy^'* considered to commit an act of hostility towards the tfaf stte!"' neutral State to which the owner of the goods be- longs. And, conversely, the neutral State is not considered to have failed in its duties of Neutrality, because it does not restrain or punish its subjects who seek to carry sach goods across the seas to a Neutral State Belligerent. The neutral State is not bound to apply not bound to . ■ ■ i ^ L^ i • e • l enforce Law of its muuicipai law, or ttic macmnery oi its executive, to the prevention of contraband traffic, or to the pre- vention of breaches of blockade. These closely con- nected matters* make an exception to the general * " In principle there is no contraband or breach, of block- essential difference whether the ade " {per Dr. Lushington, question of breach of municipal ' The Helen,' Law Bep. 1. A. & law is raised with regard to E. 5). OP INTEENATTONAL LAW. 607 principle of Jurisprudence, according to whicli, as we have seen, every civilized nation is bound to treat the rules of International Law as incorporated with its own national judicial system. But as to shipping articles of contraband for a Belligerent, or as to shipping goods of any kind for a blockaded port, Interna- tional Law enforces its own decrees, and Municipal Law takes no action. In the very important case of ' The Helen,' decided about twelve years ago in the Dr. Lushing- -ri r-Ai-ii 1 IT ton's judgment British High Court of Admiralty, the very learned and in 'The able judge who then presided there, the late Dr. Lush- ington, cited and adopted the jural doctrine on this subject, which had been declared by the American Chief Justice Parsons, in a case before the Supreme Court of Massachusetts* : — " It is agreed by every civilized state, that if the subject of a neutral power shall attempt to furnish either of the belligerent sove- reigns with goods contraband of war, the other may rightfully seize and condemn them as prize. But we do not know of any rule established by the Law of Nations, that the neutral shipper of goods contraband of war is an offender against his own sovereign, and liable to be punished by the municipal laws of his own country. When a neutral sovereign is notified of a declaration of war, he may, and usually does, notify his subjects of it, with orders to decline all con- traband trade with the nations at war, declaring that, if they are taken in it, he cannot protect them, but not announcing the trade as a violation of his own * Eicliardson v. The Marine of ' The Ellen ' is reported in Insurance Company, 6 Massa- Law Eeports, A. ifc E. vol. i. chusetts Eep. 112. The case p. 1. 608 PIEST PLATPOEM laws. Should their sovereign offer to protect them, his conduct would be incompatible with his neutrality. And as, on the one hand, he cannot complain of the confiscation of his subjects' goods, so, on the other hand, the power at war does not impute to him these practices of his subjects. A neutral merchant is not obHged to regard the state of war between other nations ; but if he ships goods prohibited jure belli, they may be rightfully seized and condemned. It is one of the cases where two conflicting rights exist, which either party may exercise without charging the other with doing wrong. As the transportation is not prohibited by the laws of the neutral sovereign, his subjects may lawfully be concerned in it ; and as the right of war lawfully authorizes a belligerent power to seize and condemn the goods, he may lawfully do it "*. * Mr. Hall, in his treatise the party injured by siicli ag- on the Rights and Duties of gressions with the power of I^eutrals, cites the following checking them. This arrange- arguments of Lord Brougham, ment seems beneficial to aU which serve to show that the parties ; for it answers the chief prevailing practice is the best endof the law of nations, check- for the general good: — "No ing injustice without the neces- Power can exercise such a,n sity of war. Endless hostUi- effective control over the ac- tieswouldresult from any other tions of each of its subjects as arrangement. If a Govern- to prevent them from yielding ment were to be made respon- to the temptations of gain at a sible for each act of its sub- distance from its territory. No jects, and a negotiation were Power can therefore be eifec- to ensue every time that a sus- tually responsible for the con- peoted neutral merchantman duct of all its subjects on the entered the enemy's port, either high seas ; and it is found that there must be a speedy end put it is more convenient to intrust to Neutrality, or the affairs of OF INTEENATIONAL LAW. 609 573. We next have to consider what goods are Contraband. Many questions have arisen on this subject ; and opinions as to the character of several articles have varied under changes of time and circum- stance. 574. It is usual to make a classification of, 1st, goods that are absolutely contraband, and, 2ndly, goods that are conditionally contraband. Some jurists deny altogether the doctrine of conditional contraband; others seek to limit its operation very narrowly*. But it has been fully recognized by the Courts of England What goods are Contra- band? Classification into Absolute Contraband and Condi- tional Con- traband. the belligerent and neutral both stand still." Some jurists desire stringent municipal laws against dealing in contraband and in blockade- running (see Phillimore, iii. 230 ; and Woolsey, p. 298, n.). But the rules of International Law on the subject are as stated in the text ; and I believe that more harm than good would be introduced by the proposed change. See the passage from Lord Brougham cited supra, p. 608, n. Sir Travers Twiss (p. 296 et seq.) cites several strong authorities as to the existing law on the subject. One of the clearest is the following passage from an official opinion of the Attorney-General of the United States, given on the 20th January, 1796 :— " If the individual citizens of the United States carry oa a contraband commerce with either of the Belligerent Powers, neither can charge it upon the Government of the neutral nation as a de- parture from neutrality; smd it is not considered as a duty imposed upon a nation by a state of neutrality to prevent its seamen from emplopng themselves in contraband trade ; nor are there to be shown any instances where a neutral na- tion has exercised, or attempted to exercise, its authority in re- straining practices or employ- ments of this kind." * See the opinions of Byn- kershoek,Vattel, Lampredi,Va- lin, de Hautefeuille, Ortolan, and others, cited and com- mentedonin Sir Travers Twiss's work, p. 268 et seq. See also 3 PhiUimore, p. 325; Abdy's Eent, p. 356 ; Halleck, p. 584 ; Woolsey, p. 302 ; Sheldon Amos'sManning,p.532; Whea- 2 R 610 FIEST PLATFOEM and the United States*, which may be safely regarded as the highest authorities on the subject. In the description which I am about to give of Contraband, both absolute and conditional, I shall chiefly follow the Manual of Naval-Prize Law, by Mr. Godfrey Lushington, which was issued by the British Admiralty in 1866, for the use of officers of Her Majesty's Navy in time of war. Goods Abso- 575. We will take first the class of goods which are trabard.°'^ Absolutely Contraband. All goods fit for purposes of war only, and certain other goods which, though fit for purposes of peace, are in their nature peculiarly serviceable to a Bellige- rent in actual warfare, are, if found on board a vessel that has a hostile destination (a phrase to be explained ton, part iv. ch. iii. ; Hall, stances ; and the third, of arti- p. 98; 2 Calvo, pp. 85,266; cles exclusively used for peace- Dudley Field, Draft Outline of ful purposes. International Code, p. 548. " Merchandise of the first * "The classification of goods class, destined to a belligerent as contraband and not contra- country or places occupied by band, which is best supported the army or navy of a beUi- by American and English deci- gerent, is always contraband ; sions," says Chief Justice Chase merchandise of the second class in the case of the ' Peterhoff,' is contraband only when actu- 5 Wallace's U.S. S.C. Pep. 58, ally destined to the military " may be said to divide all mer- or naval use of a belligerent; chandise into three classes. while merchandise of the third Of these, the first consists of class is not contraband at all, articles primarily and ordina- though liable to seizure and rily used for military purposes condemnation for violation of in time of war ; the second, blockade or siege " (cited by of articles which may be and Mr. Dudley Field, Draft Out- are used for purposes of war or lines of International Code, peace, according to circum- p. 548). OF INTERNATIONAL LAW. 611 presently), to be considered as Absolutely Contra- band. 576. Next, as to goods Conditionally Contraband. Goods Condi- " All goods, fit for war and peace alike, on board a tiaband. vessel which has a hostile destination, are Condition- ally Contraband ; that is, they are contraband only in case it may be presumed from circumstances* that they are intended for purposes of war. This presump- tion generally arises when such hostile destination of the vessel is either the enemy's fleet at sea or a hostile port used exclusively or mainly for naval or military equipment." The importance of ascertaining that goods, the importance of character of which is per se doubtful, goods which are tinatfon.^^ often called by jurists " Bes ancipitis usus," are des- tined not only for the territory of a Belligerent, but also for some particular locality in which arma- ments and expeditions are collected and prepared, will be made clear by reference to part of Lord Stowell's * A good illustration of how Gibraltar were fitting at Alge- the special circumstances of the siras, and it was known that case may make goods contra- hides were to be the chief arti- band which would not gene- cle of defence [of the floating rally be so, is given in Ward's batteries] to be used in that Essay on Contraband. He famous attack, I have no doubt refers to buUs' hides as being that a ship loaded with hides, goods " which are in them- and destined for that part of selves seemingly a very inno- equipment, with a knowledge cent article of traific ; and in that they were then wanted, the American war neutrals might very justly have been might for a long time have stopped, and even confiscated." safely supplied them to Spain. See Sir Travers Twiss, p. 276 ; But when the floating batteries Sheldon Amos's Manning, p. destined for the destruction of 353. 2 r2 613 PIEST PLATFOEM judgment in tlie case of the Jonge Margarethe*. Judgment of " The most important distinction is, whether the arti- Lord Stowell. i ■ n i t s^•s; cles were intended for the ordinary use ot hte, or even for mercantile ships' use, or whether they were going with a highly probable destination to military use. Of the matter of fact on which the distinction is to be applied, the nature and quality of the port to which the articles were going is not an irrational test : if the port is a general commercial port, it shall be under- stood that the articles were going for civil use, although occasionally a frigate, or other ships of war, may be constructed in that port. Contra, if the greatly pre- dominant character of a port be that of a port of naval or military equipment, it shall be intended that the articles were going for military use, although mer- chant ships resort to the same place, and although it is not impossible that the articles might have been applied to civil consumption ; for, it being impossible to ascertain the final use of an article ancijjitis usus, it is not an injurious rule which deduces both ways the final use from the immediate destination ; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be euiinently useful." This law ap- 577. This law has been fully adopted by the Ame- trlband"™' ricau Courts, which have also expressly established the fleet'ora™y° poiut, that whcre a supply of contraband articles is ouroftts°owii destined for a belligerent's fleet or army which is '^^'•"'"'■y- « Eeported in 1 Eobinson, 194. OF INTEENATIONAL LAW. 613 located beyond its own territory, such contraband articles are liable to seizure by the other Belligerent. 578. A long list of articles Conditionally Contraband Articles Con- is given in the British Admiralty Manual; and other Conti-aband. lists, not identical, but not varying- much from the British, may be found in Abdy's edition of Kent's Commentaries, and in Dana's Wheaton. The articles that require special mention are coal and provisions. Coai. Prom the rapidly increasing use of armed steamers in naval warfare it is probable that coal will be regarded as contraband, if destined for any harbour or any port whatever of the coast of a belligerent where war- steamers can in ordinary weather lie-to, so as to take in supplies of coal for the continuance or renewal of their cruising against their enemy*. 579. There have been very many disputes (and Provisions. some of ancient date) as to whether provisions are ever to be regarded as contraband of war. The rule which has now for nearly a century been adopted by the British Courts of Admiralty, may be thus stated in * Dr. Abdy, in Ms edition appears, however, to Her Ma- of Kent, p. 360 n., cites an offi- jesty's Government that, having cial communication of the regard to the present state of British Government in 1859, naval armaments, coal may in in ansvrer to vrhether coal was many cases he rightly held to to he regarded as contraband, be contraband of war — there- " The Prize Court of the captor fore that all who engage in is the competent tribunal to the traffic must do so at a risk, decide whether coal is or is not from which Her Majesty's Go- contraband of war; and it is vernment cannot relieve them." obviously impossible for Her See also page 585, supra, as Majesty's Government, as a to the character of supplies of neutral sovereign, to anticipate coal to a belligerent, the result of such decision. It 614 PIEST PLATPOEM Lord stoweii's the words of Lord Stowell : — " Generally they [provi- rule. , sions] are not contraband, but may become so under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it." This rule has been fully adopted by the Supreme Court of the United States*. EightofPre- 580. The application of the doctrine of Occasional emption. _ _ , . Contraband is in some cases really hard, and is m more cases apparently harsh towards the neutral owners, especially where the articles objected to are articles which are the produce of the neutral country ; and in no class of cases does the harshness seem greater than when the supply consists of provisions. This circumstance probably induced the British Courts at the close of the last century and at the beginning of the present century to favour in such cases the adoption of the Law of Preemption, which Lord Stowell himself has called a kind of compromise be- tween the belligerent and the neutralf. Under the claimed right of Preemption the captor does not con- fiscate the goods to his own benefit without any com- pensation to the shippers ; but he takes possession of them as if sold to himself, the price being settled by himself; and the standard of valuation is not the same which might probably have been obtained in the enemy's ports, but the cost price in the producing country, with an addition of 10 per cent, as fair profit I . In the seventeenth century it was usual * Abdy'B Kent, p. 359. t "Woolsey, p. 307. t Robinson's Reports, vol. i. p. 241. OF INTEENATIONAL LAW. 615 for Belligerents, if powerful at sea, to assert and exer- cise a right of Preemption over a great variety of articles, if intercepted on the ocean. But the practice had become almost obsolete ; and the revival of it by England*, as applicable to provisions, has been strongly objected to by other nations. It is probable that it would not be enforced hereafter. No instruc- tions to exercise it are contained in the recent British Admiralty Manual, which has been already referred to in this chapter f. 581. The subject of the proof of the hostile desti- Contraband nation of contraband goods is one attended with con- siderable difficulty; and questions on it seem likely to multiply in future wars. The general rules on the subject are thus laid down in the British Admiralty Manual. A. " A vessel's destination should be considered General rules neutral, if both the port to which she is bound and British"prac- every intermediate port at which she is to call in the course of her voyage be neutral. B. " A vessel's destination should be considered hostile, if either the port to which she is bound, or any intermediate port at which she is to call in the course of her voyage, be hostile, or if in any part of her voyage she is to go to the enemy's fleet at sea. It * The French National Con- for at their value in the port vention had set the example of destination. See note in by a decree of May 9, 1793, Woolsey, p. 460, and 3 Phill. for the seizure of neutral p. 335. ships laden with provisions and t There is, however, a clause bound for an enemy's port. (38) respecting it in the Naval- The provisions were to be paid Prize Act, 1869. 616 FIEST PLATPOEM frequently happens that a vessel's destination is ex- pressed in her papers to be dependent upon contin- gencies. In such case the destination should be presumed hostile, if any one of the ports which under any of the contingencies she may be intended to touch at or go to be hostile ; but this presumption may be rebutted by clear proof that the master has defini- tively abandoned a hostile destination and is pursuing a neutral one. C. " The destination of the vessel is conclusive as to the destination of the goods on board, if, there- fore, the destination of the vessel be hostile, then the destination of the goods on board should be considered hostile also, notwithstanding it may appear from the papers or otherwise that the goods themselves are not intended for the hostile port, but are intended to be forwarded beyond it to an ulterior neutral port. On the other hand, if the destination of the vessel be neutral, then the destination of the goods on board should be considered to be neutral, notwith- standing it may appear from the papers or otherwise that the goods themselves have an ulterior hostile destination to be attained by transshipment, overland conveyance, or otherwise "*. Conflioting 582. So much of these rules as considers the desti- Amencan doc- trine as to nation of goods on board of a vessel to be conclusively proof of dosti- _ _ _ _ •' nation of determined by the destination of the vessel, is in cargo. accordance with the doctrine hitherto maintained by the British Courts ; and is, I believe, also in confor- mity with the general opinion formerly held by the * Manual of Naval Prize Law, p. 37. or INTEENATIONAL LAW. 617 great majority of jurists on the subject. But it is in conflict with a large number of recent American deci- sions, and it is nearly certain to be disputed by powerful naval belligerents in future wars. Accord- ing to the doctrine now maintained by several high authorities, and repeatedly enforced by the Courts of the United States, articles contraband of war, which Eeai ultimate 1111- ii-Tci- destination of the belligerent can prove to be destined tor his the goods enemy's use, are liable to seizure, though the ship in made the^test. which they are found is destined to take them only to some neutral port, whence they are to be forwarded by another conveyance to their hostile ultimate desti- nation. 583. The same question arises in the case of Same question ^ anses in law ot neutrals' goods not being contraband of war, but Blockade. intended to be eventually landed at a port under actual blockade, when such goods are captured in a ship which is to convey them for part of their journey. 584. The tests of liability to seizure are most tersely and clearly given in the case of the ' Stephen Hart.' The Supreme Court of the United States there laid down the following principles as the rules by which the Prize Courts of the United States would be guided : — First, with reference to the broad issue, whether the adventure of the 'Stephen Hart' was the honest voyage of a neutral vessel with neutral goods from one neutral port to another, or a simulated voyage with a contraband cargo for the enemy's use ; the court said, the commerce in such a case is in the destination and intended use of the property, not in 618 MEST PLATPOEM the incidental ancillary and temporary voyage ; and the question must turn, not on whether the vessel is documented for and sailing upon a voyage from one neutral port to another, nor whether the immediate destination of the goods is to a port of the eneniy, but the true test is this, " Are the contraband goods destined for sale or consumption in the neutral market, or is the direct and intended object of their transpor- tation to supply the enemy with them ? " * Case of the 585. In another American casc, that of the 'Peter- hoff,' a neutral vessel was condemned because {inter alia), " although ostensibly on a voyage between the neutral ports of London and Matamoras, she was laden with a cargo composed largely of contraband goods destined to be delivered either directly or indi- rectly by transshipment to the enemy's port and market, and for the enemy's use " f. 586. The case, on the subject, which has drawn most attention to it from Continental as well as from Case of 'The English and American writers, is that of the ' Spring- Springbook.' -,-,■, -ni-i i-t-ti bock, an Enghsh vessel captured m ±iebruary 1863, while on a voyage from London to Nassau, by a cruiser of the Northern States. Both ship and cargo were condemned by the American Prize Court in the first instance. On appeal, the Supreme Court of the United States reversed the decision so far as regarded the ship ; but confirmed it so far as regarded the cargo, for reasons set out in the judgment ; of which one main part was that the port of Nassau was * Abdy's Kent, p. 373. t See case cited ia Abdy's Kent, p. 371, n. OF INTEENATIONAL LAW. 619 not the real destination of the cargo. There were a Grounds of P . , T ^ p 1 condemnation lew articles contraband ot war among the goods con- of cargo by the demned ; and the judgment of the court below had Supreme been mainly based on the assumed contraband nature of the cargo. But these articles were trifling in amount and value ; and the Supreme Court dealt chiefly with the case on the ground of the assumed proof that the whole cargo was destined for a block- aded port. The British Government was applied to by the opinions of owners of the condemned cargo to demand from the against th"^'' American Government restitution of the seized goods tlTt cond™- or compensation for the seizure. No further judicial °'''^°"- proceedings could possibly be taken after the Su- preme Court of the nation of the captors had given judgment. " But," as Vattel observes, " the sentence of a Prize Court of the last resort, involving " une injustice palpable et evidente (a palpable and manifest miscarriage of justice), cannot be considered as flnal, internationally; and in such a case diplo- matic representations and, if necessary, political action and even reprisals and war on the part of the aggrieved Power, are reserved for the redress of the wrong sustained by its subjects " *. The opinion of the Law ofiicers of the British Crown was taken on the subject by the Government. * From Dr. Gessner's ' Ju- by a foreign prize court, but, ridical Review of the Case of if refused, it may resort to re- tbe Springbock,' p. 9. " Not prisals or even to war " (Hal- only may a State demand in- leek, p. 763. See too Abdy's demnity for the property of its Kent, p. 274, cited supra, p. citizens unlawfully condemned 560). 620 FIEST PLATi'OEM Those officers were the present Sir Robert Philhmore (Queen's Advocate), Sir W. Atherton (Attorney- General), and Sir Roundell Palmer (now Lord Sel- borne) (Solicitor- General). The owners of the cargo took also the opinions of Mr. Mellish, now Lord Justice Mellish, and of Mr, Harcourt, now Sir William Harcourt. Those opinions have been published ; they concur in agreeing with the Supreme Court of the United States, that " the real question on which the question must turn is the original destination of the cargo." If it were intended that the goods should be sold at the neutral port, Nassau, to which the ' Spring- bock ' was bound, the goods would not be hable to seizure, however probable it might be that the pur- chaser or purchasers of them at Nassau might try to carry on his purchase to a blockaded Confederate port. But if it was originally intended that the goods should go beyond Nassau, and their voyage in the ' Spring- bock ' was in part-fulfilment of that original design, then they were liable to capture. The English advocates carefully reviewed the reasons given by the condemn- ing court for holding this latter view ; and they demonstrated that those reasons were partly founded on mistake of fact, and partly consisted of erroneous deduction. They advised that the condemnation was therefore wrong and injurious according to Interna- ciaim for tioual Law. A claim for compensation was preferred JrZTed t" by the owners of the cargo before the Mixed Comrais- ComSn of sion, wliich was appointed by treaty to investigate Claims. ^jjjg ^^^ numerous other similar claims. The Com- ciaimre- missiou rejected the claim, but without giving any '''"' " ' reasons for their decision. OF INTEENATIONAL LAW. 621 587. This case gave rise to much comment among Celebrity of . . this case. Continental as well as among English and American jurists. The general opinion appears to be that the General opi- !•• fiTT-io Jr. r^ ^°^ adverse decision of the United States Supreme Court, cou- to Uie decision. deinnatoryof the ' Springbock's ' cargo, was wrongful, not because the destination of the ship ought to have been taken as conclusive proof of the destination of the cargo, but because the circumstances of the case by no means warranted the Prize Court in disregarding the presumption in favour of the neutral destination of the cargo, which the destination of the ship created. The case will be found discussed in Dr. Gessner's tract on the case, and in M. Calvo's second volume on International Law*. The subject is very fairly and temperately considered in the preface to Mr. Godfrey Lushington's Manual, issued by the British Admiralty for the guidance of its naval officers. As has been seen from the quotations which I have already given, Mr. Godfrey Lushington in the body of his work keeps to the old legal doctrines acted on by the British Courts dm-ing the great war of the end of the last and of the beginning of the present century. But in his preface he sets out the opposite opinions held by the American tribunals, and he balances the reasonings on either side. As he truly states, the introduction and rapid development of steam-naviga- tion has much to do with the establishment of the new doctrine. " Steam-navigation has much facilitated Arguments as the carrying of contraband. A more stringent scru- GodfreyLush- tiny, therefore, Avill be required in to the real destina- '°^ °°" * Page 471. 622 FIEST PLATPOEM tion of a suspected vessel. An adventurer carrying contraband in a swift steamer will not hesitate to adopt for a fictitious destination a port hundreds of miles apart from the port to which he is really bound. What is the intervening distance to him ? A delay perhaps of a day or two. Similar considera- tions weaken the presumption of a vessel's innocence. Lord Stowell restored a sailing vessel captured whilst ostensibly going to a place separated from a port of naval equipment only by a headland, and laden with a cargo of goods which, if she had been destined to that port, would unquestionably have been contraband. A steamer captured under like circumstances could nowadays hardly escape condemnation. " Connected Math the subject of contraband is the important question of the mode of ascertaining the destination of goods on board a vessel. In this volume it has been treated as conclusively determined by the destination of the vessel. This view is clearly to the interest of Neutrals. On the other hand, the interest of the Belligerent, when endeavouring to intercept contraband goods from going to his enemy, is to look beyond the destination of the vessel to the destination of the goods. " Practically either view leads to serious difficulties. If the BeUigerent is left to carry out his own view, there is no saying when and where a vessel may not become liable to detention for carrying contraband. For instance, in the late war between Spain and Chili, a British mail steamer plying regularly between South- hampton and Havre, and going no further, might, if OF INTEENATIOXAL LAW. 623 she carried munitions of war, which were intended to be transshipped at Havre to a vessel bound to a Chilian port, have been stopped in the British Chan- nel by a Spanish frigate, and carried off to a Spanish port. On the other hand, if the Neutral view be established, then, under certain circumstances, a Bel- ligerent might as well give up all attempt to stop contraband. Of this the late American war was an example. Matamoras, a neutral port, was quite close to the Southern coast blockaded by the Federal cruisers. Was it permissible for a British vessel to carry to Matamoras a cargo of munitions of war des- tined to be immedirately transported thence to a Southern port? The American Prize Courts pro- nounced that it was not permissible ; and the British Government did not remonstrate, no doubt becadse in the particular instance which occurred the vessels captured were practically transports in the service of the Confederates, if not actually destined themselves to run the blockade. Upon the whole it would seem probable that neither will a strong Belligerent submit to the Neutral view, nor a strong Neutral to that of the Belligerent. " Judging by principle, the view of the Belligerent seems correct. A neutral vessel which forwards muni- tions of war part of their way to their ultimate destina- tion to one of the Belligerents is really aiding and abetting in the war, and this on the high seas "*. 588. On the other side there is the high authority of Mr. Dudley the American jurist, Mr. Dudley Field, who, in his in &Tourof°° * British Admiralty Manual, p. xiv. Owner. 624 PIEST PLATEOEM Beasons for preferring the claim of the Belligerent in this instance. projected outline of a Code of International Law, directs that " The destination of the ship is conclusive as to the destination of the goods on board." He quotes the rule as set out by Mr. Godfrey Lushington in the text of the British Admiralty Manual, which has been already cited in this chapter ; and he states that this rule is preferred by him " as being in the interest of Neutrals." 589. This is a very important reason ; and I have in preceding paragraphs of this chapter asserted as general principles that the standpoint of the Neutral's interest is to be taken when we have to contemplate conflicting claims, and that a preferential regard for Neutral interest is in accordance with true utilita- rianism. But in the present case it certainly seems to me that, if International Law is to be considered as ever giving a Belligerent the right to seize neutral goods because they are contraband of war, or because they are destined for a blockaded port, the right so allowed cannot on any sound reasonings of juris- prudence be treated as liable to be nullified by the mere trick and colourable pretext of first placing the objectionable goods in a ship which is to stop at a neutral port, whence they can readily be passed on to the hostile territory, which is their true destination. In the administration of all Law, International as well as Municipal, realities and not shams are to be re- garded. The artifice which is in fraud of a law, is itself a breach of that law. Unquestionably there upholding the decision in the ouglit to be Very full and clear proof of such artifice case. being practise^ g.s well as planned. The burden of" But not for OF INTEENATIONAL LAW. 625 proof necessarily lies on the captors, who impute liability to seizure. Nay, more, the neutral destina- tion of the ship ought to be looked on as presumptive proof of the neutral destination of the cargo ; and the evidence on behalf of the captors to outweigh such presumption ought to be very different in quality and amount from what was held sufficient in the case of ' The Springbock.' But if full and clear evidence is adduced that the contraband goods are not destined for sale and consumption in the neutral market but that the direct and primary object of their shipment was to forward them to or towards the enemy, then the Belligerent, against whom they were destined to be used, has a right to protect himself by arresting and seizing the intended instruments of ill to him while they are on the seas, which are the highAvays of all nations but the territories of none. As for the ex- treme case suggested by Mr. Godfrey Lushington in the cited part of his preface, the imaginary case of the British steamer that plies between Southampton and Havre being stopped in the Channel by a Spanish cruiser because she had war munitions on board which she was to leave at Havre, and which were to be after- wards taken by some other conveyance to Chili, then at war with Spain, we may answer (if it be necessary to answer a difficulty supposed to emanate from a highly improbable occurrence*) that in this, as in all * " Ex his, quffi forte uno quae raro accidunt non. temere aliquo casu accidere possunt, in agendis ncgotiis eomputan- jura non constituuntur" (Cel- tur" (Ulpian in 50 Dig. xvii. BUS in 1 Dig. iii. 4). « Ea, 64). 2s 626 PIEST PLATFOEM other matters of international jurisprudence, the griev- ance proved must be real and substantial, and not of infinitesimally small operation. I do not think that the English steamer, under the suggested circumstances, would be held by any fair and sensible tribunal to have incurred the risks vrhich are indicated, especially if the amount of munitions was trifling, and if their con- veyance in no degree determined the steamer's voyage. At any rate, as Mr. Godfrey Lushington has ably demonstrated, there are much greater grievances to be apprehended on the other side ; and in a balance of evils we must avoid the heavier scale, especially when it is also the scale of injustice. Penalty for 590. Accordiug to modcm usage the penalty for contraband attempting to convey contraband goods by sea to the ^°° ^' territory of a Belhgerent is confiscation of the goods, if captured by the other Belligerent. The shipowner in such a case loses his claim to freight, and he is not entitled to any compensation for the detention of his vessel. The rules on this subject were formerly some- what varying ; but, generally speaking, the old usage was more severe than the modern on Neutrals ; and ■ the ship which carried contraband goods was fre- quently treated as itself Uable to confiscation. But by practice, which may be considered as having grown into law, the ship is now spared, unless she is the property of the owner of the contraband articles, or unless simulated papers have been employed in respect of her carriage of them. In both these cases the ship is confiscated. So also when the owner of the contra- band goods has other goods on board, the whole of OP INTEENATIONAL LAW. 627 them are forfeited — the principle followed being that explained by Lord Stowell, the principle that " where a man is concerned in an illegal transaction the whole of his property involved in that transaction is liable to confiscation "*. 591. A ship itself may be a contraband article, Conti-aban Neutral vessels are contraband, and are liable as such to be seized and confiscated, if they are destined to go to the enemy, and to be used by the enemy for the purposes of the vvarf. 692. A ship may become liable to be seized and Contraband confiscated for carrying contraband despatches. This part of the law of contraband is no older than the present century ; but it is fully established by authority as well as based on sound reasoning. President Woolseyl says of it, " Sir William Scott (Lord Sto- well) seems to have strucl? out this rule as a deduc- tion, and, we may say, as a fair deduction, from the general obligation of neutrality. The general doctrine of the English courts is this : — Despatches are official communications of official persons on the public affairs of Government. Letters of such persons concerning their own private affairs, and letters written by unoffi- cial persons are not despatches. Communications * British Admiralty Manual, not generally acknowledged." p. 39 ; Woolsey, p. 308; Hal- See Woolsey, p. 309. leek, p. 572. According to the f Admiralty Manual, p. 42 ; English authorities a ship is Halleck, p. 583. also liable to confiscation -vrhen J Page 311. See also Ahdy's carrying contraband goods con- Kent, p. 375; Admiralty Ma- trary to express stipulations of nual, p. 42 ; HaUeck, p. 642 a treaty. See Admiralty Calvo, vol. ii. p. 497. Manual, p. 39 ; but this " is 28 2 628 PIEST PLATFOEM from a hostile Government to one of its consuls in a neutral country, unless proved to be of a hostile nature, and despatches of an enemy's ambassador resident in a neutral country are excepted from the rule, on the ground that they relate to intercourse between the hostile State and a Neutral, which is law- ful, and which the other Belligerent may not obstruct. The comparative importance of the despatches, if within the rule, is immaterial. "In order to make the carrying of enemy's de- spatches an offence, the guilt of the master must be established. If the despatches are put on board by fraud against him, no penalty is incurred by the ship. If he sails from a hostile port, and especially if the letters are addressed to persons in a hostile country, stronger proof is needed that he is not privj' to a guilty transaction than if the voyage began in a neutral country and was to end at a neutral or open port. " If the shipmaster is found guilty of conveying hostile despatches, the ship is liable to condemnation, and the cargo is confiscable also, both oh continentiam delicti, and because the agent of the cargo is guilty. But if the master is not such an agent his guilt will not extend beyond the vessel. " This rule, in its general form, if not in its harsher features, may be said to have passed into the law of nations. Not only the declarations of England and France, made in the spring of 1854, but the contemporaneous ones of Sweden and of Prussia sanction it ; and the Government of the United States in one instance has accepted it as a part of the OF INTERNATIONAL LAW. 629 law of nations. It is received as such by text- writers of various nationalities, by Wildman and Philli- more, by Wheaton, by Heffter, Marquardsen, and other German writers, by Ortolan and Hautefeuille. The last-named pubHcist gives a modification of the rule, which, though of private authority, deserves serious attention. Despatches can be transported, says he, from one neutral port to another, from a Neutral to a Belligerent, or from a Belligerent to a Neutral, or finally from one Belligerent port to another. In the three first cases the conveyance is always innocent. In the last it is guilty only when the vessel is chartered for the purpose of carrying the despatches ; but when the master of a packet-boat or a chance vessel takes despatches together with other mail matter according to usage, he is doing what is quite innocent, and is not bound to ascertain the character of the letters which are put on board his vessel. Whatever may be thought of this, it may be seriously doubted whether a neutral ship conveying mails, according to usage or the law of its country, can be justly treated as guilty for so doing. The analogy from articles contraband of war here loses its force. When a war breaks out, a captain ought to know what articles he has on board ; but how can he know the contents of mailed letters ?" 593. An attempt was made during the late war Caseofihe between the Northern and Southern States of the "'^^ American Commonwealth to treat the conveyance of ambassadors as the conveyance of "embodied de- spatches." This was one of the numerous points 630 riEST PLATPOEM which arose out of the seizure of the ' Trent.' The ' Trent ' was a British vessel trading, in 1861, on its usual route as a packet-ship, and on a voyage from Havannah to England. Among the passengers on board were four members of the Confederate (the Southern) States, two of whom, Messrs. Mason and Slidell, were in the service of the Government of those States, and on their way to England in that service. The other two were their secretaries. They had been received on board the ' Trent ' as ordinary passengers at Havannah, where they had been residing for some weeks. The ' St. Jacinto,' a war-vessel of the Northern States, forcibly stopped the ' Trent,' and forcibly took from her the four persons in question against the remonstrance of the captain of the ' Trent,' who protested that these persons were und§r the protection of the British flag. The commander of the ' St. Jacinto ' caused the ' Trent ' to be searched for hostile despatches ; but no despatches were found. He released the ' Trent,' which con- tinued her voyage to England ; but he carried Messrs. Mason and Slidell and their secretaries to New York. The British Government protested energetically against these proceedings, and demanded the restoration to British protection of the persons who had been seized. Other neutral Powers also memorialized the American Government, pointing- out the international illegality of the seizure. Eventually the American Government gave up the prisoners to the British Legation. 594. The "Trent affair," as it is termed, has naturally been the subject of much commentary by OP INTERNATIONAL LAW. 631 jurists, especially by Dr. Abdy*, by Sir William Har- Commentaof , , ... 1 11 1 !• TT- • ))\ 1 Tarious jurists court (writing under the style ot " liistoricus ), by oa this case. President Woolseyf, and by M. CalvoJ. Perhaps most instruction is to be gained by studying ; — the memorial addressed by M. Thouvenel, the French minister, to the American Government ; the State- paper of Mr. Seward, the American Secretary for Foreign Affairs, published by him when he gave up the prisoners ; and the answer to that document con- tained in Earl Russell's despatch to Lord Lyons, dated January 23, 1862. The following propositions may be safely asserted : — A . An ambassador to a neutral country cannot be lawfully captured on board a neu- tral ship. B. " It is simply absurd to say that these men were living despatches"^. C. Neither persons nor despatches are liable to capture if their real and bond fide destination is a neutral port. 595. But in cases where the neutral vessel's desti- Contraband nation is hostile, there is a class of persons who are regarded as contraband of war, and liable to seizure by a Belligerent if found on board of her. This class includes " soldiers or sailors in the service of the enemy, and officers, whether military or civil, sent out on the public service of the enemy at the public expense of the enemy" II . The penalty for carrying such contra- Penalty. band persons is the confiscation of the vessel and of such part of her cargo as belongs to her owner. But Continuance it is to be observed that this liabihty of the vessel ° * ' '^' * Abdy's Kent, p. 381. § Woolsey, p. 311. t P. 310. II British Admiralty Manual, X Vol. ii. p. 501. p. 40. 632 FIEST PLATFOEM Iter s knowledge of continues only while she has the contraband persons on board. She cannot be seized for having had them, on board, as for a committed offence the act of which may be passed but the consequences of which con- tinue. 596. It is laid down by some authorities that the his passenger's numbcr of Contraband officers whom the neutral ships quality pre- ,.. ., ,, ,. Bumed. may have on board is immaterial, and that the ship- master cannot be excused by ignorance of their cha- racter. But perhaps these propositions, though in practice mostly true, are open to some qualification. Unquestionably, as a general rule, a wrongdoer's igno- rance of the wrongful character of his act is no excuse, if he might have known its character by taking reason- able care, such as was proper for him to take under the circumstances of the case, out of regard to the interests of those whom his act was calculated to affect. But there may be cases in which the captain of a neutral ship receives for conveyance persons who are really officers of a belHgerent State, but who come on board under circumstances which do not in the least degree disclose their character or reveal any thing that ought to cause him, as a man of ordinary prudence, to make any special inquiry respecting such travellers or the object of their voyage. The ship may be a packet-ship plying in her accustomed manner for the general conveyance of those who wish to pass between the ports at which she regularly touches ; and the ob- jectionable individuals may have taken their passages as ordinary customers. In such a case the conduct of the neutral shipmaster could hardly be said to be Possible ex- ceptional cases. or INTEENATIONAL LAW. 633 tainted with dolus, or with such an amount of culpa as to make the ship subject to confiscation, although she might be hable to detention by a cruiser of the other Belligerent while inquiry was made into the circumstances under which she had received on board the enemy-officers*. 597. A Belligerent may station his war-vessels near Blockade, to any of his enemy's harbours, or roadsteads, or other o™^"^ "^ parts of the hostile coasts in sufficient strength and number to make it difficult for any ship to reach or to leave such port or other maritime place without ex- posing itself to be fired into or otherwise impeded by some of the war-vessels so stationed as aforesaid. When and while war-vessels are so stationed, and after the Belligerent has duly notified his intention to forbid and prevent access to and egress from such port or maritime place, his war-ships may seize or may sink any neutral vessels which attempt, or which do certain acts towards attempting the forbidden passage, whatever may be the nature of their cargo, whether contraband or not. This is the Bight of Blockade, * In a case in which. Lord other British tribunal had ever Stowell strongly laid down the laid down the principle to the law of a neutral vessel's lia- extent of condemning a vessel bility to confiscation for being for such transportation." — engaged to carry well-known Me ' FriendsMp,' Eobin son's military officers of a Belligerent Eep. vi. 422. Bee on this sub- to a port of that BeUigerenO, jectHaUeck, p. 642; Wheaton's he added, " If a military offl- Elem. tome ii. p. 161 ; Hall's car were going merely as an 'Eights and Duties of Neutrals,' ordinary passenger, as other p. 132 ; "Woolsey, p. 184 ; 2 passengers, and at his own ex- Calvo, p. 494. pense, neither that nor any 634 riEST PLATPOEM Antiquity and universality of the right. A right to bs kept within limits. Classifieation of chief ques- tions as to Blockade. Requisites of a lawful Blockade. one of the most ancient and generally practised of all belligerent rights*, though the questions as to its limits have formed matters of serious international con- troversy down to our own times. 598. The same high authority!, which declares the antiquity and the universality of blockades as lawful operations of war, pronounces also that " The right of blockade is a severe right, a right to be construed strictly, not extended by mere implication " f . 599. The questions generally arising respecting the application of the Law of Blockade come mainly under three heads : — First, as to the sufficiency of the blockading force ; Secondly, as to the sufficiency of notification of the blockade ; Thirdly, as to the legal sufficiency of the act which the neutral vessel has done towards breaking the blockade. 600. The law and the leading judgments (chiefly Lord Stowell's) on the first point will be found well and tersely stated by Mr. Poison in a supplementary essay at the end of his little treatise on the Law of Nations. " In every instance, the blockade must be a blockade in fact, i. e. maintained by a force ade- quate to prevent the ingress and egress of vessels * See (quoted in page 132 supra) tlie remarks of Lord Stowell in the case of ttie ' Huztige Hane,' 3 Robinson, p. 324-, in wliioh. he held the Barbary States to be bound to be acquainted with the prin- ciple of blockade, as it is " an operation of war almost as old and as general as war itself." t Lord Stowell, see last note. X Case of the ' Juffrow Maria,' 3 Eobinson, 154. OF INTEENATIONAL LAW. 635 (The ' Nancy,' 1 Act. 57) ; and a mere declaration of blockade will of itself avail nothing (The ' Betsey,' 1 Rob. 93). Under some circumstances, a single ship, and that even if at the time assisting in the blockade of another port (The ' Nancy/ ut cit.), or stationed only in the neighbourhood, will be considered as a force adequate to the constitution of a blockade (The ' Arthur,' 1 Dods. 423) ; and this also may be the case with a squadron at some distance from the port — provided the distance be not too great, so as to prevent the ships acting upon the commerce of the port (Naylor V. Taylor, M. «& M. 205). The extent of a blockade is limited by the capacity of the force blockading, such points being exempt from the blockade which the power of the blockaders is incompetent to reach (' The Ocean,' 5 Rob. 91 ; ' The Stert,' 4 ih. 66)." 601. It is obvious that no precise and universally What is an applicable definition con be given of what is an blockading " adequate force." It need not be so large and strong and swift a squadron or fleet as to make a passage against the will of its admiral absolutely impossible ; nor must it, on the other hand, be so slight and in- efficient that the risk of passage is trifling. Perhaps the best practical definition is that contained in the Manifesto of the Armed Neutrahty issued in 1780. " In order to determine what characterizes a blockaded port, that term shall only be applied to a port where, from the arrangements made by the attacking Power with vessels stationed off the port and sufficiently near, there is evident danger in entering the port "*. * Sir Travers Twiss, p. 197. 636 PIEST PLATPOEM Extent of 602. It is generally a port that is blockaded; and WuEybe ^ in legal treatises and in the judgments of Courts on under block- the subject of blockade the word " port " is com- monly used without any addition to signify the mari- time place which is blockaded. Bat if an " adequate force " (as above explained) is employed by the blockading Belligerent, there is no limit to the extent of coast along which the right of blockade may be exercised, or as to the number of ports and other landing-places which a single blockade may comprise. Sir Travers Twiss cites the recent instance of the war carried on by the United States of America against Mexico in 1846, when " all the ports, harbours, bays, outlets, and inlets on the west coast of Mexico were declared by Commodore Stockton to be under block- ade. The United-States Government on this occa- sion, in reply to the suggestions of the British Go- vernment that such a proceeding savoured of a paper blockade, did not express any doubts of their right to maintain so extensive a blockade ; but they stated that under Commodore Stockton's general notification no port on the west coast was regarded as blockaded, unless there was a force sufficient to maintain it actu- ally present, or temporarily driven from such actual presence by stress of weather, intending to return. In the war declared on 28th March, 1854, by the three Allied Powers, Great Britain, France, and the Ottoman Porte against Russia, the combined fleets of Great Britain and France established a blockade of the whole of the Russian Ports in the Baltic and in the Gulfs of Finland and Bothnia "*. * Sir Travors Twiss, p. 225. OF INTEENATIONAL LAW. 637 603. It is obvious that tlie fair interests of Neutrals General mm- j'lpiiii tarianism imperatively require a Belligerent s right of blockade requires block- to be checked by allowing blockades de jure to extend be limited to no further than with respect to such places as are fado. actually blockaded de facto. If a State carrying on hostilities against others could, by mere manifestoes and declarations of its own will, acquire the rightful power of seizing and confiscating all neutral ships and cargoes that were voyaging to or from any portion of the seaboard of a whole country (perhaps of a whole continent), the commercial communications of civi- lized mankind would be ruinously obstructed, and most serious sufferings inflicted on nations wholly innocent of participation in the war. But Belligerents Eepeated at- in their vindictive animosity against each other, have B^igermts to frequently endeavoured thus to wound foes at the rigfr'^^^ expense of friends, and to prohibit commerce with extensive territories which they could not or, at any any rate, did not keep under vigilant observation and strict maritime control by predominant naval forces. 604. This eagerness to aggrandize belligerent pre- The " Conti- rogative at the expense of neutral commerce displayed of isoe. itself most arrogantly in the attempt to establish what was called " The Continental System" during the war between Britain and the French Empire, in the early part of this century. Napoleon the First, by his Berlin and Milan decrees (1806 and 1807), The Berlin declared first the whole of the British islands and Decrees.'™ afterwards the British dominions in all parts of the world to be in a state of blockade, and all vessels whatever that traded to them to be liable to 638 PIEST PLATPOEM The British Orders in Council. Injurious effects on Neutrals and on Britain her- self. capture by the ships of France. A similar hability to capture was imposed on every neutral vessel that traded in or carried any article of British manufacture. No ship was to be admitted into any port of France or of the other countries then under the authority or influence of the French Emperor (including nearly the whole continent of Europe) without a certificate of origin, as it was termed, the object of which was to attest that no part of the cargo was of British origin. On the other side the British Government issued Orders in Council, which declared France and all the countries in alliance with her to be in a state of block- ade, and authorized British cruisers to seize all vessels which were found to have certificates of origin on board as required by Buonaparte's decrees, or which attempted to trade with any part of the world declared by the British orders to be in a state of blockade. All neutral vessels bound to any such port were ordered in all cases to touch first at some British port and to pay custom-dues there, after which they were in certain cases to be allowed to depart to their desti- nation. Neutral nations, and especially the United States, protested vehemently against these edicts of the two belligerent powers, which, taken together, " amounted to an interdict of the whole foreign trade of all neutral nations." "If neutrals neglected the British Orders in Council they were captured by the cruisers of England, with which the sea was covered. If they paid duties at British ports they were confis- cated, if the fact could be discovered, at any port under OP INTEENATIONAL LAW. 639 French influence "*. These new Laws of War were extensively evaded by " every species of deception by which the real character of the mercantile transac- tion could be disguised. False papers, false entries, false registers were everywhere produced." The war- ring Governments themselves found it profitable to issue numerous licenses to let certain vessels pass notwithstanding the decrees and orders. Nevertheless a very great amount of commercial and manufacturing distress was created, of which Britain felt its full share. Extreme illwill was engendered between England and America ; and though the Orders in Council were withdrawn in 1812, they contributed greatly to bring about the war of 1812-14 between the two countries. 605. There is, however, little probability that any belligerent Power will again venture on such encroach- ments on the general liberty of the commerce of nations. By the Declaration of Paris in 1856 it was agreed Declaration of that blockades, in order to be valid, must be efiective — wtSg^Paper" that is to say, maintained by a force sufficient to pro- °'^ ^ ^^' hibit in reality \interdire reellement] access to the coast of the enemyf. The United States have not become formally .parties to this compact ; but they have on all * Political CyclopBBdia, tit. prevention or impediment "Blockade;" Ed. Eev. vol.xii. whict is requisite for the vaJi- p. 229 ; Lord Brougham's dity of a blockade ; and see Speeches, vol. i. p. 468; Scott's Dr. Lushington's judgment in 'Life of Napoleon,' vol. vi. The 'Franciska,' Spink's Eep. p. 122. xi. p. 128, cited by Sir Travers t See observations at page Twiss, p. 199 of his treatise. 635 supra, on the amount of 640 FIEST PLATPOEM Temporary absence of the blockading force, atiimo redeundi, does not terminate the bloctade. occasions consistently maintained that a blockade, in order to be recognized as internationally legal, mast be made actually eflfective " by the presence of a com- petent force, stationed and present at or near to the entrance of the port *. 606. According to the great majority of authorities on the subject, a blockade is not terminated by the temporary absence of the blockading squadron, pro- duced by accident, as by a storm, when there is a full intention to return as soon as practicable. " Such accidental removal of the blockading force, if it be only for a very short time, does not suspend the legal operation of the blockade ; and an attempt to take advantage of such an accidental removal is regarded as a fraudulent attempt to break the blockade." Ge- neral Halleck, after using the words just quoted, adds the following quahfication : — " But if the blockading forces should be so scattered or injured by the storm as to be unable to resume their station without re- pairs and within a reasonable time, the blockade will be considered as terminated, in the same manner as if the blockading squadron had been driven away by a superior force of the enemy" f . * Abdy's Kent, p. 365. -|- Halleck, p. 539. See also Travers Twiss, p. 199 ; Abdy's Kent, p. 365; Wheaton's Elem. torn. ii. p. 175; British Admi- ralty ilanual,p.43 ; 3 PMUimore, p. 386. Opinions of a different nature have been expressed by Ortolan and others. The vari- ous theories on the subject are collected and contrasted in Calvo, vol. ii. p. 559 et seq. M. Calvo gives his own opinion as follows : — " En resume, il semble gcneralement admis que la cessation de I'investissement reel fait cesser le blocus avec tons ses effets ; que I'cloigne- ment meme temporaire de I'es- cadrebloquante, pour une cause OF nSTTEEFATIONAL LAW. 641 607. We next come to the question, What notice what notiaca- of a blockade is necessary in order to justify the lirokadeis capture and condemnation of a neutral vessel for """^'^'t? attempting to break it? Blockades are now almost always established by By whom may direction of the supreme Government of one of the estatohed? Belligerents. When this is done, it is now the inva- riable rule for the Government, which so directs a blockade, to give formal and public notification of it official Go- to the Governments of neutral States; and when no™* this has been done, the notice to the neutral Govern- ment is held by the English and by the American courts to be " a notice to all the individuals of that This operates nation ; and they are not permitted to aver ignorance tire note "to of it, because it is the duty of the neutral Government '"""^'^"''^'• to communicate the notice to their own people "*. This is termed " constructive " notice. But it may Biooicadesmay happen that hostilities are carried on in parts of the by comman- world so distant from the seat of supreme Govern- Sonl*^'*^"' ment that commanders of a Belligerent's forces in those regions must often, with regard to blockades as with regard to many other operations of war, act without previous communication with their sovereign, in order provenant de son propre fait ou est de tres-peu de duree j c'est- par rintervention d'une es- £l-dire qu'on considere que le cadre ennemie, entraine d'or- Hocus n'a pas pour cela eesse dinaire cette consequence; mais d'exister. Cette exception ne qu'on regarde comme une ex- saurait toutefois incrimiaer le ception a la regie generale I'ab- neutre, qui a profite de I'ab- sence des forces bloquantes oe- sence du bloquantpour franchir casionne'e par le vent, I'etat de I'ancienne ligne de blocus." la mer, on d'autres accidents * Abdy's Kent, p. 367. de navigation, et lorsqu'eUe 2 T 642 riEST PLATFOEM Blockade " de facio." Theory of the French courts a3 to actual notice and warning being always neces- sary. The doctrine of constructive notice likely to prcTail, that their action may be effective. In such cases it is reasonably presumed that so much of the Sovereign's authority is delegated to the commander of a distant force as to make a blockade, which he actually insti- tutes and maintains, a legal blockade. This is called a " blockade de facto," meaning that it is a blockade de facto only, so far as regards notice from Govern- ment to Government. In such a case all jurists con- cur in holding that, before a neutral ship is condemned for breach of blockade, there must be proof that the individual neutral shipmaster had actual notice of the blockade having been established. 608. The French courts have been in the habit of holding that actual notice to the individual ship- master is always necessary, and that mere constructive notice is insufficient*. Some authorities go so far as to require not only that the individual neutral ship- master shall have received notice, but that such notice shall be given to the neutral ship on her actual approach to the blockaded port. She is then to receive warning from the blockading squadron. If she obeys that warning and retires, she is not -to be molested. If she perseveres in her attempt to pass, or if after being once warned she makes a second attempt, she becomes liable to seizure and condem- nation. 609. It is not likely that either England or Ame- rica will depart from the rule established in their courts as to the vaUdity of constructive notice. It is far more likely that France will in future wars discon- * See Sir Travers Twiss, p. 208. OF INTERNATIONAL LAW. 643 tinue her iudulgent system, which must, if maintained, now that steam-navigation hasbecomeso general, deprive blockades of nearly all their efficiency. It is obvious that if the swift and speedy " blockade-runner " (as a classof vessels during the late American war was termed) is allowed to approach with impunity the port which is known to be blockaded, and that her commander, if he finds a temporary gap in the line of the blocka- ding ships, or a convenient fog, may put on all steam and dash through, whereas if he finds all points strictly guarded he has only to receive a polite message and to withdraw without damage, breaches of blockade Avill be almost indefinitely multiplied. 610. The discussion of what is sufficient notice of What is a blockade has been necessarily blended with remarks breach of which apply equally to the topic of what constitutes a breach of blockade, subjecting vessel and cargo, one or both, to seizure and confiscation ? The English and American courts hold that when English and sufficient notice of a blockade has been given, whether trines'ttiat in°" constructive or otherwise, according to the nature of voyage' with the case, a vessel which begins a voyage with an enough.^ intent to break the blockade if possible, has actually put into execution an enterprise which is contrary to the law of nations, and which exposes the vessel to the penalties ordained by that law. If, indeed, the masters of such vessels can clearly prove that during the interval between setting sail and capture they had wholly changed their intention, and had entirely renounced the illegal voyage on which they started, they may be absolved from the penal conse- 2 T 2 644 PIEST PLATFOEM Insufficiency of excuse of ap- proach for the purpose of in- quiry. Lord Stowell's judgment. Beceut deci- sions of the American courts. quences of their inchoate but abandoned offence. But the burden of proof of such change of plan lies on them ; and the proof ought to be very full and trust- worthy before the captors can be expected to give effect to it. Of the numerous excuses of Neutrals that are intercepted when proceeding towards a blockaded port, one of the most common is the asser- tion that their intention was merely to inquire if the port was still under blockade, and to desist from any attempt at entrance if that should prove to be the case. English and American judges have concurred in refusing to listen to such pretexts. In one case Lord Stowell declared that it is " a measure of neces- sary caution and of preventive legal policy to hold the rule general against the liberty of inquiry at the very mouth of the blockaded port, as such a liberty would amount in practice to an universal license to enter, and, on being prevented, to claim the liberty to go elsewhere "*. In very recent cases that came before the Supreme Court of the United Statesf, Mr. Jus- tice Eield, in giving the judgment of the court, de- cided that " It is illegal for a ship having knowledge- of the existence of a blockade to attempt to enter a blockaded port in violation of the blockade ; and after notification of a blockade the act of sailing for a blockaded port with the intention of violating the blockade is in itself illegal. " The approach of a vessel to the mouth of a * The 'Spes' and ' Irene,' see Travers Twiss, p. 213. t Cases of the ' Admiral,' 3 Wallace, 603, and the ' Che- shire,' same volume, p. 235. OF INTERNATIONAL LAW. 645 blockaded port for inquiry, the blockade having been generally known, is itself a breach of the blockade. " If approach for inquiry were permissible, it will be readily seen that the greatest facilities would be afforded to elude the blockade; the liberty of inquiry would be a license to attempt to enter the blockaded port, and that information was sought would be the plea in every case of seizure. With a liberty of this kind the difficulty of enforcing an efficient blockade would be greatly augmented. If information he honestly desired, it must be sou/j/htfrom other quarters." 611. It will be seen from what has already been Opposite doo- ... i- ii -n 1 , • • trine of Stench written respecting the French courts requiring express courts, notice and warning to the neutral vessel to be given by the blockading squadron, that these principles of the British and American tribunals are not universally admitted. There are also other authorities which, although they do not require the warning which is directed by the French writers and judges, yet main- tain that " a remote intention to violate a legal other autho- blockade entertained at the outset of the voyage is not sufficient cause to authorize the seizure of a vessel "*. They assert that the Neutral, in order to become liable to capture, must have shown a clear " and speedy " intention to enter the port. While she is at any considerable distance from it she is free from capture, because there is stUl a locus pcenitenties, and it is not certain that she will attempt to complete the breach of blockade*. It is not, however, at all probable that * "Woolsey, p. 319; Field's Draft Intern. Code, p. 575; Bluntschli, p. 468. sect. 835. 646 FIEST PLATFOEM Case of con- tinuous voy- Doetrino of " continuous voyages" when articles not necessarily contraband are destined for a blockaded port. the strict rules, which the courts of England and America have established, will be abandoned or relaxed by either of those great Maritime Powers. 612. A more serious difficulty arises as to what are termed " continuous " voyages ; that is to say, when the primary purpose and ultimate destination of the shipment in question are the supply of goods to a port which is known to be blockaded, but where the journey thither is purposely divided into stages, and the goods are captured on board of a vessel which was not intended to convey them beyond some neutral and apparently lawful port, their transshipment and ulti- mate transmission thence to the blockaded place being destined to be effected by other means of conveyance. 613. This subject has been already adverted to when the law as to contraband was being considered. It will generally be found that where there there is a shipment intended for the supply of a blockaded place, a considerable portion of the articles shipped are goods contraband of war, such articles being of special value under the circumstances. But this need not always be the case ; and it is necessary to deal with the hypothesis of a shipment of goods, the bulk of which are not contraband, and which are destined to be conveyed to some place which is known to be blockaded by a hostile squadron. We will suppose the now common artifice to be resorted to of shipping the goods in a vessel, which is to deposit them at some intermediate neutral place, whence they are to be by other methods forwarded to the place which is blockaded. OP INTEENATIONAL LAW. 647 614. What is the gist of the offence against Inter- The offence of national Law, punishable by naval capture, which is breach impos- committed by the owner who ships them, and (it may wfbi^c£de be) by their carrier also ? It is a design to break the iuy°broton"' blockade established by the capturing Belligerent, such design having been partly put in act by the inception of the voyage. If this is admitted to be correct, and if it is kept steadily in mind, it will serve to show how far the American courts have been right in their recent extension of the doctrine of " continuous voyages " to cases of breach of blockade and of con- traband, and how far they have promulgated, or seemed to promulgate, rules which, if accepted to the full extent, would give an undue and unfair increase to the prerogatives of Belligerents with regard to the commercial liberties of Neutrals. 616. Where it is reasonably proved that the Doctrine of shipment was made and the voyage commenced with Toyage sound the design that the goods should reach the blockaded a design to port by sea, it seems quite right to hold that there is troduction'of a liability to capture and condemnation. The doc- eea.^"" ^ ^ trine of " continued or continuous voyages," as it is called, is said to have been originated by Lord Stowell, in order to counteract the evasions practised by Neutrals, in the first part of this century, of the International Law which, according to the English interpretation of it, forbids Neutrals to carry on the colonial trade of a Belligerent — a subject which will be spoken of presently. President Woolsey says on this subject (I prefer to quote an American authority) that Neutrals, and especially shippers and captains 648 FIEST PLATFOEM belonging to the United States, tried to evade the English rule by shipping at a neutral port, and then, after a show of paying duty and of landing and re- landing the cargoes, carrying them on to their desti- nation. "The courts held that, if an original inten- tion could be proved of carrying the goods from the colony to the mother country, the proceedings in the neutral territory, even if they amounted to landing goods and paying duties, could not overcome the evidence of such intention ; the voyage was really a continued one artfully interrupted, and the penalties of law had to take effect. Evidence, therefore, of original intention and destination was the turning point in such cases. " The principle of continued voyages will apply when cases of contraband, attempt to break blockade, &c. come up before courts which accept this English doctrine. In our late war many British vessels went to Nassau, and either landed their cargoes destined for Confederate ports there, to be carried forward in some other vessel, or stopped at that port as a convenient place for a new start towards Charleston or some other harbour. If an intention to enter a blockaded port can be shown, the vessel and the cargo are subject to capture according to English and American doctrine from the time of setting sail. Now the doctrine of continued voyages has been so applied by our Supreme Court that it matters not if the vessel stops at a neutral port, or unlades its cargo and another vessel conveys it onward, or if formalities of consignment to a person at the neutral port, or the payment even of duties are used to cover the transaction ; provided destination to the OP INTEENATIONAL LAW, 649 blockaded port, or, in the case of contraband, to the hostile country, can be established, the ship on any part of its voyage, and the cargo before and after being landed, are held to be liable to confiscation. All this seems a natural extension of the English principle of continued voyages, as at first given out ; but there is danger that courts will infer intention on insufficient grounds." 616. This comment of President Woolsey seems to be sensible and fair ; and his caution against the Judges of Prize-courts being led by animosity against the enemy, and by the contagious influence of public opinion among their countrymen to infer continuous intention on insufficient grounds, is very necessary, as has been shown by the case of the ' Springbock,' which Case of the • 1 • 1 • 1 i-iT ' Springbock.' has already been mentioned in this chapter. We must, however, accept the doctrine of "continuous "Continuous . . T • Toy^gs" must voyages " in blockade cases with this important limi- not incJude . . , , land carriage. tation : the doctrine of " continuous voyage must, when we are dealing with cases of blockade, be limited to cases of " voyage " in the strict English sense of the word. It is only by something done at sea that a blockade by sea can be broken ; and when the design of the Neutral is to introduce his goods into the blockaded place by land there is no breach of naval blockade in contemplation. But the judgments of the American courts in recent cases, while they resolutely apply the doctrine of " continuous voyage," do not contain or indicate any such qualification. In Perilous ex- one instance the theory has been practically upheld, d™trine°in * that the continuous taint from illegal ultimate destina- rioTn^dsions. tion is fatal, although the goods are shipped for a 650 riEST PLATFOEM neutral country, whence they are to be conveyed by land. President Woolsey says of this, "A still bolder extension was given to it by our courts in the case of vessels and goods bound to the Rio Grande, the goods being then carried up by lighters to Mata- moras. We could not prohibit Neutrals frora sending goods to the Mexican side of that river ; but if it could be made to appear that the goods were destined for the side belonging to the United States, that was held to be sufficient ground for condemnation of them ; although, in order to reach their destination, they would need overland carriage over neutral territory." I apprehend that this extreme advancement of bellige- rent rights will not receive general acquiescence, or acquire even partial permanency*. Egress and 617. A blockade is generally intended to prevent breach of any pcrsous or things from either going into or coming from the blockaded place. It is designed to be a stoppage of both ingress and of egress, though it is possible that it may be limited to one of these pur- poses ; but such cases are exceptional. The rules as to breach of blockade by egress are thus summed up by General Halleck : — " As a general rule, the egress * See on the American deei- 1873; Prof. Bernard's 'British sions as to continuous voyages, Neutrality,' p. 307 ; Wheaton's the citation from the ' Stephen- Elem . sect. 508, Dana's edition Hart ' case already made at and Dana's note ; The ' Ber- p. 617, supra. See also Dr. muda,' 3 Wallace's Eeports, Gessner's Juridical Eeview of 574 ; The ' Peterhoff,' 5 Wal- the case of the ' Springbock ;' lace, 54; The ' Dashing Wave,' Mr. B. Lawrence's Letter to M. 5 Wallace, 170 ; Bluntschli, EolinJacquemyns of 30th Sept. p. 488. paragraph 835. sect. 5. OP INTEENATIONAL LAW. 651 of a ship during blockade is regarded as a violation of the blockade, and renders her liable in the first instance to seizure ; and in order to exempt her from condem- nation the most satisfactory proof must] be given. . , . . There are a number of cases in which the egress of the neutral vessel, during a blockade, is justified or excused. First, if the ship is proved to have been in the blockaded port when the blockade was laid, she may retire in ballast ; for such egress afi'ords no aid to the commerce of the enemy, and has no tendency to defeat any legitimate purpose for which the blockade was established. Second, if the ingress was from physical necessity, arising from stress of weather, and the immediate need of water, or provisions, or repairs. Third, where the entrance with a cargo was authorized by a license, such license is construed to authorize the return of the ship with a cargo. Fourth, where a neutral ship, arriving at the entrance of a blockaded port, in ignorance of the blockade, is suffered to pass, there is an implied permission to enter, which fully protects her egress. But this implied permission does not, of necessary consequence, protect the cargo ; for its owners may be guilty of a criminal violation of the blockade even where the ship is innocent. Fifth, a neutral ship, whose entry into the blockaded port was lawful, is permitted to return with her original cargo that has been found unsaleable, and reshipped during the blockade. Sixth, * Another and a very equitable exception,' says Duer, ' is allowed in favoiir of a neutral ship that leaves the port in the just expectation of a war between her own country and that to which 652 FIEST PLATFOEM the blockaded port belongs. In this case she is per- mitted to depart, even with a cargo purchased frona the enemy during the blockade, if the purchase was made with the funds of neutral owners, and the invest- ment and shipment were probably necessary to save the property, in the event of a war, from a seizure and confiscation by the enemy. But it is not the mere apprehension of a remote and possible danger that will entitle a neutral ship to this exemption. To save the vessel and cargo from condemnation, it must ap- pear that there was a well-founded expectation of an immediate war, and, consequently, that the danger of the seizure and confiscation of the property was immi- nent and pressing ' "*. VPhafcamounts 618. With rcspect to what may amount to a breach biockadrout- of blockadc outwards, it is to be remarked that such "^'"^ ^' an offence may be committed by a vessel which does not herself come forth from within the line of blockade. A vessel, which is lying outside the line of blockade, will commit a breach of blockade, if she there takes on board cargo which is brought to her by lighters or other vessels sent out to her from within the line. But where, in the case of a blockade by sea, goods are sent from the port by land conveyance or by inland navigation to a maritime place beyond the line of blockade, and are there taken on board a neutral ship which has stationed herself there for the very pvirpose of receiving, no breach of blockade is considered by the English courts to have been committed. The * Halleck, pp. 560, 561. OF INTEENATIONAL LAW. 653 main case on this subject is that of the ' Stert ' *. Lord stoweii's Tin n • • • -1 • 1 • 7- mi • judgment in Lord btoweJl,m giving judgment, said, %nter alia, ' ims the case of is a question arising out of the blockade of Amster- dam, respecting goods put on board in a port of the Texel for the very purpose of being sent to London without any interruption of the voyage, but conveyed out of Holland to Embden by means of the canal navigation. The question is, vphether this is to be considered as a breach of the blockade ? A blockade may be of different descriptions. The blockade of Amsterdam, which was imposed on the part of this country, was, from the nature of our situation, a mere maritime blockade effected by force operating only at sea. As far as that force could be applied it was indubitably a good and legal blockade ; but as to an interior navigation how was it a blockade at all ? . . . It is argued that, if this course of trade is allowed, the object of the blockade, which is to distress the trade of Holland, will be defeated. If that is the conse- quence, all that can be said is that it is an unavoidable consequence. It must be imputed to the nature of the thing, which will not admit of an effectual remedy of this species. ... If the blockade be rendered imperfect by this construction, it must be ascribed to the physical impossibility of the measure, by which the extent of its legal pretensions is unavoidably, limited." I have quoted this judgment more readily on ac- count of its bearing both on the subject immediately before us and on the matter discussed a few paragraphs * 4 Eobinsou's Eeports, 65; and see 3 Phillimore, 390. 654 PIE8T PLATPOEM How long the guilt of breach of blockade continues. Penalty for breach of blockade. back, whether there can ever be a lawful seizure and condemnation when no breach of the actual line of blockade is effected or designed. 619. The liability to seizure for breach of blockade continues so long as the blockade actually continues ; and so long as the offence for which the seizure is made is considered to be continuing. The rule commonly laid down is that the capture must be effected while the vessel is in delicto. A vessel which has broken blockade by egress is considered to be in delicto until she has reached her port of destination and has com- pleted her voyage. But as soon, as a blockade is raised, a vessel ceases to be liable to seizure for breach of blockade, although if already captured she is not to be released*. 620. The general penalty for breach of blockade is confiscation of both vessel and cargof . The presump- tion of law is that the violation of a blockade is in- tended for the gain of the owners of the cargo, as well as of the owners of the ship, and that it takes place with the sanction of both. Exceptional cases may occur, in which the owners of cargoes may succeed in proving innocency ; but the proof which can procure exemption of the cargo from the ordinary conse- quences of the ship's illegal destination, or of the ship- •master's illegal conduct, must be very full and explicit indeed. Conversely, cases may occur where the cargo is shipped with an illegal purpose of intro- duction into a blockaded port, but where the ship- master who conveys it on part of its journey to some * Abdy's Kent, 47. t Ibid. 52; Travers Twiss, 223. OP INTEENATIONAL LAW. 655 intermediate neutral port has no knowledge of, and no reasonable grounds for suspecting, its ulterior unlawful destination. In such a case, although the stoppage of both ship and cargo will be regular and proper, the ship may be released and the cargo only condemned after due inquiry by a proper tribunal*. 621. During the last century and in the early part Consequences of the present century neutral vessels and cargoes were engaging in frequently captured by English cruisers, and con- coasting trade demned by English courts for being engaged in the gerent.^ coasting or colonial traffic of a State hostile to Eng- land, such coasting or colonial traffic having been confined by that State to its own subjects during peace- time, and having been only opened to foreigners in time of war, after the preponderant force of England at sea had incapacitated such Belligerent from carrying on his coasting and colonial traffic by means of his own marine. The English jurists maintained that for a Neutral thus to interpose and reopen the colonial or coasting traffic of England's enemies, when closed by the warlike operations of the British navy, was a departure from neutrality and an interference in the war, and that, such trade being reserved in the regular course of things by the Belligerent for his own vessels, neutral merchants and shipowners, who took part in that trade, assumed the character of the enemy's subjects, and became liable to suffer accor- dingly. This has been called "The rule of the war The "Euieof fl^ ^sr -f of 1756," although its assertion at earlier periods is 1756."°''^° ' * See the case of tlie ' Springbook.' 656 PIE8T PLATPOEM demonstrable. But it was in the Seven Years' War (which began in 1756) that the subject was brought prominently into notice. During that war (in which England and France took opposite parts) the supe- riority of the English naval power was fully established, and the communication between France and her (then considerable) foreign possessions was almost entirely obstructed. Before the war France had not permitted any foreigners to trade with her colonies ; but in con- sequence of the distress thus brought upon those colonies and France herself by the British fleets and cruisers, the French Government permitted a neutral power, the Dutch, to carry on the traffic with the French colonies. The English cruisers captured Dutch ships so engaged, and the English Prize Courts con- demned them. The subject created considerable controversy among European jurists ; and it acquired additional interest and importance during the long series of hostilities carried on by England against Revolutionary and Imperial France between 1793 and 1815. The United States protested earnestly against the international legality of the Eule ; but it was steadily maintained by England, and many of Lord Stowell's most elaborate and able judgments are de- voted to its justification. Nor were there wanting American authorities that foreboded that " if the United States should hereafter attain that elevation of maritime power and infiaence which their rapid growth and great resources seem to indicate, sfid which shall prove sufficient to render it expedient for their maritime enemy to open all his domestic trade to en- OF INTEENATIONAL LAW. 657 terprising Neutrals, we might be induced to feel more sensibly than we have hitherto done the right of the policy and equity of the rule "*. The truth of this prophecy has been abundantly manifested by the recent decisions of the United States Courts in the ' Stephen Hart ' and the other cases on which we have just been commenting. 622. It has appeared to some writers that the Doubtful whether Free subject of neutral vessels becoming hable to seizure Trade has 11-11 • 1 c entirely put for engaa-inof m the colonial and coasting trade of a an end to the . . „ importance ot Jielligerent has become unimportant in consequence ot questions the advance made by the doctrines of Free Trade, the Colonial Mr. Godfrey Lushington, in his preface to the Manual of Prize-Law, iss'ued by direction of the British Ad- miralty, says that, " The liability of neutral vessels to detention for carying on the coasting or colonial trads of the enemy, may be taken to have been silently repealed by the advance of free trade. * * * The restriction was natural enough in times when, during peace, each country reserved such trade as the exclu- sive privilege of its subjects ; for then, if in time of war Neutrals were found to be carrying on such privileged trade, the presumption was that the enemy, finding it impossible on account of the belhgerent cruisers to carry on the trade any longer for himself under his own tlag, had deputed it to Neutrals to carry on for him. But now, wherever free trade pre- vails in times of peace, this reasoning no longer holds * Abdy's Kent, p. 229. At- of 1856 " and the doctrines tempts have been made to draw of Lord Sto-well ; but it seems distinctions between " the rule now immaterial to discuss them. 2u System. 658 FIEST PLATPOEM Claims of some bellige- rents to seize enemy-goods in neutral Tessels ; claims of others to seize neutral's goods in enemy-vessels. Neutral's claim of " Free ships free goods." These contro- Tersies not absolutely settled by the Declaration of Paris of 1856. good ; and the prohibition to Neutrals to carry on the coasting or colonial trade of the enemy will probably never be revived, even if England were to be engaged in war with any country which had not yet allowed free trade to its colonies, or which still maintained Navigation Laws " *. It may, however, be reasonably doubted whether equal liberality will be shown by other nations. Some may be disposed to adopt the old English theories as to continuous voyages, without also adopting the modern English principles and practice respecting Free Trade. 623. Some of the most frequent and most formida- ble controversies between Belligerents and Neutrals used to arise from the claims made by some nations to seize an enemy's goods if foimd at sea, although on board of a neutral vessel, and from the claims made by other nations to seize a neutral's goods if found at sea on board of an enemy-vessel. Against the first of these claims Neutrals used to assert the maxim that " Free ships make free goods." Sometimes they admitted at the same time the converse maxim, " Enemy-ships make enemy-goods ;" but more frequently it was found convenient in the interest of Neutrals to deny the legality of both causes of seizure. 624. The Declaration as to Maritime Rights which accompanied the Treaty of Paris in 1856, is regarded by many persons as having once for all settled these disputes in favour of Neutrals ; so that in future wars neutral ships will be allowed to carry enemy- goods (if not contraband with a hostile destination, * Page xi. OF INTEENATIO'NAL LAW. 659 and if not shipped for the purpose of violating the laws of blockade), and neutral goods will not be liable to confiscation for being shipped in vessels of a Belli- gerent. But it is by no means certain that the De- claration of Paris has fully or irrevocably settled the matter ; and it was a matter so important and so much debated for so long a time, that it cannot be passed over without some narrative and explanation. 625. The ancient treatise on maritime rights and Ancient Law usages, called " Consolato del Mare," shows clearly made^eMiny- (as do other old authorities) that the maritime powers on'board of of the Middle Ages acted generally on the rule that a theWgrBeas. belligerent State has the right to take possession of enemy's property found on the high seas, the high seas being " nullius territorium," and consequently no wrong to the territorial sovereignty of any third State being wrought by such seizure and appropria- tion*. The fact that such goods were being conveyed in a ship which belonged to persons not members of the hostile State was not considered to give protection to the goods. The ownership of the goods themselves ownership of gave the test of their liability or non-liability to forfei- test of°their* ture ; and on this same principle, when a belhgerent's o^ same priu- cruiser captured an enemy's ship having on board of go^odsfo^und^* it goods belonging to a merchant of some nation not enemyihip" engaged in the war, it was usual to give up such goods ^®'^*' restored, to their owner. 626. The first branch of this rule, that which sub- General and jected to capture enemy's goods on board of neutral tionofUabUity of enemy's * See Sir Travers Twiss, Manning, 3 Phillimore, p. 240 ; goods on p. 144 ; Wheaton, ' Histoire,' and see suprot, 539. traTdu°^ °^"" torn. i. 69 ; Sheldon Amos, 2r2 660 riEST PLATFOEM First opposi- tion by Prus- sian Govern- ment in 1752. British memo- rial supporting the right. Hlibner's ad- vocacy of " Free ships free goods." Preponderant authority of Vat,tel and others contra. The Hubne- rian paradox taken up by the Russian Empress Ca- therine. ships, was recognized by the early modern writers on International Law, and continued to be acknowledged and to be enforced in practice (save when modified as between particular States by special treaties) until the middle of the last century. In 1752 the Prussian Government affected to treat as a grievance the taking of French goods out of Prussian vessels by British cruisers in a war between England and France. This and other pretensions of the Prussian King were an- swered by the British jurists employed by the Govern- ment of this coun1;ry in that masterly memorial so often referred to in this volume. In 1759 the maxim of " Free ships free goods " was for the first time advocated by a European jurist of high reputation, by Hiibner, from whom all subsequent writers on the same side have borrowed the greater part of their arguments. But Vattel's great work on the Law of Nations appeared about the same time ; and that almost paramount authority decisively recorded his judgment that " If we find enemy's effects on board a neutral ship we seize them by the right of war." Many others wrote on the same subject, the vast preponderance of authority and of reason being on the side of the ancient doctrine and opposed to the Hiibnerian paradox. 627. But this new doctrine was taken up towards the end of the century by the Empress Catherine of Russia. She issued in 1780 a manifesto* of Neutral * For the mode in whiich Count Panini induced Cathe- rine to adopt the project of the " Armed Neutrality,'' see Wheaton, 'Histoire du Droit des Gens,' tome i. p. 358, and 3 Phniimore, p. 272. OP INTEENATIOITAL LAW. 661 Rights, in which several other Powers concurred. One article of it required that the property of the The "Armed subjects of belligerent powers should be free on board ^" '^^ ' ^' neutral ships, excepting goods that were contraband. England (then engaged in the American war) firmly resisted this demand ; but with the conclusion of that war in 1783, the subject lost for a time its practical importance. But during the subsequent war between The Baltic England and Erance, Russia revived the doctrines of the armed neutrality, to which Sweden, Denmark, and Prussia then gave in their adhesion. England again resolutely and successfully resisted this inno- steadily and . . . , -, BuocessfuUy vation on a belligerent s maritime rights ; nor was the resisted by doctrine of " Free ships free goods " ever admitted into the general international jurisprudence of Europe before the Declaration of Paris at the close of the Crimean war. 628. The Government of the United States, under The United its earliest and best statesmen, fully admitted the tain the old soundness of the principles of the old Maritime though ex- Law as maintained by England ; and the great judges For the pr™ and pubhcists of the United States have adhered to P°^«-i ^^^^"g^- them with honourable consistency, though frequently expressing a wish that the new doctrine could be introduced by general consent. One quotation from Chancellor Kent on this subject will be sufBcient. " During the whole course of the wars growing out of Decisive . authority of the French Revolution the Government of the United chancellor , ,., . Kent as to the States admitted the English rule to be vahd, as the validity of the true and settled doctrine of International Law — that trine!^ enemy-property was liable to seizure on board 662 FIEST PLATrOEM Second branch of the old rule, which pro- tected neutral goods on board of enemy- ships, rejected by France and Spain. They establish con- trary maxim, that "the ship taiints the Prance, how- e¥er, long adhered to the old law, that enemy-goods may be seized in any ship. Final state of French Mari- time Law on the subject before the Crimean war. neutral ships, and to be confiscated as prize of war "*. 629. With regard to the other branch of the ancient rule, that namely which enjoins the restora- tion to the neutral owner of his goods if found at sea by a belligerent on board an enemy-ship, it was aban- doned by France in the seventeenth century ; but France did not then nor for a very long time afterwards seek to establish the full maxim that the character of the flag determines the character of the goods. Not to mention some earlier edicts on the subject, the French Government in 1678, by their Ordonnance de la Marine, declared that neutral's goods on board of enemy- ships should be confiscated, and at the same time affirmed the law that enemy's goods on board of neutral ships were similarly liable. The French then, by way of additional penalty, ordained that the carriage of such goods rendered the neutral ship herself subject to confiscation. The phrase was, that "the cargo tainted the vessel." Without tracing all the varied and somewhat obscure phases of French law on the subject, it will be enough to state that during the greater part of the present century, and down to the beginning of the Crimean war, the French tribunals had adopted and established the principles that enemy's goods on board of neutral ships were not to be seized, but that a neutral ship which carried enemy's goods made herself thereby liable to seizure * Abdy's Kent, p. 341. The leading case in the re- corded jurisprudence of Ame- rica on the subject is The ' Ner^ide,' 9 Crauch, 388. OP INTERNATIONAL LAW. 663 and forfeiture. Spain followed the doctrines of France*. 630. England in this branch also of maritime law England and adhered to the old rule, as did the United States, states main- Both those great maritime powers steadily asserted efentiaw^sto and acted on the principle that when an enemy's ship friend's goods. was captured having goods on board which were clearly proved to be the property of a neutral, such goods ought to be restored to their neutral owner. 631. When the war against Russia began in 1854, Effect of mari- in which England and France were allies, and had to ti™n ofXance carry on maritime operations in concert with each rntheOnmean other, the two great confederates found that each had a ^'^'^' code of maritime laws directly opposed to that of the other on the very important subject of naval captures. As Sir R. PhiUimore has said, " The result was a compromise. France abandoned her doctrine that Bach Power enemy's ships made enemy s goods ; England agreed to forcementof allow, during her alliance with France in the [then] itdeVsits present war, the doctrine that ' Free ships make free rigiits™uring ()oods' But they scrupulously and expressly declared in doing so she ' waived a part of the belligerent rights appertaining to her by the Law of Nations ' "f . 632. England thus, during the Crimean war, re- tained in theory though omitting in practice her ancient belligerent right on this important subject. But at the close of the war she became party to a renunciation of that right without reserve or protest. * Wheaton, ' Histoire,' torn. chap. x. ; Msnning, chap. vi. ; i. pp. 261, 273, 357, 368, 363 ; HaUeck, p. 631. torn. ii. p. 47. 3 PhiUimore, f Vol. iii. p. 293. 664 FIEST PLATrOEM More impor- tant renimcia^ tion of those rights at the end of the war. This renuncia- tion may not be final and conolusiTe. Congress of Plenipoten- tiaries at Paris in 1856. Treaty of Paris prepared and signed by them. They after- wards hold conferences embracing general mari- time law. They draw up " The Decla- ration of Paris." That renunciation was effected in a somewhat anoma- lous manner ; and there is still considerable diversity of opinion among Englishmen as to the extent to which that renunciation is binding upon England either legally or morally. The Plenipotentiaries, who were respectively appointed by England, France, Russia, Turkey, and Sardinia (the beUigerents in the Crimean war), and also by Austria and Prussia (which took part in the negotiations for peace), to frame articles on which a Treaty of Peace should be con- cluded, drew up, signed, and sealed the Treaty of Paris (afterwards duly ratified by the Sovereign Powers) on the 30th of March, 1856*. The Plenipotentiaries continued to meet from time to time in conference at Paris ; and among the subjects discussed by them was the state of Maritime Lawf. On the 16tli of April they drew up and signed the Manifesto which we are now considering, commonly called " The De- claration of Paris," the text of which I shall quote, as almost every word of it is important. It will be found in Hertzlett's second volumej. It is as fol- lows : — " The Plenipotentiaries -who signed the Treaty of Paris of the 30th of March, 1856, assembled in Conference, " Considering i — " That Maritime Law in time of war has long been the sub- ject of deplorable disputes ; " That the uncertainty of the law and of the duties in such a matter gives rise to differences of opinion b>jtween neutrals and * See Hertzlett's 'Map of Europe by Treaty,' vol. ii. p. 1250. t See list of these confe- rences and their subjects in Hertzlett, vol. ii. p. 1276. i P. 1282. OF INTEENATIONAL LAW. 665 belligerents which, may occasion serious difficulties, and even conflicts ; that it is consequently advantageous to establish a uniform doctrine on so important a point ; " That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their Govern- ments are animated, than by seeking to introduce into interna- tional relations fixed principles in this respect. " The above-mentioned Plenipotentiaries, being duly autho- rized, resolved to concert among themselves as to the means of attaining this object ; and having come to an agreement, have adopted the following solemn declaration : — " 1. Privateering is and remains abolished ; " 2. The neutral flag covers enemy's goods, with the exception of contraband of war ; " 3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag ; " 4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. " The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the States which have not taken part in the Congress of Paris, and to invite them to accede to it. " Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the under- signed Plenipotentiaries doubt not that the efforts of their Go- vernments to obtain the general adoption thereof will be crowned with full success. " The present Declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it. " Done at Paris, the sixteenth of April, one thousand eight hundred and fifty-six. (Signed) " Bitol-Schauenstbin. Haizfeldt. HttBNEK. OEIOEF. Walewski. Bbtiiwow. BoTJRaiTENET. CaVOTTR. CtAKENDOif. De Villa Maeina. COWLBT. AALI. Manteitfeel. Mehemmeb Djemil." 666 PIEST PLATEOEM Otber States invited to accede to the new laws. Number of affirmatives. Spain and Mexico are dissentient. Important dissent of tlie United States. Doubts as to the policy of England's par- ticipation in this compact, and as to its validity. 633. The Governments of other civilized nations (not represented at the Congress of Paris) vi^ere invited by the Enghsh and French Governments to accede to this Declaration. Upwards of forty European and American States declared their accessions. No consi- derable nation of Europe refused to do so, excepting the Spanish; and Spain professed her wiUingness to adopt all the articles of the Manifesto, save that virhich abolished privateering. Mexico followed Spain. These States, therefore, stand aloof from the compact. But a far more serious blow to the expected establish- ment of the new system of Maritime Law was given by the refusal of the great Common weath of the United States of America to join in the Paris Declaration, unless the very important addition were made to its articles of declaring all private property, including that of the subjects or citizens of belligerents, to be exempt from seizure in maritime warfare, except articles that are contraband of war. 634. The policy of England in becoming a party to the Declaration of Paris, which purports to abolish one of the most highly valued rights of a belligerent" Power which is specially strong at sea, has been called in question by many politicians ; and many have doubted how far that Declaration is binding upon her, being no part of a formal treaty, and not having been prepared or executed by representatives espe- cially appointed for such a purpose, but set forth in a document prepared after the execution of the Treaty of Peace, by which the war was terminated, and having OF INTEENATIONAL LAW. 667 no natural connexion with the objects of the Treaty itself*. 635. The policy of England's joinder in the Deck- England's ad- PT-i- 11 - PI i herenoe to the ration ot raris, and the propriety oi her permanent Declaration of adherence to it, have been more than once brought tioned."^ into question in the British Imperial Parliament. The Ministries in office at the times of these debates have been sanctioned by both Houses in declining to re- nounce the compact, which England is considered Ratifying to have made or ratified with the other signatories of inducing the Declaration when due regard is paid to the fact to accede to'^it. of so many other powers having acceded to it on her invitation. It seems to be generally considered that it is open it ia perhaps , , _. , ^ . . . open to her to to England to renounce the Declaration, on giving renounce on ample notice of her intention to do so to all Powers interested in the subject ; but that, as a matter of ex- pediency, it has not become advisable for her to recede from it. These questions are so inevitably blended Expediency of with political contests of the present time, that I avoid be weii con- their further discussion. I will only observe that every successive year, during which England allows the Declaration of Paris to stand as the acknowledged record of the law which she is pledged to follow re- specting maritime rights of capture, will make it more and more difficult for her to revert to her ancient belligerent practice on the high seas, should circum- stances make such a reaction on her part desirablef . * See preface to Sir A. Phil- bate in Parliament on this sub- limore's 3rd volume, p. x. ject was brought on by Mr. t The most interesting de- Baillie Cochrane's motion re- 668 FIEST PLATPOEM Eights of Visitation and Search. 636. So long as belligerents retain the right of seizing neutral vessels or cargoes on the high seas for any cause whatever (and no one has yet seriously proposed to abolish that right in cases of conveyance of contraband, or of breach of blockade), the ancillary right must continue of Visitation and Search. The law on these subjects is thus accurately summed up by Bpeoting the Declaration of Paris on April 13, 1875. The report of it will be found in Hansard, ccxxiii. p. 826. In support of the motion censuring the Declaration, and urging our withdrawal from it, it was argued the signatories of the Declaration on the part of Eng- land acted without due autho- rity ; that they and the other ambassadors, who were sent by their respective Governments to Paris in February 1856, were empowered to prepare a Treaty of Peace, which was accordingly prepared and signed on the 30th day of March in that year; that when they continued to meet afterwards and discuss other matters not necessarily connected with the Pacification, they were mere volunteers and private persons ; thatthe Declaration, which they drew up and signed as to mari- time rights, was (so far at least as England was concerned) never ratified by the Sovereign Power ; that those who acceded to it did so in the expectation and on the faith that it would be universally, or almost uni- versally accepted, whereas the refusal of the United States to join in it deprived it of the character of general interna- tional law ; that England had become especially free to re- nounce it, after Russia's re- nunciation of the terms of the Treaty respecting the neutrali- zation of the Black Sea ; that the policy of abandoning the right of seizing neutral goods in enemy's ships was pernicious to English interests, and op- posed to the doctrine which had always been earnestly maintained by England's high- est statesmen, jurists, and naval commanders of all poli- tical parties. The motion was opposed as " inopportune." It was urged that even if the engagement had been entered into without all customary for- malities, it was virtually bind- ing upon England, especially after she had induced so many other States to become parties to it. It was argued also that OF INTEENATIONAL LAW. 669 Mr. Poison : — " The right of visiting and searching Poison's sum- merchant-ships upon the high seas, whatever their Law. cargo and whatever their destination, for the purpose of seeing what the ships and their destination are, and whether or not they are employed in the enemy's service ('Le Louis,' 2Dods. 244-253), is an incontes- table right of the lawfully commissioned cruisers of a belligerent State ; nor can even the command of a neutral Sovereign justify his subjects in forcibly resis- ting its exercise (The ' Maria,' 1 Rob. 360). Such resistance is punishable by the condemnation of the ship (The ' St. Juan Baptista ' and ' La Purissima Con- cepcion,' 5 Rob. 33) and cargo ; and a simple intention to resist will involve the same consequences (The ' Maria,' ut cit.) ; but such an intention will not be presumed from a mere attempt to escape a cruiser before possession has been taken (The ' St. Juan ') "*. the fact of the highest Bri- rights would be construed as tish authorities, the Sovereign showing her intention to join and the Imperial Parliament in the general war which ap- havLng refused to repudiate it, peared to be imminent, though frequently made the sub- * Poison, p. 50. For the ject of public debate, amounted mode in which the rights of to a sanction and to a sufficient Visitation and Search should ratification of an act which be exercised, so as to secure purported to have been done the rights of the belligerent with by British plenipotentiaries the least possible inconveni- having competent authority. ence to the neutral, and for the The question was again liabilities of the commander of debated during the present a war-ship, if he abuses those year, 1876. The attempts to rights, or detains either ship procure Parliamentary repudi- or cargo vexatiously, or without ation or censure of the Treaty reasonable and probable cause, were again unsuccessful. It see the British Admiralty was urged that England's for- Manual, so often referred to in mal resumption of old war- this treatise. 670 PIEST PLATFOEM Eecognition by Neutrals of new States in eases of armed Seces- sion, EeTolt, and CiTil war. Neutrals in- evitably aifec- ted by such occurrences. Belligerent rights may be allowed before independence is recognized. 637. Many widespread wars have arisen, and many permanent heart-burnings between nations have been created in consequence of civil dissensions that have broken out in a single State, and of revolts of portions of a single State against the old central sovereignty. Foreign nations cannot avoid being affected by such events. Their subjects must often necessarily have dealings with the members of the revolutionary or insurgent party in the disturbed State ; and in the case of maritime nations, the com- plications as to jural rights and liabilities caused by such intercourse, or by acts of violence committed by armed partizans and armed ships, become more and numerous and embarrassing. If the conflict among the opposite parties in the disturbed State is brief, and especially if the old government speedily reesta- blishes its authority, the difficulty imposed on foreign nations is trifling. They have but to wait a little ; and some degree of inactive patience on their part is always proper. But if the conflict assumes formidable proportions and lasts long, if it becomes Civil War and not mere local tumult, the duty of other States towards their own subjects (to pass by other reasons) requires the rulers of those other States to pursue a different line of conduct. It by no means follows that they are at once to treat the revolting party as an Independent State. While the conflict continues, and the old government has any reasonable chance of reorganizing its sway, this ought not be done ; but when the conflict is a civil war, each party to it be- comes in fact a belligerent, and is to be regarded by OF INTEENATIONAL LAW. 671 Foreign States as entitled to belligerent rights and as under belligerent liabilities. Hence there arises a division of the duties of neutrals in cases of armed dissension breaking out in a friendly State. We must consider the neutral's duties — 1st. As to Recognition of Belligerency ; 2nd. As to Recognition of Independence. 638. With respect to the rights and duties of Neutrals as to acknowledging the belligerent status of an insurgent, or a seceding, or a revolutionary party, the exposition given by the American jurist, Mr. Dana, is so sensible and clear that I gladly adopt Dana's eiposi- it, following the example of Sir Alexander Cockburn, foreign s'tates who cites it (with several corroborative authorities to nizing^beuige- the same effect) in his judgment delivered in the "^^^ *""'" ' Alabama ' arbitration. Mr. Dana's words* are as follows : — " The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign State. The reason which requires and alone can justify this step by the Government of another country, is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent Government is seeking to subdue an insurrection by municipal forces, and the insurgents claim a political nationality and belligerent rights, which the parent Government does not concede, a recognition by a foreign State of full belligerent rights, if not justified by necessity, is a * In note to section 23 of ments,' see Blue Book (Nortli his edition of Wheaton's ' Ele- America), Fo. 2, 1873, p. 75. 673 FIEST PLATFOEM gratuitous demonstration of moral support to that rebellion, and of censure upon the parent Government. But the situation of a foreign State with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important therefore to determine what state of affairs and what relations of the foreign State justify the recognition . "It is certain that the state of things between the parent State and insurgents must amount in fact to a war in the international sense of the word ; that is, powers and rights of war must be in actual exercise : otherwise the recognition is falsified ; for the recogni- tion is of a fact. The tests to determine the question are various, and far more decisive where there is a maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political organization of the insurgents sufficient in character, regulation, and resources to constitute it, if left to itself, a State among the nations, reasonably capable of discharging the duties of a State, the actual em- ployment of military forces on each side acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of pri- soners, and the treatment of captured insurgents by the parent State as prisoners of war — and, at sea, em- ployment by the insurgents of commissioned cruisers, and the exercise by the parent Government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the con- OP INTEENATIONAL LAW. 673 dition of things is undoubtedly war ; and it may be war before they are all ripened into activity. " As to the relation of the foreign State to the con- test, if it is solely on land, and the foreign State is not contiguous, it is difficult to imagine a call for the re- cognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the centre of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign State must de- cide whether to hold the parent State responsible for acts done by the insurgents, or to deal with the insur- gents as a de facto Government. (Mr. Canning to Lord Granville on the Greek war, June 22, 1826.) If the foreign State recognizes belligerency in the insurgents, it releases the parent State from responsi- bility for whatever may be done by the insurgents, or not done by the parent State where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr. 105.) In a contest wholly upon land, a contiguous State may be obliged to make the decision whether or not to regard it as a war ; but, in practice, this has not been done by a general and pro- spective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent State are maritime, and the foreign nation has exten- sive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, 2x 674 PIRST PLATEOEM then the relations of the foreign State to this contest are far different. " In such a state of things the liabiHty to pohtical complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers on both sides may stop, search, and capture the foreign merchant vessel ; and that vessel must make no resistance, and must submit to adjudication by a Prize Court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant-vessel; and that vessel may resist all attempts in that direction, and the ships of war of the foreign State may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals. If it is not war, no such tribunal can be opened. If it is war, the parent State may institute a block- ade jiire gentium of the insurgent ports, which for- eigners must respect ; but if it is not a war, foreign nations having large commercial intercourse with the country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and offi- cials, at sea and in port, as lawful belligerents. If it is not a war, those cruisers are pirates, and may be OP INTEENATIONAL LAW. 675 treated as such. If it is a war, the rules and risks respecting carrying contraband, or despatches, or mihtary persons come into play. If it is not a war they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility, may be breaches of neutrality laws ; while, if it is not a war, they do not come into that category but under the category of piracy or of crimes by municipal law. " Now, all citizens of a foreign State, and all its executive officers and judicial magistrates, look to the Political Department of their Government to prescribe the rule of their conduct, in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelhgible manner for all possible contingencies by the simple declaration, that the con- test is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the Political Department of the Government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial ofHcers, at home or abroad, by sea or land. It is therefore the custom of nations for the Political Department of a foreign State to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent i-ights prematurely, or in a contest with which it has no com- plexity, it is a gratuitous and unfriendly act. If the parent Government complain of it, the complaint must be made upon one of these grounds. To decide 676 FIEST PLATFOEM whether the recognition was uncalled for or premature, requires something more than a consideration of proxi- mate facts, and the overt and formal acts of the con- tending parties. The foreign State is bound and en- titled to consider the preceding history of the parties, the magnitude and completeness of the political and military organizations and preparations on each side, the probable extent of the conflict by sea and land, the probable extent and rapidity of its development, and, above all, the probability that its own merchant- vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foriegn State may protect itself by a seasonable decision, either upon a test case that arises, or by a general prospective deci- sion ; while, on the other hand, if it makes the recog- nition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent Sate. The recogni- tion of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against every thing but neutrality laws ; their flag and com- missions are acknowledged, their revenue laws are respected, and they acquire a quasi political recogni- tion. On the other hand, the parent Government is relieved from responsibility for acts done in the insur- gents' territory ; its blockade of its own ports is OE INTERNATIONAL LAW. 677 respected ; and it acquires a right to exert against neutral commerce all the powers of a party to a mari- time war "*. 639. The question of when it is proper for foreign Greater diffi- States to recognize the independence of a new Sove- queftion when reign State, which comes into existence by the disrup- denc^ofaNew tion of an old Sovereign State, is of a much graver brrecogn^zed. character. To acknowledge a status of belligerency is merely to acknowledge a fact f. But a great ad- vance must be made, in order to recognize as sole Sovereign over itself de jure as well as de facto a community whose previous condition has been that of dependency, or connexion, or of partial amalgamation. To take this last step is to create by cooptation a new member of the family of civilized States ; and to decree the curtailment of the dominion of the old Power, from which the new one has torn itself away % . * See suprcl, p. 105, et seq. on Wheaton, cited in Abdy's and notes, as to the recognition Kent, p. 105 of a Revolutionary Government J It seems hardly necessary and the general principle that to premise that what is written International Law recognizes and cited in the text as to Re- aU rulers de facto, with the cognition, applies only to oases qualification that no moral ap- where the old State refuses to probation of the means, where- recognize the independence of by their rule has been acquired, the New. "Where such consent is implied by such recognition, is given, there is no possible See note at p. 107, as to the difficulty as to the conduct eagerness with which reeogui- which foreign States are free tion is always sought by the to follow. But it has been new party, and as anxiously thought proper by very high deprecated by the old autho- authorities to point out the j,j^jeg_ different meanings which may + See Mr. Lawrence's note be attached to the word recog- 678 FIEST PLATFOEM Sound rules on this subjeot laid down in the discussions by British statesmen as to recognizing the new South- American States fifty years ago, and lately as to recognizing the Seceding States during the oiTil war in America. 640. This naturally difficult subject has been to a very great degree elucidated, and sound practical as well as theoretical rules respecting it may be con- sidered to have been established by English statesmen, on two great occasions during the present century. The first of these was the discussion in the English Parliament of the propriety of recognizing the Inde- pendence of the late Spanish colonies in Southern and Central America ; the second occurred when a desire was expressed by some of our political writers and speakers of the time to recognize as independent the Confederate Southern States during the late civil war in America. It is especially in the speeches of Sir nition ; and I therefore quote (from Sir E. Phillimore's 2nd volume, p. 16) the follow pas- sage in Mr. Canning's speech as to England's recognition of the late Spanish colonies as Independent States •. — " It is perfectly true, as has been mentioned, that the term ' re- cognition ' has been much abused ; and, unfortunately, that abuse has, perhaps, been supported by some authority: it has clearly two senses, in which it is to be differently understood. If the colonies say to the mother country, 'We assert our independence,' and the mother country answers, ' I admit it,' that is recogni- tion in one sense. If the colo- nies say to another State, ' We are independent,' and that other State replies, ' I allow that you are so,' that is je- cognition in. another sense of the term. That other State simply acknowledges the fact, or rather its opinion of the fact ; but she confers nothing, unless, under particular circumstances, she may be considered as con- ferring a favour. Therefore it is one question whether the recognition of the indepen- dence of the colonies shall take place, Spain being a party to such recognition, and another question whether, Spain with- holding what no power on earth can necessarily extort, by fire, sword, or conquest, if she maintain silence without a positive refusal, other countries should acknowledge that inde- pendence." OF INTEENATIONAL LAW. 679 James Mackintosh and Lord Lansdown on the first of these occasions, and in the speeches and of the Earl of Derby on the second, that stores of sound international jurisprudence on this matter may be found. Dr. Abdy's edition of Kent's Commentaries, Sir William Harcourt's letters under the title of " His- toricus," and Sir Robert Phillimore's treatise on Inter- national Law add clear and copious arguments in support of them. The last-mentioned writer thus sums up the result of the discussions. " Speaking generally, two facts should concur before this grave step [that of recognizing the new State against the wish of the old State be taken] : — " 1. The practical cessation of hostilities on the part Requisites for the propriety of the old State, which may long precede the theore- of recognitiori. tical renunciation of her rights over the revolted member of her former dominion. " 2. There should occur the consolidation of the new State, so far at least as to be in a condition of main- taining international relations with other countries, an absolute bond fide possession of independence as a separate kingdom, not the enjoyment of perfect and undisturbed internal tranquillity — a test too severe for many of the oldest kingdoms. But there should be the existence of a Government, acknowledged by the people over whom it is set, and ready and able to prove its responsibility for their conduct when they come in contact with other nations "*. 64 1. Sir William Harcourt has ably pointed out the Principles cu principle which is the foundation of the first of these rules are " ^ founded, * 2 Phillimore, p. 19. 680 FIRST PLATFOEM canons, of the rule which mainly secures the payment of due regard by foreign nations to the just rights of old Sovereign States in cases of civil dissension. Sir The prema- William says, " The general principle which under- ture reoogni- , o i i tionoftho lies and forms the substratum of the whole discussion new State is a . i i • violation of IS the lundamental doctrine oi the respect exacted by reign State's International Law for the independence of Sovereign psndence, States. Each State is bound in its international rela- rights ot Secu- tious to obscrve and respect the sovereignty, however sh^, al™'^' symbolized, of every other State. Sovereignty, by the Empire. ^^^^ definition of the term, implies a right to the obedience of subjects, whether the Sovereign be a despot, a monarch, or a republic. As long as persons once owning the relation of subjects to a Sovereign State are still capable of being regarded in any sense as such subjects, to deal with them upon an indepen- dent footing is a hostile act towards that Sovereign, which, according to the principles of International Law, may be justly resented. On the other hand, if persons who once owned the relation of subjects have been able, either by force of arms or otherwise, to divest themselves, in a final and permanent mannei-j of the status of subjects, then diplomatic transactions with such persons afford no justifiable ground of ofli'ence to their former Sovereign, nor can they be regarded as a breach of neutrality or friendship "*. It may be added, that to treat prematurely any portion of the territory or of the population of an old State as no longer appertaining to its former Sove- * Letters of Historicus, p. by President Woolsey, 'Inter- 2. See tte remarks on them national Law,' p. 435. OF INTERNATIONAL LAW. 681 reign is to violate not only the old Sovereign State's right to independence, but other primary rights also, w^hich have been described in a preceding chapter of this treatise. Such are the old State's right to secu- rity, right of ownership, and right of empire*. 642. The second condition precedent, mentioned Requisite for * _ fitness of new by Sir K,. Phillimore for a new State's title to recog- state for com- ... . . . j)lete recogni- nition by foreign Powers, is the possession of it by a tion— Settled T T ro ■ 1 p 1 1> Government, reasonably effective and permanent system ot self- government. This is a matter as to which a foreign State has to consider, not so much its special duties towards the old Sovereign State, as its duties towards the Commonwealth of civilized nations in general. It has been pointed out in an early portion of this vohimef, that a State, in order to be entitled to take its place in the great family of Sovereign poHtical societies, must not only be free from government from without, but that it must govern itself. The sense and necessity of this rule are too obvious to require any comment. 643. Finally, it is to be observed, that the recogni- Oniy the Sove- tion of a new State by a foreign State can be effec- TfOTei^^state tively made by the Sovereign authority only in the recogniztT^ foreign State ; and until such recognition by the Go- "^^ * ' vernment takes place, private individuals, executive officers, and courts of justice in the foreign State are bound to act and to decide as if the ancient relations between the now dissevered portions of the old State remained unimpeached and binding J. * See supra, p. 148 et seq. t See mprd, p. 97. t 2 PhiU. p. 25; Abdj's Kent, p. 87; Halleck, p. 75. 2y 683 EPILEGOMENA. No. I. On the Privileges of Public Ships in Foreign Ports, and ON SHELTERING FUGITIVE SlaVES. Since the parts of this work which treat of the subjects of Exterri- toriality and Slavery passed through the press, some very impor- tant State Papers regarding those topics have been issued by the British Government ; and opinions on them have been ofiBcially delivered by Royal Commissioners of very high eminence as statesmen, judges, and jurists. I refer to the Admiralty Circular Orders as to the reception of fugitive slaves, which were published on the respective dates of July 31, 1875, December 5, 1875, and August 10, 1876*. I refer also to the Report of the Commissioners * As tlie last-mentioned of these is now in force to tlie supersession of all previous instructions, I copy here its operative clauses : — "1. In any case in which you have received a fugitive slave into your ship and taken him under the protection of the British flag, whether within or beyond the territorial waters of any State, you will not admit or entertain any demand made upon you for his surrender on the ground of slavery. " 2. It is not intended, nor is it possible, to lay down any precise or general rule as to the cases in which you ought to receive a fugitive slave on board your ship. You are, as to this, to be guided by considerations of humanity ; and these considerations must have full effect given to them, whether your ship is on the high seas or within the temtorial waters of a State in which slavery exists ; but in the latter case you ought, at the same time, to avoid conduct which may appear to be in breach of international comity and good faith. "3. If any person within territorial waters claims your protection on the ground that he is kept in slavery contrary to treaties with Great Britain, you should receive him until the truth of his statement is examined into. This ex- amination should be made, if possible, after communication with the nearest British consular authority ; and you should be guided in your subsequent pro- ceedings by the result." 2y2 684 EPILEGOMENA. (dated May 30, 1876), and to the documents accompanying it in the Parliamentary Blue Book, especially to the statements of opinion by Sir R. Phillimore, Mr. M. Bernard, and Sir H. S. Maine, and the Memoranda by the Lord Chief Justice, by Mr. Fitz- James Stephen, and Mr. H. C. Rothery. The minutes of the evidence taken before the Commission are very interesting and valuable, especially as regards the evidence of Sir Bartle Frere and Lieut. Cameron. The same may be said of many of the papers now published in the Appendix, particularly of "the reports from her Britannic Majesty's representatives abroad as to the law and prac- tice of foreign countries with reference to fugitive slaves, and as to the states of slavery in countries still holding"slaves "*. While I feel that it is my duty both towards my readers and myself to make some comments on these publications, I consider that it is not obligatory on me (and that it would therefore be indecorous) to enter into systematic and detailed criticisms. The special portions, which require observation here, are the doctrines which some of the eminent members of the Royal Commission have advanced as to the liability of ships of war when lying in foreign ports to be treated as entirely subject to the jurisdiction of the local authorities in all matters, excepting those immediately connected with the discipline of the crews. According to the opinions now propounded, the processes of the local tribunals may be executed on board of a British man-of-war in foreign territo- rial waters ; persons who are on board of her may be forcibly dragged thence by the local officials ; the will and the authority of the officer in command of Her Majesty^s ship are to be no more re- garded than would be the wishes and remonstrances of the master of a collier, or of the patron of a Levantine fishing-smack. These pro- positions, to say the least of them, are much at variance with what has hitherto been generally believed to be law on this subject ; but the high names, which are attached to the avowal of them, require for them respectful consideration, notwithstanding their seemingly paradoxical character. I propose, therefore, to make here some observations in addition to what has been written in the eighth chapter of this bookf, on * I also wish to refer to a very valuable paper in the last Februaiy number of tbe ' Law B,eview,' by Sir Travers Twiss, on " Tbe Exterritoriality of Public Ships of War in Foreign Waters." t Supr^, pp. 76-195. EPILEGOMENA. 685 the privileges of exemption from the jurisdiction of local authori- ties, which by the custom and law of nations are accorded to the public ships of a Sovereign State when lying in the ports or other territorial waters of a foreign State. I shall proceed to make some comments on England's duties, legal and moral, as to fugitive slaves who obtain refuge on board of our ships of war in such localities; and on the best interpretation of the late Admiralty Circular to Her Majesty's naval officers in command of such vessels. It will be convenient to state at once the two opposite doctrines as to the jurisdiction to which ships of war are ameng,ble. I will give the doctrine, which limits most of their privileges, in the very words of the member of the Commission who has expounded and maintained that doctrine in a very elaborate and learned paper annexed to the Report*. He sums up his arguments as follows : — " It appears to me, first, that whether ' by comity of nations,' or on the principle of ' implied assent,' or by whatever other name we are pleased to call it, a ship of vvar, its officers, crew, and all belonging to it, are, when they are within foreign territorial waters, exempt from the local jurisdiction in all matters relating to the management and discipline of the ship, and the relation of the officers and crew to one another, but that this exception goes no further -"f. The other doctrine, and that which I venture to consider the true one, may be, I think, best summarized in the following, or some equivalent manner : — By the usage of nations the public ships of Sovereign States do not, like private vessels, on entering the territorial waters of a foreign State become subject while there to the jurisdiction of the local laws and officials : no person except a duly authorized agent of the State to which a public ship belongs has a right to enter a public ship, or to execute any process, or to exercise any force or authority on board of her, unless by permission of her commander, * See in Blue Book, pp. Ixii-lxxxv, « An examination of tlie authorities cited by 'Historicus,' as to the exemption of a ship of war from the local jurisdiction when she is in foreign territorial waters; with an inquiry into the nature and extent of that exception. By Mr. H. C. Rothery," &c. t Blue Book, p. Ixxxv. The italics are mine. 686 EPILEGOMEJSTA. who is responsible to Ms own sovereign^ and not to any foreign power for the orders given there*. I have avoided the use of the term " Exterritoriality/' which is very commonly employed to denote the status of a war-ship in a foreign port. It is a mere metaphor^ convenient in some respects for popular talk on account of its expressive quaiatness^ but ex- tremely inconvenient for accurate and rigid argumentation, on account of its exaggeration and looseness. I thoroughly concur with Sir William Harcourt in deprecating the use of metaphors in legal reasoning. He has pointed out the mischief caused by the intro- duction and abuse of the word " territoriality " with regard to merchant-vessels, and the " vicious and false analogy " by which that metaphor has been by some writers made an instrument for " converting the neutral vessel into an integral portion of the neutral territory "f- The metaphor of " Exterritoriality," as ap- plied to the war-ship in foreign waters, is capable of being equally perverted. Its fair meaning is, that such a war-ship, by the usage of nations, is as fully exempt from the jurisdiction of the local * In the " Statement of Opinion on the Question of International Obliga- tions," by Sir R. PJaillimore, Mr. M. Bernard, and Sir H. S. Maine," which is annexed to the Report (Blue Book, p . xxxviii) , the matter is thus summed up : — " As between State and State, the right which every naval commander in foreign waters has hitherto believed himself to possess of saying, ' My ship is the castle of my sovereign under my command; no one enters it, and no force can be exerted in it, miless by my permission ; and for the orders I give here I am not amenable to any foreign jurisdiction,' appears to us to be sustained by usage and opinion, and, we may add, by convenience. The privilege of the ship is the privilege of the Power whose flag she displays, and in whose service she is" employed." I should have adoped these words textually, if I had not wished to avoid all usage of metaphorical language. The term "my sovereign's castle," though its real meaning seems obvious enough, might be represented as implying preten- sions to absolute and exclusive territoriality, like the pretensions imputed to those who have called the war-ship in foreign waters " exterritorial." t See ' Letters by Historicus,' p. 201. Sir G. Cornewall Lewis, in his work on the Extradition of Criminals (p. 10), shows a similar -laudable caution in " dropping all metaphor." The nuisance of metaphorical writing on forensic subjects must have been felt by all students of the great publicists of the Roman-Dutch school. The benefit to be derived from the sound principles and profound erudition of those jurists is continually clogged and impaired by their unfortunate fondness for poetical metaphors and recondite phrases. EPILEaOMENA. 687 authorities aa she would have been if actually out of their territory. When so understood the metaphor is correct enough ; but when it is strained into an implication that the war-ship, though in foreign territorial waters, is to be regarded absolutely and exclusively as a material part of the land of its own sovereign, consequences are deducible from such a meaning which may well be denounced as monstrous, and as self-evident absurdities. It is on hypotheses framed on the metaphor thus exaggerated and overworked, that many of the seemingly weightiest arguments are based, which have been employed during the recent discussion by those who would narrow down the privileges of the war-ship to no more than France claims for her merchant-vessels in foreign ports. They put imaginary cases of residents within the State, in the port of which the foreign public ship is lying, committing murders on board of the ship, or escaping on board of her after murdering some one on shore j and they ask if it is not unreasonable to hold that such murderers could not be tried and punished by the courts of their own sovereign ; which would be the result (saving the operation of special statutes) of holding that the foreign war-ship is for all purposes part of the exclusive territory of her own State, inasmuch as by general principle crimes are regarded as local, and cognizable and punish- able exclusively in the country where they are committed*. But when the matter is regarded not as a case of "^exterritoriality" in the more than literal sense of the word, but as a case of privilege, all these difficulties, that have been raised against the fuU allow- ance of the immunities hitherto generally supposed to belong to war-ships, vanish at once out of existence. Privilege may always be waived by the person for whose benefit it was introduced : " Unusquisque potest renuntiare juri pro se nato " — a maxim quoted by the Lord Chief Justice in his judgment in the Geneva Arbitration as to a State waiving the enforcement of some of its most important rights with regard to other Statesf. We are not bound to suppose that the commander of a British man-of-war would refuse his sanction to the local authorities dealing with the long-shore murderer, who was found red-handed, or with the long- shore thief who was found hond-habend and back-barend on * Several of tlie leading authorities are referred to by Sir G. C. Lewis at p. 7 of his Treatise on Extradition, t Blue Book, North America, No. 2 (1873), p. 154. 688 EPILEGOMENA board of the ship in their harbour. If he were to do so, it is not to be assumed that his conduct would be sanctioned by his sove- reign. And, if we must suppose both these improbabilites to occur, the State, within whose territory the crime had been committed, would be entitled to forbid our public ships to enter its territorial waters until reparation had been made for the gross moral wrong of which our Government would have been guilty. I liave already quoted the words of Sir Robert Phillimore, Mr. M ountague Bernard, and Sir Henry Maine, which declare that, as to immunity from local jurisdiction, "the privilege of the ship is the privilege of the Power whose flag she displays and in whose service she is employed."' This mode of viewing the matter gets rid also of other supposed cases of embarrassment which have been suggested. Thus it has been asked whether a fugitive can sue the captain, who has sanc- tioned his being taken away from a British ship of war. The answer is obvious, that the Naval officer, acting in behalf of his sovereign, to whom alone he is responsible, has merely declined to enforce that sovereign's exclusive privilege. There are two broad facts which it seems impossible to reconcile with the theory that the privileges of a man-of-war in foreign waters as to jurisdiction extend to nothing beyond "matters rela- ting to the management and discipline of the ship, and the relation of the officers and crew to one another." The first of these is the fact that the commanders of such vessels are not bound to deliver up political refugees, who have obtained access to their ships, how- ever clear it may be that such refugees have committed acts which are criminal offences according to the local law, and however vehemently the local authorities may seek to enforce the law of the land against them. Certainly an exception may be found here and there in the writings of modern jurists to the recognition of the general principle that political refugees are not to be surren- dered*; but the infinite preponderance of authority is in favour of it. The most eminent of the members of this Royal Commission who support the supremacy of the local law admits that "a general * Professor MoU is referred to by Sir G. Oornewall Lewis (p. 47) as denying that this doctrine is positive European International Law. But Sir Oornewall adds his own far more weighty opinion, that " it is a principle which the Govern- ments ot States sufficiently powerful to defy dictation have acted and will con- EPILEGOMBNA. 689 understauding prevaUs that political refugees should not be given up It they can succeed in taking refuge on board a ship of war of another nation,- words to which can be added the passage of the Keport of the Commission itself, that "the obligation of Interna- tional Law may be held to be the result of the common under- standmg of nations as evidenced by their practice"*. I believe that the language of Lord Palmerston was not more eloquent than true, when, m his State-paper respecting the Hungarian refugees m 1851, he averred that, "If there is one rule which more than another has been observed in modern times by all independent States, both great and small, of the civilized world, it is the rule not to deliver up political refugees, unless the State is bound to do so by the positive stipulations of a treaty; and her Majesty's Govern- ment believe that such treaty engagements are few, if indeed any such exist. The laws of hospitality, the dictates of humanity, the general feelings of mankind, forbid such surrenders ; and any inde- pendent Government, which of its own free will were to make such a surrender, would be deservedly and universally stigmatized as degraded and dishonoured^f. No distinction is made as to the protection to be given to those who reach British land and those who reach a British man-of-war. As is observed in the memorandum by Sir R. Phillimore, Mr. M. Bernard, and Sir H. S. Maine, "That there is no unqualified ob- ligation to assist or permit on board a ship of war the enforcement of the local law is assumed in the instructions which British naval officers receive with regard to political refugees, and has been as- sumed in the cases where, before the issue of those instructions, the refusal to give up a refugee has been approved by the British Governmental. * The second broad fact to which I refer as seemingly conclusive against the theory that every kind of authority of the local law may be exercised, and every kind of process of the local courts may be executed, on board of a foreign ship against the commander's will, tinue to act upon, not only in all cases where their political and religious sympa- thies ai'e concerned, but even upon the principles of general humanity." The principle is treated as established International Law by Wheaton, ' Ele- ments,' part ii. chap. 2. § 13. page 140 ; by Hefiifcer, page ISO ; by Blimtschli, page 232, § 396 ; by Woolsey, page 129, § 79. * Page vii. t Oited by Sir G. 0. Lewis, p. 47. t Page xxv. 690 EPILEGOMENA. except in matters of internal naval discipline^ is tlie fact that no such, act of local authority has ever been performed. Sir R. Phil- limore, Mr. M. Bernard^ and Sir Henry Maine attest this strong negative fact ; and they openly appeal to it as part of the founda- tion of their important opinion on the question of International obligation. They say, with special reference to the last half cen- turyj " we do not know of an instance within this period in which a right has been conceded or asserted to take a person or thing from on board a ship of war by legal process without leave of the of&cer in command, or to hold the officer, or any of those under his command, personally amenable to the local jurisdiction for acts done on board in contravention of a local law. Nor are we aware that this state of things has produced any practical inconvenience"*. All that can be fairly brought forward on the other side, consists of extracts from the treatises of three Jurists (Lampredi, Azuni, and Pinheiro Fernando) , and of two State-papers of very dissimilar im- portance. One is an opinion delivered by the American Attorney- Grenera], Mr. Bradford, in 1794, to his Government, that a Habeas Corpus might be issued by the local court, and served on board an English ship in a harbour of the United States ; the other is an opinion of Lord StoweU (then Sir William Scott), given in 1820 in answer to a minute by Lord Melville (then First Lord of the Ad- miralty). I pass over Mr. Bradford's opinion, which was never acted on, and in which he admits that such a usage of the writ of Habeas Corpus would be unprecedented. But every dictum of Lord Stowell's, though extra-judicial, deserves respectful conside- ration. It appears that in 1819 an Englishman, John Brown, who had commanded a vessel of the insurgent colonists, was a prisoner at Lima, in a Spanish colony. He escaped to the 'Tyne,' a British ship of war, then lying in the harbour. The Spanish authorities required his surrender; but the English captain refused to give him up. He was brought to England in the 'Tyne; ' and the Lords of the Admiralty, after taking the opinion of the king's advocate, permitted him to depart without restraint. Lord StoweU says as to that permission, "If my opinion had been required I would have * Page xxvii. The case of the ' Nautilus,' set out by Mr. Rothery (p. Ixxii of Blue Book), is no exception. The written consent of Captain Baynton, the commander of the British ship, was obtained by the American deputation, who went on board of her to make inquiries. EPILEGOMENA. 691 coincided with what has been advised and done." These are impor- tant words, because, if the Spanish authorities had clearly the legal right to enforce their laws against Brown on board the ' Tyne/ the captain of that ship committed a wrong in opposing their will, and the British Government ought to have redressed that wrong by giving Brown up to the Spanish Government. Lord Stowell pro- ceeds as follows : — " A more extensive and important question is proposed to me, viz. whether any British subject coming on board His Majesty's ships of war in a foreign port, escaping from civil or criminal process in such port, and from the jurisdiction of the State within whose territory such port may be situated, is entitled to the protection of the British flag, and to be deemed as within the kingdom of Great Britain and Ireland. Upon this question, proposed generally, I feel no hesitation in declaring that I know of no such right of protection belonging to the British flag, and that I think such a pretension is unfounded in point of principle, is injurious to the rights of other countries, and is inconsistent with those of our own." It will be observed that the doctrine which Lord Stowell thus controverts, is the doctrine of " exterritoriality" in the exaggerated and erroneous form which I have spoken of in the early part of this note. He denies that the fugitive has any privilege in the matter ; and, as has been explained, the privilege is that of the Sovereign only to whom the war-ship belongs. Unquestionably there are expressions in Lord StowelVs opinion which go much further. He says that Brown's case may have been an exceptional one ; but he certainly states that, considering Brown to have acted unlawfully in serving with rebels against a power in amity with Great Britain, " I am led to think that the Spaniards would not have been chargeable with illegal violence if they had thought proper to employ force in taking this person out of the British vessel." On this we may remark that Lord Stowell wrote these words in 1820 : but International Law has made great progress during the last half century, especially as to political refugees ; and John Brown appears to have been a political ofl^ender only against Spanish law, even if he could be considered to be a criminal of any kind*. No English captain would now refuse shelter to * TMs is now abundantly proved by tbe additional papers on the subject contained in the lately pubUshed Appendix to the Report, p. 224 092 EPILEGOMENA. such a suppliant ; no English minister and no English court would now hold that such shelter ought to have been denied*. So far as regards the immensely preponderating opinions of publicists in favour of the amplest extent of the privileges of ships of war^ T refer here to what has been written in the textf. The copious list of authorities there given was taken from the judgment delivered in the Geneva Arbitration by the Lord Chief Justice J. A full list is also given in a note to the statement of opinion on International Law by Sir R. Phillimore, Mr. M. Bernard^ and Sir H. S. Maine, which has been so often referred to. Those eminent jurists say of the immunity of ships of war that " A long succession of writers, English, French, German, and American, referring to this immunity as established by usage and general consent, have described it as an exemption from the 'law,^ the 'jurisdiction,^ or the 'law and jurisdiction'' of the foreign State, or by other equivalent phrases — language which, though leaving somewhat to argument and inference, has nevertheless a plain and natiu'al meaning "§. An attempt is now made to pare down the authority of the full and expressive language in which Wheaton has stated the war-ship's * The passages cited by Mr. Eothery from Baron de Oussy and BluntscUi (Blue Book, p. Ixxvii) appear to me not to toucli the point. Sir R. Philli- more's opinion is clearly shown by his statement in the proceedings of this very Commission. t Chapter viii. page 177 et aeqq. X Blue Book, North America, No. 2 (1873), page 149 et seq. See also same Blue Book, page 219, for the observations of the Lord Chief Justice on the refusal of Captain Waddell, of the Confederate cruiser ' The Shenandoah,' to allow a warrant issued by a, local magistrate to be executed on board of his ship in Melbourne Harbour. The Lord Chief Justice's comment is as follows : — ■ " The position taken by Captain "Waddell, that a ship of war of another nation is not subject to local jurisdiction, is undoubtedly true. Upon a rec^uest of Sir 0. Darling to be informed as to the propriety of executing a warrant under the Foreign Enlistment Act on board a Confederate ship of war, the Law Officers of the Crown, on being consulted, advised as follows : — "'It appears to us that, in the circumstances stated, his Excellency the Governor acted with propriety and discretion ; and there does not appear to us at present to be a necessity for any action on the part of Her Majesty's Govern- ment. " ' With respect to his Excellency's request that he may receive instructions as to the propriety of executing any warrant under the Foreign Enlistment Act on board a Confederate (public) ship of war, we are of opinion that, in a case of EPILEGOMENA. 693 privileges, of that in whieli they were declared by C. J. Marshall in the case of the ' Exchange/ and of that in which they were formu- lated by the American Government in the State-papers issued in con- sequence of the ' Sitka ' case in 1854. It is said that these general propositions are to be applied to cases solely in which the facts are exactly analogous with the subjecta materies which moved Wheaton to write, or that which induced the ruling statesmen and legal ofiacers of the United States to declare their opinions. No doubt when we are considering how far the judgment of a municipal Court is con- clusive on an inferior Court, and nearly conclusive on a coordinate Court of the same State, this narrowing down of the broad lan- guage of a judgment to the strictly subjecta materies may be very necessary ; but this is not the case in measuring the degree of respect with which enunciations of principles are to be received by those who are under no arbitrary tie of submission to them, but who weigh them according to the intellectual dignity and official or professional eminence of their promulgators. It may be safely left to any unprejudiced person to read the passage referred to in Wheaton, and to read the judgment in the ' Exchange ' case, and the Sitka Manifesto*, and then to say whether these were not strong suspicion, lie ought to request the permission of the Commander of the ship to execute the warrant ; and that, if this request he refused, he ought not to attempt to enforce the execution : hut that in this case the Commander should be desired to leave the port as speedily as possible, and should be informed that he will not be re-admitted into it.' " There can be no doubt as to the soundness of this advice. While a ship of war is thus exempt from local jurisdiction, the right of the local authority to withhold the accommodation of the port is equally undoubted ; and the exer- cise of this power, applied here in th« first instance, might no doubt have been prolonged." * It is set out by Wheaton and others, and will be found at full length in Sir Travers Twiss, p. 453. He says of the propositions declared in it, that they " accord with the practice of the European powers." See particularly proposi- tion 5. It is not immaterial to observe that, in the argument as to the Alabama claims &e. at Geneva, the American advocates (whose interest it was to narrow down the privileges of war-ships as far as possible) treated the full immunity of public ships in a foreign harbour from all local process as notorious and unquestionable. See passim, "The argument at Geneva," a collection of the Forensic discussions before the tribunal of Arbitration, published by authority of the United States Government. For special example I will refer to the very able and singularly temperate " Supplemental Argument of Mr. Evarts." It contains these words : — 694 EPILEGOMENA. designed to be (what they certainly have been commonly considered to be) full expositions of International Law on the whole subject of a war-ship's privileges. A case which occurred so lately as 1867 in Paris respecting the immunities of a foreign ambassador's house^ and which is reported by M. Calvo^ has been cited as proving by analogy that a foreign war-ship is not exempt from local criminal process. With all due deference I must say that it does not appear to me to furnish any such proof, but that it favours very much the doctrine which I have endeavoured to advocate — the doctrine of full privilege from local process — that privilege, however, being the privilege of the foreign Sovereign, and not of the fugitive. In that case a Russian obtained entrance to the Russian ambassador's house in Paris, and while there stabbed three persons. The ambassador was absent; but his chief secretary, who was present, called in the French police, and the offender was taken into custody by them, and proceeded against according to French law. While the process was pending, the Russian ambassador protested against its continuance, and demanded that the culprit should be given up to him. The French authorities refused to do this, and alleged as a reason for their refusal the fact that the Russian embassy had waived their privi- lege by calling in the local authorities. The Russian Government finally admitted the competence of the French tribunal, and the offender was tried, sentenced, and punished by French law*. " The public ship of a nation, received into the waters or ports of another nation, is, hy the practice of nations, as a concession to the sovereign's dignity, exempt from the jmisdiction of the courts, and all judicial process of the nation whose waters it visits " (" The Argument at Geneva," page 451). * The principle that the immunity of an ambassador's house and of a foreign war-ship from local process is a matter of privilege, and not a metamorphosis of the house or vessel into actual part and parcel of a distant land, is strengthened by what M. Oalvo has written as to the probable origin of the privilege as to ambassadors : — " Le principe qui en forme la base 6tait d^ja, sous plusieurs rap- ports, reconnu dans I'antiquit^. Chez les Romains, la loi aocordait auix dSputSs de certaines provinces et de certaines villes le droit connu sous le nora de 'jros domum revocatidi,' c'est-a-dire le droit de riScuser pendant leur sSjour a Rome la competence des tribimaux, tant en matiere civile qu'en matiere p^nale, pour dettes ou pour dSlits ant^rieurs. " Le mot dLexterritorialite est ame expression toute modeme, qui ne se trouve pas dans les anciens auteurs" (tome i. p. 648). These privileges of the provin- cial leffati are spoken of in the Digest, L. 5, c. 1. sec. 2. EPILEGOMENA. 695 But, after all, the main, the irresistible fact, which bars the establishment of the new doctrine that the process of local courts can be made to operate in invitum on board of foreign war-ships in the local harbours, is the fact that it never has been done. I have already cited the words of the Keport of this Commission, which state that " the obligations of International Law may be held to be the result of the common understanding of nations as evidenced by their practice ;" and this argument from practice applies nega- tively as well as aflSrmatively. It cannot be said that this is a thing which never has been done because no one has ever wished to do it. There must have been innumerable instances, in which the animosity of people against people, the desire of humiliating a haughty rival and of establishing a national reputation for strength and energy, the bickerings of persons in authority, the arrogance of naval officers, the pretentious pomposity of local magistrates, and the cupidity of local traders would have caused such process to be executed, if it had not been generally known and acknowledged to be unlawful. It never has been done; and we may safely believe that it never will be. We will therefore consider it to be clear that where a fugitive slave is received on board a British man-of-war withiu the terri- torial waters of a State, the law of which sanctions slavery, there is -no positive law by which the commanding officer is bound to give him up. Is there any moral obligation on the war-ship's commander to do so ? In other words, does the position of the fugitive slave most resemble that of the political refugee, whom it would be ineffably base to surrender ? or does it most resemble that of the foul murderer, or the heinous robber, who has by some means obtained access to the British war-ship, but as to whom no • right-minded man in command of such a ship would insist on national privileges so as to bar the course of justice ? It is needless to frame a formal answer to such a question, or to accumulate words in order to intensify the abhorrence with which slavery and all things connected with it are now regarded by civilized mankind. The Circular Instructions as to fugitive slaves last issued by the British Government (which supersede all others) appear fdly to recognize the principle that the fugitive is not to be surrendered in deference to any local law about slavery. The first clause lays 69G EPILEGOMENA. down the general rule to be followed by our naval officers in these emphatic words : — " In any case, in which you have received a fugi- tive slave into your ship^ and taken him under the protection of the British flag, whether within or beyond the territorial waters of any State, you wiU not admit or entertain any demand made upon you for his surrender on the ground of slavery "*. I do not think that this is limited by the instructions in paragraph 3, as to how naval officers should act as to receiving slaves, or that the word " receive " in the first paragraph is to be enervated by requiring that it shall be powerless where there has been no animus recipiendi. The word in the first paragraph is (I be- lieve) to be taken in its broad natural sense, denoting the fact of receipt, without reference to the volition of the receiver, just as it does in the common phrase, that a man has received an injuryf. The caution in the latter part of the instructions may properly be understood as directing our naval ofBcers to avoid the commis- sion of any act towards creating a breach of the local law : this is a widely different matter from refusing to act in enforcement of the local law. This is the spirit of Sir George Campbeirs admirable reasons for the opinion given by him separately as one of the Royal Com- missioners on the Fugitive Slave question : — " The time has come when this country may fairly say we will under no circumstances aid in the enforcement of slaveryj we will have nothing to do with this nefarious and accursed thing''' J. Let it always be remembered that the institution of slavery is contrary to the first principles of general public law, as taught by, the greatest founders and expounders of jurisprudence. I refer to the maxims of the great masters of the Golden Age of Roman Law, that slavery is contrary to Natural Law ; that by Natural ' * The " taWng vmder the protection of the British flag " is a consequence of the "receiving." t If necessary, we can call in aid here the great jural maxims as to the inter- pretation of ambiguous phrases : " Semper in dubiis benigniora prseferenda sunt " (Gaius apud Dig. iv. 17, 66) ; " Quoties dubia interpretatio libertatis est, secun- dum libertatem respondendum erit " (Pomponius, ibid. sect. 20); "Liberlas insestimabilis res est " (Paulus, ibid. sect. 106) ; " Libertas omnibus rebus favorabilior est " (Gaius, ibid. sect. 122). t Blue Book, p. xix. EPILEGOMENA. 697 Law all men are free and equal, but that slavery was introduced as a general institution by the practice of nations*. Slavery existed for the reason given by Grotius for the temporary existence of much International Law, " quia placuit ffentibus"f. But now we may say with honest pride that " displicet gentibus." We may not be justified in using penal or coercive measures towards the miserable minority that yet adhere to it ; but we are fully justified in declining to be their bailiff's or accomplices. The evi dence collected by this Royal Commission shows conclusively the strong, the growing sentiments of civilized States that slavery is no longer to be upheld or enforced ; that when the slave gains access to a free country " the air makes free "%, and that the public ships of civilized nations will not give back the fugitive slave, who once has gained the shelter of the free flag, to punishment or to bondage §. There is no need to prepare new forms of reply if demands for the surrender of such fugitives should again be made. We may appeal to and may adopt the noble words of our old sea-hero, Lord St. Vincent, when the Lords of the Admiralty in 1798 forwarded to him the complaints of some foreign slave-owners, whose slaves had obtained refuge on board of British men-of-war in the port of Malta, which then was foreign territory. Lord St. Vincent told the British Admiralty, " that from the days of the renowned Blake to this hour it has been the pride and glory of the officers of His Majesty's navy to give freedom to slaves wherever they carried the British flag ; and God forbid that such a Divine maxim should fade under me" ||. * See these maxims quoted and commented on in tL,e eighth chapter, page 265, saprd,. t See page 77, suprii. X See the old French cases cited in note to page 262, supra. See in the Ap- pendix to Blue Book, pp. 108, 111, 112, 139, that France retains this maxim, and that it is avowed also by Prussia, Italy, Sweden, and Norway. § Portugal and Holland appear to be the sole exceptions. See Blue Book, p. viii, and the very valuable additional evidence now published in the Appen- dix pp. 84-143. I will quote here only the emphatic answer as to the United States : — " At present no officer in command of a United-States vessel of war would give up a slave who had taken refuge on board of his ship, unless assured that he would not return to a condition of slavery " (Blue Book, p. 143> II See " Correspondence as to complaint by Sovereign Order of Malta, that on several occasions Her Majesty's ships had given shelter to Fugitive Slaves," published in Blue Book, Appendix, p. 224. 698 EPILEGOMENA. No. II. Lord Palmerston on International Arbitration. (See page 398 of text.) Lord Palmerston in 1848^ in a letter to Lord John Russell, sug- gested an agreement between this country and the United States not to begin hostilities in any case of difference between them unless they should first have had recourse to the mediation or arbi- tration* of some friendly Power. His biographer, Mr. Ashley, adds that " as to this arbitration question, he [Lord Palmerston] would in practice have tempered theory with prudence." " In a debate in 1849 he spoke (I might almost say prophetically) of the disadvantages which England would probably have to encounter before such international tribunals. It was on the 12th of June, on a motion of Mr. Cobden's, Lord Palmerston combated vigo- rously the proposition that we should in any way pledge ourselves to submit to the arbitrament of a third party. He said : — ' I con- fess that I consider that it would be a very dangerous course for his country to take, because there is no country which from its political and commercial circumstances, from its maritime inter- ests, and from its colonial possessions, excites more anxious and jealous feelings in different quarters than England does ; and there is no country that would find it more difficult to obtain really disinterested and impartial arbitrators. There is also no country that would be more likely than England to suffer in its important commercial interests from submitting the case to arbiters not dis- interested, not impartial, and not acting with a due sense of their responsibility ' "■^. * In the original letter the words appear to liave been written sic ( mediation \ "^ \arbitration/ ' as if inviting a consideration of whicli course would be best. There is a very- important difference in such cases between "mediation" aud "arbitration:" see page 392, st^rcl. t H. E. Ashley's ' Memoirs of Lord Palmerston,' vol. i. p. 58. 699 INDEX. A. Abdy on mediation, 391. Accession of territory, 241, 248. Acquisition of property by States, 204 ; by conquest, ibid. ; by bequest, ibid, and 206 n. ; by occupancy, 207. Adams on local privileges and liabilities of foreign war-ships, 186. Admiralty British Manual, 615, 621, 625. Admiralty courts, 231, 556. Agglomerated States, 145. Agri aroifinii, 242 ; Agri limitati, ibid. AoT, the, makes free : principle of, 272, 689. Alabama claims : see Q-eneva Arbitration. Alexander VI., Pope, his Bull, 209. Allegiance, 357. Alliance, 406 ; offensive and defensive, 408 ; treaties of, how far binding, 409 ; Hmited, 410. Alliance, the Holy, 119. Allies, their international position on outbreak of war, 406. Alluvion, 244. Alteration of laws, 345 and n. Ambassadors, 166; houses of, privileges respecting, 694. America : see United States, Mexico, &c. Amos, Sheldon, on international law, 31 ; on States uniting to punish breaches of it, 46 n. Anarchy, temporary, effect of, 108, 109 n. Animus adjuvandi, and animus commer- ciandi, 594. Animus recipiendi, 696. 'Antelope,' case of the, 270. Aquillius Gallus, 267. Aquinas, St. Thomas, on " Jus," 19. Argyle, Duke of, on meaning of word " Law," 9. Aristotle's Nicomachean Ethics, value of, in jurisprudence, 29. Armed Neutrality, the, 661. Armies, mischief of permanently keeping up enormous, 379. Arnold on irregular warfare, cited by Russian delegate at Brussels Confe- rence, 489. Arbitration, boards of, 83, 394 ; repudia- tion of award, 395 ; general interna- tional, 397, 698. "AairovSos IloXe/uos, instances of : Car- thaginian war with revolted merce- naries. Sepoy rebellion, 475. Assassination in war unlawful, 440. Asylum, difference respecting, as to ships and troops, 586. Attributive justice, 30. Austin, his definition of international law, 4 ; of " sovereign," 7 n. ; on G-rotius, 32; utilitarianism, 53, 62; sanction, 68 ; independence, 95 ; civil war, 108 n. ; numbers necessary for a State, 111 ; territory, 112. Austria and Hungary, 137. Azuni cited, 583. Bacon, Lord, on " Jus '' and " Lex,'' 20, 66. Balance of power, 279, 280, 2S5. Balbus, Cicero's oration for, 90 n. Baltic Confederation, 661. Barbaresque powers, the, how far imder international law, 98 n., 131. Bays and gulfs, 132. Belligerents, 361, 481, 694: see Recog- nition. Bentham inventor of word " Interna- tional," 3 ; variations of his doctrines, 51 n. ; his utilitarian rules for inter- national law, ibid. 700 INDEX. Bequest, acquisition by, 205. Bernard, Mountague, on privileges of war- ships andfugitiveslaves,686n., 689-692. Best on expletive and attributive justice, Birks on modern utilitarianism, 51 n. ; the Intuitive Moralists, 59. Black Sea, special claims over, 241 ; treaty of 1856 respecting, 43 ; this re- pudiated by Eussia, 43. Blockade, general nature of right of, 633 ; law of, binding on semicivilized States, 132 ; actual blockades and paper block- ades, 635, 647, 639; attempts to ex- tend, by Napoleon I.'s continental system and British orders in council, 637 ; notification of, 641 ; breach of, 643; "continuous voyage" doctrine, 646 ; blockade of egress or of ingress, 651. BInntschli on personality of States, 25 n., 26 n., 105 ; internationality, 33 ; on treaties, 42; internal government, 102 n.; governments de facto, 107 n.; equaUty of States, 115; on leading powers, 118 n. ; on cession, 155 n. ; State's protection of citizens, 1 56 n. ; on ex- territoriality, 192 ; prescription, 250 n.; on servitude, 256; slavery, 260; Holy Alliance, 293 ; responsibiUty of States for their tribunals, 337 n. ; arbitration, 396 ; quarter, 447 ; prisoners of war, 454 n. ; irregular troops, 488 n. ; mar- tial law, 505 n. ; military necessity, 532 ; requisitions, ibid. Boimdary, questions of, 219. Bowyer, Sir &., on "Jus," 17 n.-19; personality of States, 24 ; the TJlpianic precepts, 38 ; xenelasia, 197 ; on flu- vial accessions, 241 ; on prescription, 251. Brussels Conference on quarter, 448 n. ; prisoners of war, 462 ; irregular com- batants, 485 ; requisitions, 492 n. ; sacking stormed towns, 566. Bundesstaat, what, 139. Burke on prescription, 253. Burlamaqui on attributive justice, 21 ; on utility, 50 n. Butler, Bishop, on conscience, 56. Bynkershoeck, 79; war rights over ene- my's persons and property, 368, 377 ; on "Medii" and "Non Hostes" in war, 571. C. Cabot, Sebastian, how authorized by Henry Vli. to occupy territory, 209. Calvo on Monroe doctrine, 123 u. ; on cession, 155 n. ; on privileges of am- bassadorial residence, 686 ; on foreign war-ships, 166 ; on conquest, 204 n. ; prescription, 252 ; war, 378 n. ; arbitra- tion, 396. Canning, Mr., on the intervention of England to protect Portugal from the intervention of Spain, 296 and n. ; his caution against " sneaking into a war," 678 ; on recognition of new States, 673, 678 n. ' Caroline,' ease of the, 390. Carthage, war of, with revolted merce- naries, 475. Catherine, Empress, champion of neu- tral maritime rights, 660. Ceremonial usages, 128. Cession, 165 n. Change of government does not affect in- ternational obligations, 104. Charles II., his donation of Prince Ru- pert's Land, 210. Chateaubriand on intervention, 289. China, policy of, towards foreigners, 198 ; how far within pale of modern inter- national law, 131. Cicero on good faith, 40 ; on the "Utile'' and the " Honestum," 54, 60 ; defini- tion of a " Populus," 98 and n. ; on public law, 90, 373 and n. ; his eulogy on Pompeius for extensive knowledge of public law, 90 n. Circular to British naval officers respect- ing fugitive slaves, 683, 695, 696. Citizens, protection of, by State, 156. Coal, supplies of, by belhgerents to neu- trals, 585 ; whether contraband, 613. Cochrane, Baillie, Mr., his motion respect- ing Declaration of Paris, 667 n. Coekburn, Lord C. J., on responsibility of States for members, 158 ; on exterri- toriality of ships of war, 177, and 687, 692; on due diligence, 323; on international obligations, 333 ; on sur- render of fugitive slaves, see Epileg. Ko. L Colonial system, 655. Colonization, 144. Combatants who are within the pale of laws of war, 176. Comity of nations, 35, 36. Commercia belli, 468. Commission, royal, on fugitive slave question, report of and proceedings : see Epileg. No. I. Composite States, 135, 141. Conflict of rights, 307 et seg. Conquest, 144. Conscience, 56, 57, 59. Consolato del mare, the, 231, 659. INDEX. 701 Consuetudinary law, 76, and see Epileir. No. I. ^ ^ Continental system, 637. Contraband, law of, 604 ; neutral States not bound to enforce it, 606; goods absolutely contraband, and goods con- ditionally contraband, 609 ; coal, 613 ; provisions, ibid. ; contraband destina- tion, 616 ; contraband despatches, 627 ; persons, 633. Contra bonos mores agreements not en- forced by law, 23 and n. Convenience and "the reason of the thing" essential elements of the law of nations, 92. Convention of St. Petersburg, 441 n. Conventional law, 76. Conventional neutrality, 575. Corpus juris, the, 39 n. ' Creole,' the, case of, 271, 391. Criminal law applicable to States, 72. Criminals, extradition of, 202. Culpa as distinguished from dolus, 315. Culpa lata, 321. Cujacius on laws of war, 372 n. Custodiam praestare, 321. Czar, title of, 126. Dana on belligerent rights at sea, 547 ; on recognition of belligerency, 671. Declaration of Paris, how made, 664 ; itfs provisions, 564 ; its conclusive validity questioned, 666; on privateering, 548, 558 ; on blockades 639 ; on enemy's goods captured on board of neutral ship, and on neutral goods captured on board of enemy's ship, 665, 666. Declaration of war, 405. Definitions, laborious and perilous, but indispensaiile, 2. De Garden on personality of States, 24. Denmark, attack on, by England in 1807, 350. Derby, Earl of, on international obliga- tions as to aufiieiency of municipal laws, 329 ; comments by, on Brussels Conference, 485. Derby, Earl of, late, on recognition of independence, 679. Dereliction of territory, 216. Descent, acquisition by, 207. Destruction of prizes at sea, 563. Destruction of property in war, when law- ful, 529, 532. Discovery, title by, 215. Diligence, due, 340. Dolus as distinguished from culpa, 315 n. Dominion, right of, 206. Dominium eminens, 204. DoneUuB on Epistle to the Eomans, 13. Duties and rights, 75. E. Edwards, Sutherland, on Prenoh garrisons being bound to stand an assault, 453 n.; treatment of French irregulars by Ger- man invaders, 487 ; pressed labour, 535; contributions and requisitions, 530. Egress, blockade of, 651. Elizabeth, Queen, her grant of heathen lands to Sir Humphrey Gilbert, 209 ; her comment on Spanish claims to the southern seas, 227 n. EUenborough, Lord, summing up in Peltier's case, 34 n. Embargo, 435. Emperor, title of, 125, 127 ; claims of, to precedence, 126. Empire, right of, 203. Empire, Holy Roman, 139. England one of the Peutarchy, 117; re- fused to join the Holy Alliance, 119 ; British Empire a composite State, 142 ; principles of, as to non-intervention, 293; her war with revolutionary France, 291 ; her revolution of 1688, 306 ; state- paper of 1753 as to reprisals, 313 ; her part in the Geneva Arbitration, 317 ; her conduct as to the Czar Peter I., 345 u. ; municipal law in the Peltier and Orsini cases, 345 n. ; as to the Greek massacre, 307; Pacifico claims, 403; Pritohard indemnity, 391 ; as to not confiscating debts on outbreak of war, 425; her doctrines as to neutral goods and ships, 658 ; joins in the Declaration of Paris, 664; not in the Brussels conference, 485. England and Hanover, how united under the Georges and William IV., 136. Epilegomena : No. I., 683 ; No. II., 698. Equality of States, 117. Equality, natural, of men, 265 n., 696. Evans's, General, Spanish Legion, nobly humane conduct of, 445 n. Evarts, his arguments as to privileges of war-ships, 693 n. Exchange of prisoners, 467. Exclusion of foreigners, 197, 198, 199. Expatriation, 368. Expediency school, older form of utilita- rianism, 52. Expletory justice, 20. Exterritoriality of war-ships, 176, 177, 184, 185, 192, 193, 194; phrase a me- taphor liable to abuse, true nature of the privilege, 686. 702 INDEX. Extradition of criminals, 202 and n. ; of political refugees and fugitive slaves, see Epilog. No. I. F. Facto, de, rulers recognized in interna- tional proceedings, 106. Federal government, 140. Federation of States, 138. Field, Dudley, his Draft International Code, 33 ; on public conscience, 58 n. ; personality of States, and continuity of their international engagements, 107 n. ; uncivilized tribes, 134 n. ; State's ac- quisitions of property, 206 ; on slavery, 261 ; prisoners of war, 454 n. ; belli- gerent rights at sea, 545. Fishery, rights of, 237. Fluvial accessions, 241. Foreign laws, how far recognized, 164. Forsyth on occupation of new territories by bands of modern adventurers, 144. France one of the Pentarchy, 117 ; Holy Alliance, 119 ; her juridical doctrines as to private ships in foreign ports, 169 ; early recognition by her courts of maxim that " The air makes free," 272, 697 ; treats neutral goods on board enemy's ships as forfeited, 662 ; afterwards adopts rule of " Free ships free goods," 662; her practice during Crimean war, 663 ; her doctrines as to notification of blockade, 642. Frederick II. of Prussia, his attempt to confiscate State debts, 425. Fugitive slaves, 271 n., and see Epileg. No. I. G. Geneva Arbitration, judgments at, on privileges of war-ships, 176-191, 692 and note ; judgments and discussions on State's responsibility for acts of citizens, on " Diligentia," " Dolus," and " Culpa,'' 158, 315, 340 ; on posi- tion of neutrals, 580, 594. Gessner, Dr., on neutrality, 583 ; on blockade, contraband and continuous voyages, and case of the ' Springbook,' 619. Gilbert, Sir Humphrey, his occupation of land in North America, 209. Gortohakoff, Prince, his state-paper on laws of war, 492 ; repudiation of Treaty of Paris, ibid, n., and 43. Greek insurrection, 300, 301 n. Greek massacre case, 307 n., 336, 403. Grote, G., on "Jus," 18; "reasoned truth," 34 ; utilitarianism, 53. Grote, Prof. John, on " Jus," 18 n. Grotius, definition from, of international law, 5; "Jus Naturale," 14; general right of repressing gross violations of international law, 44 n., 45 u.; on xenelasia, 198 ; dominium emi- nens, 204 n. ; acquisition by conquest, 205 n. ; by occupancy, 207 ; fluvial accessions, 242 ; prescription, 253 ; on right to assist lie oppressed, 297 ; self- government, 356 ; consuetudinary law, "Placuit gentibus," 77, 697; on an- cient war-rules, 497 ; foundation of his doctrines, 85 ; their enduring in- fluence, 86 ; on intervention, 433. Gousmidt on prescription, 255 ; on neg- ligence, 320, 321, n. Guerilla warfare censured by Arnold and Napier and Russian delegate at Brus- sels Conference, 489, 490 ; thought im- portant by the Duke of Wellington, 490 and n. H. Hall on rights and duties of neutrals, 573, 608 n., 633 n. Halleok, short account of, 80, n. ; on treaties, 42 ; Eoman law, 83 ; inde- pendence, 96 n. ; on changes of State's government, 104; on titles, 124; lia- bilities of agglomerated States, 145 ; responsibility of States, 161 ; foreign ships, 172 ; interference for self-preser- vation, 848 ; war, 387 ; mediation, 390; reprisals, 403; alliance, 409; on de- taining travellers as prisoners of war, 420; on rights to quarter, 443, 444 n., 450 ; on " Commercia Belli," truces, passports, &c., 468 ; on destruction of property in war, 529, (at sea) 539 ; on forbidding the sack of captured towns, 569 ; on respecting neutral ter- ritory, 583 ; as to troops taking refuge in neutral territory, 686 ; on contra- band ships, 627 ; contraband despatches, 627 ; on breach of blockade, 640 ; block- ade of egress, 651. Halliday v. Tamplin, Lord Selborne's jvidgment in, 15 n., 23 n. Hanover and England, 136. Harcourt, Sir W. (Historicus), on privi- leges of ships,' 685, 686; on recogni- tion of independence, 679. Hautefeuille, laws of war, 386 ; rights of neutrals, ibid. ; war rights over pri- vate property at sea, 541 n. Heathens, how affected by international law, 208. Heeren, Historical Manual of, 88. INDEX. 703 Heffter on right of self-defence, 150 n. ; exterritoriality, 178; xenelasia, 199; slavery, 260 ; arbitration, 396 ; con- tributions and requisitions, 533 ; duties of neutrals, 589. Hermogenianus on war as an institu- tion of the law of nations, 370. History, important source for knowledge of international law, 88 ; portions of, that are most valuable, ibid. Holy Alliance, 119, 293. " Homo mensura," Protagorean heresy, " Honeste vivere," meaning of the maxim, 38. Honostum, the, 16, 38 ; the Honestum and the true Utile inseparable, 49 ; not so the " Honestum " and the " Lici- tum," 16. Honour, State justified in going to war to maintain, 153. Honours, maritime, 129 and n. Hooker on " Law," 8, 9, 10. Hiibner on foreign laws, 164 ; his doc- trine of "Free ships free goods," 660. I. Imperfect Obligation, meaning of phrase, 15 and n., 23 n. Imperial State, what is an, 142 ; its relation towards its dependencies and towards foreign powers, ibid. Imperium, 66. Improvement, right and duty of State, 152. Inchoate title gained by discovery, 215. Indemnity, right of injured State to, 151. Independence, amount and nature of, necessary for sovereign State, 93-96 and notes ; rights to, of one State con- flicting with another State's right to security, 279, and see title " Interven- tion." Independence of new States, when to be recognized by foreign States, 677. India, ISast, present native princes of, not sovereign rulers, 94. Indian territories in North America, ac- quisition of, by civilized States, 241. Insurgents, aid to, when lawful, 298. Interest, true, of belligerent State, 364. Internal government not affected by in- ternational law, 7, 99. International, origin and meaning of the word, 3, 5. International arbitration, 377, 698_. International jurisprudence, spirit of, 58 n. International law, author's definition of, 1 ; Wheaton's definition, 1 n. ; Aus- tin's, 4 ; Grotius's, 5 ; Vattel's, 5 ; chief writers on, 78 ; its universality, 27, 129, 130 ; classification of, into Moral and Positive, 10; or Natural and Positive, 25 ; its sanction, 66, 70 ; its sources, 12, 77, 91 ; its best test, 49 (see title " Utilitarianism") ; its existence in ancient times, 89; extent to which modern international law is based on Roman law, 84 ; reasons for believing that it was much studied by the states- men and jurists of the Eoman Com- monwealth, 89, 373 ; why so little on the subject is found in the Corpus Juris, ibid. ; greatly advanced by Gro- tius and the writers of his school, 85 ; its progressive character, 31, 376, and see preface ; how pai't of English muni- cipal law, 159. Intervention in another State's internal affairs, 237 et seg. ; to quell revolution and anarchy, 287 ; instances of, 288 ; frequently practised by the Holy Alli- ance, 289 ; Chateaubriand on legality of, 289; Martens's rule, 291 ; amount of danger that can justify, 291 ; case of England and revolutionary Erance, 291 ; Lord Castlereagh's circular in 1821,293; Chancellor Kent on this, 294; rule as stated by Count Mamiani, 295 ; always lawful to repress wrongful in- tervention of others, 295. Intervention on behalf of oppressed sub- jects, 297 ; case of Greece in 1829, 300, 429. Intervention to check atrocious violations of laws of war, 429, 431 ; to check atro- cious violations of international law generally, 44 {see title " Solonian maxim"), 433. Intervention to maintain balance of power, Vattel's principles respecting, 280; Nassau Senior on, 285. Intuitive moralists, 49 ; may properly use modern utilitarianism to guard against self-delusion, and as best test of justice and truth, 58. Irregular warfare and combatants, 476, 489, and see titles " Guerilla " and " Levfo en masse." J. Javolenus on definitions, 2 n. Jefferson on rights and duties of neu- trals, 573. Jural, need and user of the word, 17 n. Jurisdictional waters, 237. 704 INDEX. JuB, diifieulty of rendering the word in English, 17 and n. ; " Jus " as op- posed to " Lex," 18 ; distinction illus- trated from Monro's ' Lucretius,' ibid, n. ; from St. Thomas Aquinas, 19 ; from Lord Bacon, 20 ; various mean- ings of " Jus " given by Warnkoenig, 18 n. ; by Nassau Senior, ibid. ; Sa- vigny's explanation of, 19. Jus commune gentibus, 3, 266. Jus consuetudinarium, 77. Jus gentium, 3, 266, 267. Jus inter gentes, 3, 4. Jus natnrale, 12 and n., 13, 14, 23 n. Jus postliminii, 509, 565. Jus prgeeminens, 204. Jus singulare, 20. Justice, expletory and attributive, 20 ; recognized as a sentiment and spring of action by modern utilitarians, 56. Kent, Chancellor, high authority of, 25 ; on natural law and positive law of nations, 26 ; on the ocean, 228 ; mari- time jurisdiction, 233; slavery, 270; that States are moral agents, and that every man is party to the acts of his State, 378, 379 and n. ; principle of warfare, 385 ; declarations of war, 405 ; Jus postliminii, 509 ; difference between rights of war on land and on sea, 536 : Hnenses to trade, 565 ; up- holds English doctrine of liability of enemy-goods in neutral ships to cap- ture, 661. Koch on treaties, 88. King's chambers, 233. L. Labour of inhabitants exacted by invading armies, 534. Lakes, property in, 244. Laveleye, M. De, on capture of private property at sea, 548. Law, various meaning of word, 8, 9 ; description by Hooker, 8 ; by Raleigh, ibid. Law, foreign, how recognized, 164. Law, municipal, whether defects in, ex- cuse breach of international, 326 ; di- stinctions as to substan tive laws and laws of procedure, 326 n., 328. Law, Roman : see title " Roman Law." Law of contraband, blockade, war, &c., see special titles. Law of nature, 9 ; broad and narrow senpe of word, 10 ; classification into Moral and Positive, 11. Lawrence, ' Commentaire sur Wheaton, ' cited, 117, 124, 131, 141. Legal and moral rights, &c., 15, 16. ' Le Louis,' case of, 269. Lev^e en mas.se, how treated as to laws of war, 483, 487. Lewis, Sir O. Oornewall, as to extradition, 202 ; pohtioal refugees, 688 ; capture of private property at sea, 554. " Lex " in contrast with " Jus ;" see title " Jus." Licenses to trade, 505. Lieitum not always Honestum, 16. Lieber, biographical account of, 81 ; on "Jural," and "Legal" Rights, 17; on State being a Jural society, 25 ; his work on Liberty and Self-government cited, 336 n. ; his ' Instructions for American Armies' cited in chap. xi. passim ; on quarter, 447 n. ; prisoners of war, 453, 460 ; parol, 466 ; truces, 474 n. ; "Insurrection," "Civil War," and " Rebellion," 474 n. ; levSe en mas,se, 482 ; " War-Rebels," 483 ; rights of occupying armies, 505 ; martial law, 506 ; military necessity, 532. Lincoln, President, on abolition of sla- very, 264. Lushington, Dr., judgment of, in the ' Helen,' 606 n., 607 ; in the ' Fran- ciska,' 639 n. Lushington, Godfrey, his Admiralty Ma- nual on contraband, &c., 615, 621, 625. M. Maoaulay, Lord, on Spanish partition treaties, temp. William III., 287 ; re- ferred to, respecting unity of sove- reign power in Imperial States, 142 a. Mackintosh, Sir James, on moral law, 29 ; conscience, 58 ; war, when justi- fiable, 361 ; insurgents, aid to, when justifiable, 298; recognition of inde- pendence of new States, 678. Maine, Sir Henry, on value of Roman law, 85 ; on Jus Haturale, 13 n. ; on Grotius and his school, 113; on privi- leges of war-ships and on fugitive slaves, Epileg. No. I. Mamiani, Count, on the Pentarchy, 118 n.; on nationalities, 254 n. ; intervention, 295, 298; manifesto of war, 405. Mare Clausum, 240. Maritime honours, 129 and n. Maritime powers, 1 17 n. Maritime warfare, rules of, different from those of land warfare, 536, 554. Marshall, Chief-Justice, on private and INDEX. 705 public ehipg, 168, 182; acquisition of Indian territories, 211 ; ike Me- dium filum, 222 ; slavery, 275 n., 434, 455. Martens, Q-ottingen, Prof., general recog- nition of his treatise at close of last century, 117, 501 ; on maritime powers, 117 n.; titles, 125; intervention, 291; free seas and " Maria ciausa," 240, 241 ; war-rights over property, 418 ; laws of war, 441, 442, 498, 536 ; alUes, 411 ; neutrals, 587. Martial law, 505. Mediation, 390 ; distinguished from arbi- tration, 392. Medii; old term for neutral, 571. Medium filum in aquatic boundaries, 222. Mexico, French intervention in, 121. Military necessity, what acts of waste and destruction it is held to justify, 529, 532, 549, 551, 553. Mill, , John Stuart, definition of utilita- rianism, 52 ; and see chap. iii. passim ; on conscience, 57 ; on intervention, 300 n. Milman, Dean, on Eoman law being the product of heathen Rome, 30. Momsen, his doctrine as to treaty-break- ing cited and censured, 41. Monro, editor of ' Lucretius,' his remark on "Jus" and '•lex," 18 n. Monroe doctrine, 120. Montesquieu, his primary maxims of In- ternational law, 35, 364 and n., 417, 533. Moral law, 11 ; to be found in St. Paul, 12 ; the " Lex Naturae " of the Stoics distinguished from positive law, 14; an essential part of jurisprudence, 22. Moral rights and obligations, 15, 16. Morals, study of, how far necessary for student of international law, 33. Municipal law, how it admits and incor- porates international law, 159. N. Naples, kingdom of, internationally inde- pendent though feudal vassal of Holy See, 95. Napoleon I., his assumption of title of emperor, 127; his detention of Eng- lish travellers on outbreak of war in 1803, 420; employment of prisoners of war, 459 ; system of supporting armies by " la maraude," 527 ; enor- mous war-contributions levied by, 554 ; continental system, Berlin and Milan decrees, 637. Napoleon III., Orsini conspiracy against, 345 n. ; intervention in Mexican afiairs. 121. Narrow seas, 240. Nation, meaning of, as distinguished from State, 5. Nationality, principle of, 254. Nations, law of : see Jus gentium. Natural law, 28, and see title " Jus na- turale." Natural obligations, 15, 23. NaturaHs Katio, 12 n. Naturalization, 357. " Naturam secundum vivere," Stoical maxim explained, 12. Nature, meaning of the word, in Stoic philosophy and Roman law, 266. Necessity, rights from, 149 n., 350. Necessity, military : see MiHtary. Negligence, when actionable, 316, 322. Neminem Iffidere maxim, 38. Neutrals and neutrality, law as to, chiefly modern, 570 ; much advanced and settled by American statesmen, 572 ; " National Neutrality " and " Conven- tional Neutrality," 575 ; neutralized States, 575 ; " QuaUfied Neutrality," 576; "Benevolent Neutrality" falla- cious, 578; standpoint for viewing neutral rights and duties, 579 ; rights to territorial inviolability, 582; right and duty to prevent acts of sovereignty by belligerents in neutral territory, 573 ; rights as to commerce and ordi- nary traffic, 593; fitting out of war- sliips, &c., 598 ; loans by, to a bellige- rent, 598 ; individual neutrals taking service in fleet or armies of beUigerent. 600; as to "Contraband, Blockade, and Search," see those headings ; as to colonial and coasting trade of bellige- rents, 655 ; neutral ships and enemy- goods, 658 (see title "Declaration of Paris ") ; neutral goods and enemy- ships, ibid. O. Obligations, natural, imperfect, and moral, their effect and importance, 15 and n., 16, 23 and n. Occupancy, acquisition by, 207, 216. Occupation by invading belligerents, 483, 496, 502. Ocean not subject of property, 226, 228. Oleron, rules of, 231. Orange-Eiver territory, 143. Ortolan on moral and positive law, 14 ; on privileges of ships, 171, 174, 179, 192 ; on belligerent rights over private property at sea, 545. 3 A 706 INDEX. Ottoman Empire within pale of modern international law, 130, 131 n. ; title of "Padisohah," 126. P. Pacifioo, Dan, case of, 403. Pacta Ber¥a, an all-important maxim, 40. Padisohah, title explained, 126. Paley on utility, 52 ji., 63 ; his philo- sophy " the gospel of enlightened sel- fishness," 52 n. PalmeratoB, Lord, as to sheltering poli- tical refugees, 689^ on international arbitration, 698. Paper blockades invalid, 635, 689. Paramonnt right. State's, over all things within its boundaries, 204. Paris, Declaration of ; see "Declaration"' &c. Paris, Treaty of, conduct of Russia re- specting, 43, 492 n. Parole, 465. Passports, 472. Paterfamilias, analogy between, and State as to responsibility for " culpa," 327, 337, 341. Paulus on " Jus singulare," 20. Peltier, case of, 346 n. Penn, his colonization in North America, 210. Pentaxdiy, the, explained, 117. Perfect rights, 147. Personal unions, 136. Petersburg, St., Conyention of, 441 and n. Phillimore, Sir Kobert, on moral per- sonality of States, 25 ; Eoman law, 83 ; independence, 96 ; continuity of State's rights and obligations, 104; State s duty to protect its members, 156 ; on private ships, 168; public ships, 178, see Epileg. No. I. ; Dominium emi- nens, 204 n. ; bequests, 206 n. ; fishery, 239; prescription, 250; balance of power, 286 ; intervention of Allied Powers in 1829 in behalf of Greece, 302 ; a State's right to protect itself when attacked by bands from foreign territory, 356 ; progressiveness of in- ternational law, 376 ; generalization of rights of belligerents over hostile persons and property, 633; private loans to belligerents, 599 ; the armed neutrality, 660 ii. ; Declaration of Paris, 666 ; recognition of indepen- dence of new States, 679 ; privileges of war-ehips and treatment of fugitive Blaves, see Epileg. No. I. Pirate, justiciable everywhere, 232. Politick refugees, see Epileg. No. I. Polk, President, on Monroe doctrine!, 120. Pollock, C. Bt on strict exactiffli of legal rights, 16 n. Poison, treatment of uncivilized tribes, 134; blockade, 634. PompeiuB, his knowledge of law of na- tions praised by Cicero, 90 n. Popes, elaims of, over islands, 208 ; over newly discovered countries, 209. Portalis, M., his paradox that war is a dispute between Governments only and does not affect rights of private members of States, 382, 555; aimed against British naval ascendency, 382. Positive law, 11 ; same as instituted, 12 ; distinguished from moral law, 14 ; de- fined, 65; positive international law, reality of, 70. Poste on diligence, 320t PostKminium, 509, 564. Preemption, 614. Prisoners of war, 452 ; Lieber's definition of, 453 ; who may be, 454 n. ; ancient treatment of, 273, 454 ; slaying, selling into slavery, holding to ransom, 454- 457 ; true principle of their treatment pointed out by Vattel, 457 ; and Mon- tesquieu, ibid. n. ; compulsory labour, 458 ; Lieber's rules as to who may be, 453 ; his rules as to their treatment, 460 ; rules recommended by Brussels Conference, 462 ; conditional release of, 464; paroling, 465; exchanging, 467; release of, at end of war, 468. Pritchard indemnity dispute arranged by prudent negotiation, 391. Private property of enemy always liable to capture at sea, 536, 544. » Privateers, 549, 557. Privileges of war-ships, 177, and see Epileg. No. I. ; of ambassadors, ibid, and 161. Prize, what is, 556. Prize courts, 556. Property, public, 203 ; its liability in war, 497, 499, 500 ; works of art, mu- seums, &c., 514. Protagorean arch-heresy in morals of " Homo mensura," 59. Protection of citizens. State duty, 156. Punishment, true theory of, 74. Q- Quarter, right to, 442 ; opinion as to, of Martens, ibid.; of Halleck, 443; of BluntscWi, 447; of Lieber, ibid. ; INDEX. 707 Brussels Convention as to, 448 n. ; case of weak garrison defending unte- nable post, 449 ; case of garrison re- fusing to surrender after practicable breach made, 450. ' Qui actu regit " recognized in interna- tional law, 106. Ealeigh, his description of " Law," 8, 9. Bansom of prisoners of war, 456 ; of ships, 563. Keal union, 137. "EeaBon of the thing," law of nations how far founded on, 92. Reasonable diligence, 329. " Reasoned truth," Q-rote's description of, 34. Eecognitiou of belligerency, 671 ; of in- dependence, 677. Recognition of revolted provinces, 670; meanings of term "Recognition," 677 n. Refugees, political, see Epilog. No. I. Reprisals, 349, 401 ; Vattel on, 401 ; HaL- leck on, 402; negative and positive, 404 ; military, 444 and n. Republics not subordinate in rank to monarchies, 128. Requisitions, 530, 532, 554. Responsibility of States for citizens, 158, 337 and n. Retorsion, 400. Rhodian laws of the sea, 230. Eights and duties, moral and legal, 15, 16, 75. Riparian proprietors, 224. Rivers, navigable, 220 ; rights of transit of, 224. Roman Empire of the Germans, 130. Roman law, its excellency and enduring utility, 83; its extensive influence in the moulding of modern international law, 84, 85, 206 ; golden age of, from time of Cicero to close of tlie era of the Antonines, 13 n. ; its best principles drawn from the Stoic philosophy, 12 ; it was the product of heathen Rome, 30 ; remarks of Dean Mihnan on this, ibid. ; why so few passages are found in the Corpus Juris on express subjects of international law, 89 n^ 373 n. ; reasons for believing that it was much studied by the statesmen and juriscon- sults of the Roman Commonwealth,ibid. ; it redressed injuries to honour, 153 n. ; di- stinction between the sea and rivers as to property, 225 and n. ; recognized cus- tomary laws of the sea, 230 ; alluvion, 244; accession generally, 248; pre- scription, 249, 255; servitudes, 255 ; wisdom of Roman jurists as to slavery, 265, and see Epilegomena No. I. ; their practical prudence combined with their fearless declarations of theoretical truth, 267; on " Diligentia," "Culpa," "Do- lus," duties of a prudent " Paterfami- lias," and on " Custodiaj prsestationem," see those titles. Roman laws of war, 373, 374, 413 ; theory of the Roman jurists on the origin of war, 371 ; they regard war as an institution Juris gen- tium, 370. 'Rulem de facto, recognition of, 106. Russia, repudiation by, of treaty obliga- tions, 43, 492 n. ; her emancipation of her serfs, 259. S. Saint Paul on universal moral law, 12, 28 ; Epistle to Philippians, showing the true " Honestum," 39. St Vincent, Earl, his maxim as to British flag sheltering fugitive slaves, 697. 'Sally,' case of the, 170. Sanction of positive law, 66-69 ; given to international law by war, 69. Sanderson, Bishop, on conscience, 27, 60. Savigny on Jus naturale, 13; on "Jus" and " Lex," 19 ; on the Ulpianic pre- cepts, 38, 39; on the Jus gentium, 268 ; on slavery, 272 n. Sclopie, Count, on exterritoriality, 184. Sea, open, 226 ; land-looked, 232 ; nar- row, 240; territorial jurisdiction over, limits of, 233 ; lands gained from or overflowed by, 248 ; ancient laws of, conf. titles Rhodian law, Consulato del mare, Oleron; warfare on, under different rules than those of land war- fare as to treatment of private pro- perty, 536 et seqg. Sea-coast, how far occupation of, gives rights over interior, 217. Search of vessels, 668. Security, a State's right to, 149, 150 et seg. ; conflict of this right with another State's right to independence, 279. Selborne, Lord, on imperfect obligations, 15 n., 23 n. ; on international duty of State to have a settled government that can repress outrage and crime, 307 n., 336 ; principle that in war a govern- ment and its people are identified, 555. Self-preservation, law of, the foundation of all State-rights, 149, 346, 350. 708 INDEX. Senior, Nassau, on international morality and international law, 11 ; on treaties, 41. Sepoy war, 476. Serfs, Russian, emancipation of, 259. Servitudes, 255 ; international, how created, 257; negatiTS and positive, ibid. ; how terminated, 258. " Seventeen hundred and fifty-six," rule of the war of, 655. Sheridan, General, his destruction of pri- vate property during the American civil war, 549. Sherman, General, same, 551. Ships, private, in foreign territorial wa- ters. 167 ; ships of war, what are, ibid. ; privileges of, in foreign waters, 176, and see Bpileg. No. I. Slave, fugitive, 272 and n., and see Epileg. No. I. passim. Slavery and slave-trade, 259, 260 ; con- trary to natural law, a polluted and polluting branch of Jus gentium, 267 ; stigmatized by the great Roman lawyers, 266 ; they do not attempt to suppress it violently, 267 ; long almost universally prevalent, and treated as a legal institution, 268 ; English and American decisions on this, 269 ; great change in general public opinion, 259 ; denial by many modern jurists that man can have property in man, 259; maxim that " the air makes free " gene- rally recognized, 272 and n., and see Epileg. No. I. ; danger of sudden and compulsory abolition of slavery by using force towards slave-holding nations, 274 ; intimate connexion be- tween slavery and slave-trade, ibid. ; old war-right of enslaving prisoners of war, 275 and n., 374, 454 ; instances of this being done as late as i7th cen- tury by civilized States, 457 ; practice now abandoned throughout Christen- dom, 275 and n., 434 ; retained by most African and many Oriental na- tions, 275 and n., 434 ; what may be done consistently with international law to check slave-trade, 276 ; England ought to refuse to enforce obligations arising out of slavery, see Epileg. No. I. Solonian maxim, that a wrong to one citi- zen ought to be resented by all as a common injury, should be appUed (with certain limitations) to the common- wealth of States, 44 and n., 443. Somersett the Negro, case of, 262 n. Sovereign, meaning of word, 6 ; Austin's definition of, 7 n. Sovereigns defaato and dejwre, only the former recognized by international law, 106, 110. Sovereigns, foreign, privileges of, when in foreign territory, 165. Sovereign State, meaning of phrase, 6. Sovereignty, Wheaton's classification of State-sovereignty into internal and ex- ternal, 7 n. Spain, her vast claims over parts of the ocean, and over territories in the new world, 209, 227 n. ; her doctrines as to rights of capture at sea, 663 ; refuses to accede to the Declaration of Paris, 666. Spanish succession, the partition treaties, 287. ' Springbock,' case of the, 618. Staatenbund, 138. Standing armies, huge, mischief of, 379. State, meaning of, as distinguished from " Nation," 5 ; independent political community, 6; sovereign, 6, 93; a moral agent, 23; subject to criminal law, 72 ; how affected by temporary anarchy,108; restoration, 109; numbers necessary for, 111 ; as to territory, 112 ; equality of States, 1 14 ; composite, 135, 141 ; separation of, 136 ; extinction, ibid., 144 ; federate, 138; imperial, 142 ; colonial, 144 ; diminution, 145 ; dismemberment, ibid. ; agglomerated States, ibid. ; conquest, cession, 155 ; perfect rights of ; see chap, viii., and see titles " Security," " Independence," "Property," &c. ; responsibility of, for citizens, 1 58, 690. ' Stephen Hart,' case of the, 617. Stephens, Pitzjames, classification of cri- minal law by, 326 n. ' Stert,' the case of, 653. Stoic philosophy, its influence over Eo-^ man jurisprudence, and thereby over international law, 12 and n., 13. Storm, on sack of towns taken by, 566, Story on utility, 62 ; dismemberment of States, 145; bailment, 341 n., 342 n.; on belligerents at commencement of war seizing enemy's goods and confis- cating debts, 422. Stowell, Lord, on consuetudinary law, 77; importance of his judgments, 82 ; equa- lity of States, 111 ; blockades, 132, 633, 634, 644, 653 ; colonial trading of neu- trals in aid of belligerents, 656 ; con- traband, 612, 614, 627, 633 n. ; pre- emption, 614 ; slavery, 269; liability of war-ship to local process, see Epileg. No. I. Sumner on equality of States, 115. Suspensions of hostilities, 469. INDEX. 709 " Svium cuique," maxim, Switzerland, 139 a. 44. T. Talleyrand, his furtherance of the Por- talis paradox that war does not affect priTate persons or property, 383. Terminology, correct knowledge of, indis- pensable, 2. Territorial waters, 223. Territory, whether possession of fixed, is necessary to constitute a State, 112 ; neutral, inviolability of, by belligerents, 573, 582 ; of neutralized States, 575. Thalweg, 221, 222. Thomas Aquinas on "Jus" and "Lex," 19. Titles and titular precedence, 123. Treaties, their binding powers, 40, 43; im- portance of, 87 ; declared personal, 105 ; of alliance, 409 ; importance of certain cardinal treaties in modern his- tory, such as peace of Westphalia, treaty of Utrecht, 88. ' Trent,' case of the, 629. Tricoupi on the Greek insurrection and the intervention of the powers of Christen- dom, 300 n. Troops, march of, through neutral terri- tory, 589. Truce, 469. Twiss, Sir Travers, on war, 71 u. ; rivers, 220 ; just causes of war, 151. U. Ulpian on Jus naturale, 13 n. ; on natu- ral freedom and equality of men, 265 n., 266 n. TJlpianic precepts, the, 38. Union, personal, 136 ; real, 137 ; incor- porating, 138. United provinces, 139 n. United States of North America, the greatest example yet seen in the world of a federal government, 140; their original federation, 141 ; constitution of 1787, 141 ; civil war in, between Federals and Confederates, 141 ; the Monroe doctrine, 120 ; slavery in, abo- lished, 141, 264; no naval oiEcer of, would now surrender a fugitive slave, 697 ; rules adopted by, as to territorial rights from occupancy, 217. Usucapion, 249. Utilitarianism, modern, chap. iii. in toto ; how far different from the old expe- diency school, 51 ; name of it given by J. S. Mill, 52 ; explanations of, by Mill, Grote, and Austin, 52-54 ; they make the true Utile necessarily coincide with the Honestum, 54 ; admit the reality of sentiments of justice and of conscience, 56, 57 ; their " Utile " a test of the Honestum which even the strongest intuitive moralista may consistently employ, 58 ; it is the best test of " rea- soned truth," ibid, and 91 ; principle that actions are to be judged as instan- ces of rules, 62. Utility, Burlamaqui on, 50 n.; Bentham, ibid. ; Paley, 62 n. ; and see last title. V. Vattel, definition from, of international law, 5 ; duty of nations to promote good of other nations, 37 ; their right to join in repressing gross violations of international law, 47 ; on utility, 61 ; perfect and imperfect rights, 147 ; right of State to self-improvement, 152 ; to protect its honour, 153 ; State's protection of individual citizens, 156; its responsibility for, 161 ; xenelasia, 197; property, 203; rivers, 222; ba- lance of power, 220 ; on war, 367, 385 ; standing armies, 380 and n. ; reprisals, 401, 402 n. ; quarter, 442; defence of weak posts, 450, 459; true principlea of treatment of prisoners of war, 457 ; exchange of, 467 ; on neutrals, 572. Visitation and search, 669. W. War, when justifiable, 151, 361 ; not a wild remitter to unbounded violence and savagery, 366 ; treated by the Ro- man jurists as an institution. Juris gen- tium, 370 ; ancient laws of war, their sternness, 373, 413, 497 ; gradual miti- gation, growth of secondary code of laws of war ; 497 ; after all mitigations war is and must be a cruel and horrible thing, 651 ; fallacy of attempt to treat war as a mere duel between govern- ments, 382, 555 ; it necessarily affects the persons and property of fsy^r^ memT ber of each belligerent State, 8.55; declaration of war, 405; who may law- fully take part in operations of, 176, 483, 487 ; rights to quarter, 442 ; pri- soners of, see title ; " Commeroia belli," see title; "Truce," "Exchange," "Pa- role," &o., see titles ; 'AairovBos ndXe/ios, instances of, 475; civil war, insurrec- tion, &c., see titles; " Belligerent rights," see title. 710 INDEX. War-rebels, 483. Ward, Plumer, on moral-sense school, 65. Wamkoenig on natural obligations, 23. Wellesley, Lord, his justification of British seizure of Danish fleet, 353. Wellington, Duke of, on respecting inde- pendence of other States, 295 ; on gar- risons refusing to surrender after prac- ticable breach has been made, 450 ; on atrocious violations of laws of war justi- fying third states in interposing, 429 ; his manifestoes to the insurgent pea- santry in the south of Prance, 480 ; his payment for supplies, 529 ; his defini- tion of martial law, 506 ; his opinion that guerilla warfare and risings of the inhabitants are very formidable to in- vaders, 490. Wheaton, definition of international law. In.; on sovereignty, 7 ; independence of States, 95, 98 n. ; various unions of States, 139 ; right of State to self -im- provement and advancement, 1.55; foreign ships, 172 ; exterritoriality, 177; war, 368,440. Woolsey on definition of international law, 2 n. ; internal government, 102 n. ; Monroe doctrine, 124 ; xenelasia, 199 ; privileges of foreign ships, 167. Xenelasia, 197, 199. THE END. 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